Mr. Speaker, I rise on a question of privilege on an issue which I believe constitutes a contempt of the House by the government in relation to the publicly stated efforts of the government to undermine the Canadian Wheat Board with the intent to destroy the Canadian Wheat Board. Prior to referencing precedents which support this submission, I would provide the following by way of background.
According to the federal government's MERX web site, operated and controlled by Public Works and Government Services Canada, the following notice of proposed procurement was placed on the site on August 11, 2011: Reference Number 225648, entitled “Assessment and Identification of Assets and Financial Contracts of the Canadian Wheat Board”. The contracting authority listed is a senior contracting officer with Agriculture and Agri-food Canada. According to the notice of description contained on the site, the purpose of the contract is stated as follows:
The purpose of the audit is to provide reasonable assurance of the total financial impact of the repeal of the Canadian Wheat Board Act and the dissolution or winding up of the CWB after the final pooling periods (expected to be July 31, 2012). The final pool period may be conducted as usual under the Act.
The notice of description continues under the audit's objectives:
A. To provide assurance that the financial reporting is up to date and that all financial transactions have been accurately recorded in order to determine the potential financial impact of the repeal of the Canadian Wheat Board Act and the dissolution or winding up of the CWB.
B. To provide assurance that all agreements/contractual and licencing agreements and all marketing plans as well as the security provided for those said plans entered into by the Canadian Wheat Board are all documented and verified in order to determine any potential liabilities and to review all termination clauses. This will also include a review of all documentation with financial implications, such as outstanding legal actions.
The Speaker will note that on at least two occasions in the notice of description, the government has stated clearly and unequivocally that the reason for the audits is based upon “the repeal of the Canadian Wheat Board Act and the dissolution or winding up of the CWB”.
The contempt arises from the direct reference that the repeal of the Canadian Wheat Board Act and dissolution or winding up the Canadian Wheat Board will follow the final pooling periods expected July 31, 2012.
In other words, there is the presumption that the repeal of the Canadian Wheat Board Act, a procedure which can only be sanctioned by an act of Parliament, will in fact occur. The government has made no secret of the fact that legislation to repeal the Canadian Wheat Board Act will be introduced this fall. That is its right. What the government has not stated as clearly as does the notice of proposed procurement is that the pith and substance of the act will be the “dissolution or winding up of the CWB”.
It is my submission that the posting of this notice of proposed procurement with the wording provided is a contempt of this House on the basis that no legislation has been tabled, let alone passed, upon which such a specific intent can be supported.
I would add to this submission the following.
In the July 28, 2011 issue of the Western Producer, an article appeared entitled, “Open market will kill CWB”. In the article reference was made to the establishment by the Minister of Agriculture and Agri-Food of a task force, which is “to look at issues that are likely to arise once legislation to end the single desk is passed.” The task force is chaired by Agriculture Canada deputy minister John Knubley and consists of representatives of the Canadian Grain Commission, Canadian International Grains Institute, Grain Growers of Canada, Pulse Canada, and the Canola Council of Canada.
On September 6, 2011, my office received from Agriculture and Agri-Food Canada the terms of reference of that task force. As the Speaker will note, the opening statement of the terms of reference reads as follows:
The group will take as given that:
-- all grains will be removed from the monopoly by August 2012.
I would further note that the reference of the task force provides for the expenditure of public funds of which has yet to be revealed to this House. I quote:
We are targeting up to four meetings in Winnipeg between mid-July and early September, with video/tele conferencing as required. The Department will reimburse invited participants for approved travel expenses.
It is my understanding that the minister was to receive a report from that task force on September 15, 2011.
There is no ambiguity to this statement. Given the specifics contained in the notice of proposed procurement referenced above, the terms of reference of the task force complement the procurement notice and serve to reinforce the contempt I am outlining, namely, that neither the notice of procurement nor the terms of the task force cited are based upon any legitimate action of the House, which is the only body that can authorize a repeal of the Canadian Wheat Board Act and the dissolution or winding up of the CWB.
The government presumes that the act has been repealed, which in fact it has not. It has not been presented; it has not been debated; it has not been amended or in any way pronounced upon by the House or the other body down the corridor.
By way of precedence, I refer the Speaker to the decision of Speaker Fraser on October 10, 1989, at pages 4457 to 4461 of Debates, as contained in Selected Decisions of Speaker John A. Fraser, pages 3 to 11. The context of the decision was the following:
In August 1989, during the summer recess, the Government placed an advertisement in newspapers across the country stating that the proposed new Goods and Services Tax (GST) would come into effect on January 1, 1991. When the session resumed on September 25, 1989, the...Leader of the Opposition raised a question of privilege relating to the said advertisement. He was of the opinion that by placing newspaper advertisements announcing an effective date for the GST, the Government denied the role of Parliament in the imposition of taxes and thereby prejudiced proceedings of the House and its committees.
Speaker Fraser indicated it was not his intent, and rightly so, to rule upon the content of any legislation the government proposed or brought forward to the House, and it is not the intent of this submission either. However, Speaker Fraser did begin by expounding upon the arguments presented by the Liberal leader at the time, and I quote from pages 4 and 5 of Selected Decisions of Speaker John A. Fraser:
...first, that the advertisement prejudices the future proceedings of the House and of the Finance Committee...; and second, that the advertisement is a contempt of Parliament because it leads readers to infer that the House has no role in the passage of the tax, thus misleading the Canadian public concerning the procedures employed by Parliament in adopting such legislation.
As to the first point, Speaker Fraser did acknowledge that the House did have before it a technical paper on the subject which was under discussion. This is a fact not in evidence on the matter that I now raise before the House.
The Conservative government of the day, in its defence, presented the following in response. Again, I quote from page 5 of Selected Decisions of Speaker John A. Fraser:
[The Minister of Justice] explained that in the budget which was approved by the House, the government had indicated that the Goods and Services Tax would be implemented on January 1, 1991. Finally, since the Committee is presently studying the issue, he suggested that no case can be made for the claim that the Committee's work is being impeded.
Again, Mr. Speaker, neither of the facts referenced by the then minister of justice are in evidence with respect to the matter I now place before you regarding the Canadian Wheat Board. There is no reference to the Canadian Wheat Board in any context in the budget the government tabled on June 6, 2011, nor has a technical paper nor a cost benefit analysis of any kind been presented to the House.
Finally, neither is the agriculture committee nor any other committee of the House examining in any respect the issue of the Canadian Wheat Board.
However, the government has stated in its notice of proposed procurement a specific date as to when the functioning of the Canadian Wheat Board's pooling system, as currently provided for by an act of Parliament, will cease, that being July 31, 2012.
Speaker Fraser went to considerable length to provide clarification as to what constitutes a contempt. In this regard he cited Speaker Sauvé of October 29, 1980 at page 4214 of Hansard. Rather than take time to quote at length those remarks, I would refer to the Selected Decisions of Speaker John A. Fraser on pages 6 and 7. Speaker Fraser was quite clear and this point is key to the argument I present today. I must quote from page 10 of Selected Decisions of Speaker John A. Fraser:
However, I want the House to understand very clearly that if your Speaker ever has to consider a situation like this again, the Chair will not be as generous. This is a case which, in my opinion, should never occur. I expect the Department of Finance and other departments to study this ruling carefully and remind everyone within the Public Service that we are a parliamentary democracy, not a so-called executive democracy, nor a so-called administrative democracy.
Speaker Fraser concluded by stating:
This advertisement may not be a contempt of the House in the narrow confines of procedural definition, but it is, in my opinion, ill-conceived and does a great disservice to the great traditions of this place.... [T]his ad is objectionable and should never be repeated.
He went on to say:
[I]f ever this issue has to be debated and considered by this House again these comments will serve to guide the House in its deliberations.
I want to repeat that, Mr. Speaker, because it is important to your decision:
[I]f ever this issue has to be debated and considered by this House again these comments will serve to guide the House in its deliberations.
I would add to the preceding the following from a decision by Speaker Parent, found at pages 8987 to 8988 of Debates March 13, 1997 and referenced in Selected Decisions of Speaker Parent on pages 7 and 8 wherein Speaker Parent, in reference to a matter related to government advertising in the public domain prior to final passage of legislation stated:
[W]here the government issues communications to the public containing allusions to measures before the House, it would be advisable to choose words and terms that leave no doubt as to the disposition of these measures.
Those whose duty it is to approve the wording of communications to the public for a Minister must surely be aware that the terms used in parliamentary language have a very specific meaning. Trying to avoid them or to use them for advertising purposes shows a lack of consideration for the institution of Parliament and the role of the Members in the legislative process.
What should be taken note of is the fact that the Conservative government of the day, in respecting the admonition of the Speaker, withdrew from circulation brochures referencing the implementation of the goods and services tax at that time.
In responding to a question of privilege concerning the distribution of brochures related to the implementation of the GST, on December 18, 1989, at page 12 of the Selected Decisions of Speaker John A. Fraser, he stated:
...subsequent to the Chair's ruling on the advertisements for the GST, steps had been taken to have all offending materials returned to the Department.
I refer as well to a ruling by Speaker Milliken on the issue of privilege again related to government advertising found at pages 6276 and 6278 of Debates, May 29, 2008. In his decision, Speaker Milliken stated that the advertising in question at the time contained caveats which demonstrated that there was no “misrepresentation of the proceedings of the House or of any presumption of the outcome of its deliberations”.
He also stated:
It is with these precedents in mind that I reviewed the advertisements in question. They contain phrases such as “the Government of Canada is proposing measures”, “These important measures, once in effect,” and “These measures are currently before Parliament”. In my view, the advertisements clearly acknowledge that these measures are not yet in place.
Even a cursory examination of the text of the advertisement placed on the government MERX website on August 11 of this year fails to meet the test of clarity referred to by Speaker Milliken in his decision of May 29, 2008 referenced above.
I would also point to a statement of the government House leader on May 15, 2008, on page 5922 of Debates, during a debate on a question of privilege related to government advertisements wherein he stated:
...that advertising undertaken by the government should not presume or suggest that a decision had been made already when it had not been taken by the House of Commons or by Parliament.
Obviously, the government's actions with the MERX ad and the actions of spokesmen in western Canada are clearly operating on the assumption that the Canadian Wheat Board Act is gone as of next year. Legislation has not even been introduced in the House.
At page 85 of the second edition of the House of Commons Procedure and Practice it states:
By far, most of the cases of privilege raised in the House relate to matters of contempt challenging the perceived authority and dignity of Parliament and its Members.
In that regard, I would remind the House of the decision of Speaker Milliken on March 19, 2001, at pages 1839 to 1840 of Debates. With respect to a matter of the failure of the government to provide a legislative briefing to members, the Speaker stated:
To deny to members information concerning business that is about to come before the House, while at the same time providing such information to media--
Or in the case before the House today, the public and potential contractors:
...that will likely be questioning members about that business, is a situation that the Chair cannot condone.
In respect to the matter I have presented today, it is my submission that the government has failed to heed the advice and admonishments of the government House leader himself or of previous Speakers on this matter.
Just before I close, to add a little context I would also add this one final point with respect to the actions of the government in this matter.
Section 47.1 of the Canadian Wheat Board Act is very germane to the argument presented today, which in part states:
The Minister shall not cause to be introduced in Parliament a bill that would exclude any kind, type, class or grade of wheat or barley, or wheat or barley produced in any area in Canada, from the provisions of Part IV, either in whole or in part, or generally, or for any period, or that would extend the application of Part III or Part IV or both Parts III and IV to any other grain, unless
a. the Minister has consulted with the board about the exclusion or extension; and
b. the producers of the grain have voted in favour of the exclusion or extension, the voting process having been determined by the Minister.
It is my submission that the announcement that the government is seeking audit advice on the process of “dissolution or winding up of the CWB”, which will be under way by July 31, 2012, constitutes a breach of the act as it currently stands.
As far as I am aware, the government has not consulted with the board of directors of the Canadian Wheat Board on any bill presented to Parliament and the minister has not called for any plebiscite of producers in respect to that legislation. In fact, the Canadian Wheat Board held a plebiscite in which 62% said they do not want the minister to touch the bill.
To summarize, the case of contempt I present here is different from that raised on October 8, 1989, in the following aspects.
First, the notice to propose procurement is clear in that it is proposing to let a contract for audits of the Canadian Wheat Board, based upon the stated fact of “dissolution or winding up of the CWB after the final pooling periods (expected to be July 31, 2012)”.
Second, unlike the 1989 case referred to, the government has not even attempted to provide this House or any committee of this House with any kind of technical paper or any indication that it has done due diligence and completed its own economic impact assessment on any proposed changes to the Canadian Wheat Board, let alone “dissolution or winding up”.
Given the admonition of Speaker Fraser, it is my submission that the case he warned against reappearing has now arisen and one with even less legitimacy than that of the one he decided upon in October 1989. As a consequence, it is my submission that the text of the notice of proposed procurement and the terms of reference of the task force established by the Minister of Agriculture would leave the reader to conclude that the Canadian Wheat Board will be repealed, even though no such legislation in any form has been tabled in this House, and that in less than a year the Canadian Wheat Board will be in the process of dissolution and winding up, two facts which will negatively impact upon the board, those farmers operating under it and those doing business with that board.
My privilege, as well as that of all members of the House, has been affected by the fact that the public has been placed in a position to conclude that Parliament has acted on the future of the Canadian Wheat Board on the basis of a notice of procurement when in fact it has not.
Therefore, I would seek from the Speaker a finding of contempt and I am prepared to move the appropriate motion.