Mr. Speaker, I am pleased to rise to discuss the questions addressed by the minister and the question of privilege raised by the member for Winnipeg Centre on Wednesday, March 6, in a broader context.
I have had the benefit of reading his intervention and the government's response thus far, as well as the comments of the leader of the Green Party in preparing my submission. I thank the Speaker for awaiting my submission on this matter.
The issue before us is the way in which the Minister of Justice vets bills for their compliance and consistency with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. In this regard, the member for Winnipeg Centre read into the record section 3 of the Canadian Bill of Rights and the requirement for examination of legislation for consistency with the provisions of the Bill of Rights.
To complete the record, I will read the relevant section of the Department of Justice Act, section 4.1(1), which therein states that the minister shall:
...examine...every Bill introduced in or presented to the House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity.
There is a related provision in the Statutory Instruments Act, section 3 (c), which requires an examination of a proposed regulation to ensure that:
...it does not trespass unduly on existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights;...
As the members for Winnipeg Centre and Saanich—Gulf Islands both indicated, there is concern as to whether the minister has fulfilled the purpose and spirit of these provisions as evidenced by courts finding certain legislative dispositions from the government to be unconstitutional.
These cases have run a spectrum. For example, R. v. Sheck and R. v. Smickle, cases from B.C. and Ontario respectively, struck down mandatory minimum penalties. R. v. Appulonappa, a British Columbia case regarding human smuggling, found that the impugned section of the Immigration and Refugee Protection Act violated Charter protections.
Recently, as well, R. v. St-Onge Lamoureux, a Supreme Court case, found that certain provisions of the Criminal Code with respect to drunk driving infringe the Charter's guarantee of the presumption of innocence, a foundational criminal justice precept.
There are other cases and, indeed, a series of cases in which the constitutionality of government legislation has been challenged, though courts have not yet ruled on these matters, and the legality of these government acts may not be known for some time after their enactment and enforcement.
The argument advanced by my colleague in raising this question is that if all these provisions are constitutionally inconsistent, there must be a deficiency in the review process, and the Minister of Justice has sought to address that point.
Indeed, the aforementioned provisions of section 4.1 of the Department of Justice Act require not only a review of proposed government legislation but the tabling of a report in the House in the event of inconsistency. Not only has unconstitutional legislation come before us, but it has been done without such a report.
I share in my colleague's concern that this has raised a serious issue for all parliamentarians.
As members know, and the Minister of Justice references, I had the privilege myself of serving as minister of justice and Attorney General of Canada. As such, I am well aware of the duties of the minister and of the obligations required by statute of that office.
In discussing this issue in the past, one might well question whether a different policy existed when I was minister and why no such reports were tabled when I was minister. My answer to these very valid questions is simple, and I believe it may shed some light on the process and whether or not a privilege violation exists or some other breach exists in this case.
As such, it may help you, Mr. Speaker, in adjudicating the question before you. First, if the review process works as envisaged, constitutional deficiencies are signalled or addressed in the policy development stage. At that point, they can be redressed and can be corrected immediately. Indeed if the inconsistency is corrected prior to legislation coming to the House, no report will be tabled. Indeed, no report is otherwise required.
As well, and this is the point that bears particular mention, the review of the Department of Justice, at whatever standard it has set, does not preclude the minister from seeking to satisfy himself or herself with respect to these issues that the legislation is constitutionally compliant at a much higher threshold—that is to say, the department's standard, which has been set for some time, even while maybe varying over time, may not be the same standard that the minister seeks, and seeking out more scrupulous review is something the minister can and ought to do in certain circumstances.
What is rightly before this House, raised as a question of privilege, is whether the minister has satisfied himself of the constitutional compliance of legislation; an obligation that the minister has, pursuant to statute. The government's contention has been that, because no reports have been tabled, the process is working. By contrast, I am of the view that because there has been a spate of legislation that is constitutionally suspect that has been tabled before this House and also because some of that legislation has been overturned, the process, by these very points, is failing.
In particular, in adopting the relevant sections of the Department of Justice Act, the Canadian Bill of Rights and the Statutory Instruments Act, parliamentarians have declared—and parliamentarians and Parliament have institutionalized this as acts of Parliament—that they seek to be informed of the constitutionality of bills and regulations. This is not something that the minister owes only to the Crown. This is something, a duty, that the minister owes to Parliament. The absence of section 4.1 reports, despite the introduction of unconstitutional legislation or legislation presently under constitutional challenge, has, in my colleague's submission, raised a question of privilege.
The government's response, and we heard it again today, is that the matter is not a question of privilege, in part, because the member did not raise it at the first available opportunity, and in part, because there is an ongoing court case in this regard and, in part, because the minister's constitutional rulings cannot be questioned.
Mr. Speaker, the underlying thesis of my submission to you today, and it is a distinguishable one, is that the conduct in question ought to be considered as contempt of the House of Parliament, clearly, distinguishable from that which the Minister of Justice has been addressing today and within the framework provided by O'Brien and Bosc in this matter.
As members will recall, privileges are specifically defined, whereas contempt may be, and here I am citing from O'Brien and Bosc, at page 82, “...other affronts against the dignity and authority of Parliament”, which come also within the purview of the Speaker's rulings and responsibilities.
I realize even using the word “contempt” brings with it very grave and serious connotations.
Let me be clear at the outset. I do not wish to cast aspersions, as has been suggested by others, on the minister's personal competence or the competence of Department of Justice officials, many of whom I have had the privilege to work with while being minister. Indeed, I speak not to the intent of the minister. He said he does not believe he ever tabled any unconstitutional legislation. I am prepared to accept that at face value, that the minister believes he never tabled, knowingly, any unconstitutional legislation.
However, I am referring not to the minister's intent with respect to charter review but, rather, to the effect of such review, to the consequences of such review, and it is the effect of that review that engages the constitutional responsibilities of us as parliamentarians, let alone our responsibilities with respect to the related issues of oversight and the like.
As O'Brien and Bosc specifically note regarding contempt:
...the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands....
I would submit that members are impeded in the performance of their function. Indeed I would say they are impeded in their constitutional responsibility of ensuring constitutional oversight when they are not provided complete constitutional information with respect to proposed legislation.
Members are impeded in the performance of their constitutional functions and responsibilities as holders of the public purse when they pass bills that invite costly and lengthy constitutional challenges against which the government must then defend at taxpayers' expense.
Members are impeded and the dignity of the House is undermined when reports for such information are routinely denied. Moreover, these three statutes to which I referred constitute commands of the House that the minister ensure that government legislation and regulations comply with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.
Indeed, as Speaker Fraser ruled on April 19, 1993, which is found at page 18105 of the Debates:
It is difficult to conceive of any command of this House that could have more legitimacy than one contained in a law passed by this House.
Statutes are the highest form of command that can be given by this House. In my view, the disregard of that legislative command, even if unintentional, is an affront to the authority and dignity of Parliament as a whole and of this House in particular.
Again, we are speaking about legislative commands. We are speaking about statutory directives, those which engage the responsibilities of members of this House. It is not a matter simply between the minister and the Crown. It is not simply a matter of what the minister believes; it is the effect that accrues from the constitutional responsibilities with respect to these statutes.
Speaker Fraser's ruling also instructed, and this is of particular relevance here:
...the tabling of documents constitutes a fundamental procedure of this House. It is a part of our rules and ensures that members have access to the information necessary for them to effectively deal with the issues before Parliament....
Members cannot function if they do not have access to the material they need for their work and if our rules are being ignored and even statutory instruments are being disregarded.
I would note as well the list, cited in O'Brien and Bosc, of U.K. precedents regarding contempt wherein such contempt finds expression:
without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee;
without reasonable excuse, disobeying a lawful order of the House or a committee;
interfering with or obstructing a person who is caring out a lawful order of the House or committee.
I would submit that the comments of Speaker Fraser regarding “legislative command” also enveloped that which is envisaged by the U.K. phrasing of “lawful order”. The additional grounds here of “refusing to answer a question or provide information” I raise in relation to how speakers have often ruled on thorny questions of privilege, for lack of a better word.
Often speakers lament that items raised as points of order are really points of debate. Similarly, speakers suggested that, while something may be a legitimate grievance, there are other avenues within the parliamentary framework to address the conduct at issue rather than a question of privilege or an allegation of contempt; or speakers may suggest that the matter concerns a constitutional issue that is beyond their authority.
I assert that these other avenues have been fully frustrated in an effort to seek the results of the government's charter review, which engages the constitutional responsibilities of the members of the House. I draw attention, for example, to question 975, answered orally on Friday, November 23, on which the government asserted privilege over the actual reports prepared in section 4.1 of the Department of Justice Act and their preparation.
As my colleague from Winnipeg Centre noted, any solicitor-client privilege here can be waived by the government, and arguably the real privilege here is that which is actually owed to the Parliament, which itself may be validly asserting its parliamentary privileges and authority in seeking such documents. It should be noted here that the minister is not the one seeking the review conducted per se; rather, the statute requires that such a review be undertaken by the Department of Justice. It is Parliament that has asked for this to be done, something we must bear in mind when considering contempt, and it is the issue of contempt that I am putting before you, Mr. Speaker, four-square as it engages all the issues I have been addressing and, in particular, our constitutional responsibilities as parliamentarians, the Speaker engaging with these responsibilities, and the commands set forth in acts of Parliament with respect to which the government must reply, and reply to Parliament, not simply as a private matter between the government and the Crown.
Moreover, with regard to the specific standard of review, I refer you to an exchange I had with the Minister of Justice on Tuesday, November 6, 2012, to which the minister referred at the justice committee, in which I asked several times for the specific standard being applied by the department and minister but to which no concrete response was given.
I posed a similar question in the House to the Minister of Citizenship, Immigration and Multiculturalism on Tuesday, May 29, 2012, at page 8447 of the Debates, with again no specific standard announced.
I assure you that even a cursory glance at the Debates will yield colleagues' questioning of the government regarding the constitutionality of its legislation. This is not a new or novel issue but one with which the House has had great concern for some time now, as it should, as its authority, its dignity, and the integrity of its legislative commands as set forth in these acts of Parliament and adopted by the House are what are at stake here.
With respect to the specific question of the standard of review to which the minister referred, and how the review is conducted, my colleague, the NDP member for Gatineau, proposed that the justice committee study this question.
Lest one draw the conclusion that it is only the opposition that is concerned on this point, the Conservative member for Edmonton—St. Albert went so far as to suggest the member for Gatineau table the motion, stating, “I am very sympathetic to your motion and to your desire to make sure the legislation is charter-proof”. Indeed, the vote to table the motion succeeded, something only possible with the help of the Conservative Party.
While the member ultimately voted against the motion during subsequent debate, he expressed his view that the committee's study was precluded because of the sub judice convention, as well as some concerns over the justice committee being the proper forum for such a debate.
The point here is that parliamentarians from all parties have raised concerns in this regard, and it is an issue that concerns all parliamentarians from every party.
Regrettably, traditional avenues for debate, both in the House and in committee, have not yielded answers, nor have other requests, including my order paper questions and ATIP requests from journalists. As such, I believe you should find that there is an issue here for the Standing Committee on Procedure and House Affairs, an issue that it may most properly address.
With regard to the sub judice convention and the argument that this whole matter was precluded because there was a related court case in this regard, to which we heard reference again today, I will make two brief submissions.
The first is that we are dealing with the desire of parliamentarians to have legislation reviewed for charter compliance. Ultimately the question before the court in the Schmidt case is whether the interpretation being applied by the department or minister is lawful. Parliament need not concern itself with this inquiry, as it is a separate and distinguishable matter. To be clear, parliamentarians may desire that the threshold be higher than the bare minimum required by law. As such, a review by a committee would allow parliamentarians to amend or modify the statute and pursuant regulations if they see fit upon the conclusion of such a study.
The second element has to do with the privilege attached to the report and the process by which such reports are generated. If legislation is being examined, as envisioned by the statute at issue, an assessment of the constitutionality of the provision therein undoubtedly occurs. Whether this ultimately results in a report to Parliament depends on the threshold standard being applied. Even if such a report is prepared but not tabled, parliamentarians may want access to it. In that regard, it may be appropriate for the committee to consider whether the statute should be modified to allow for the public release of such reports rather than through tabling, or even specify the privilege in relation to the document such that a minister before a committee would and could testify as to how a particular bill was reviewed.
The Schmidt statement of claim, as my colleague mentioned, alleges that the current standard is only one of 5% consistency.
The former parliamentary secretary to the minister of justice asserted before the Standing Committee on Justice:
When that analysis is done, it is a qualitative analysis; it is not based on any percentages or quotas.
The legality of the approach being applied, whatever that approach is, is something for the court to decide, admittedly, but the sufficiency of whatever approach is being applied is something for parliamentarians to decide. As parliamentarians, we have asked for it in a statute requiring constitutional compliance of any government bill tabled. Yet a repeated pattern has emerged before us, which cannot be ignored, of government legislation being overturned on charter grounds, with no report to Parliament of any inconsistency and a spate of charter challenges now before the courts, again without any reports on inconsistency being tabled.
As Speaker Fraser commented in the aforementioned 1993 ruling, “there are people in departments who know these rules and are supposed to ensure that they are carried out”.
It may be that the rule is faulty; it may be that the minister's interpretation of the rule is incomplete; it may be that there are standards that are not fully appreciated; or it may be that there is some other procedural issue. These are all questions that the procedure and House affairs committee could address in fashioning potential remedies, which may include legislative change if Parliament should so wish. In that regard, I refer you, Mr. Speaker, to the 42nd report of the Standing Committee on Procedure and House Affairs presented to the House on March 7, wherein the committee affirmed:
As part of its privileges, the House has the exclusive right to regulate its own internal affairs, which includes the control over its own proceedings as they relate to the House’s constitutional functions.
The House's constitutional functions include ensuring that our legislation accords with the Constitution. This too is reflected in the oath on which O'Brien and Bosc comment. They state:
When members swear or solemnly affirm allegiance to the Queen as Sovereign of Canada, they are also swearing or solemnly affirming allegiance to the institutions the Queen represents, including the cause of democracy.
Yet the Supreme Court of Canada has said “democracy in any real sense of the word cannot exist without the rule of law”. The court has gone on to state in the reference regarding secession of Quebec that the “rule of law principle requires that all government action must comply with the law, including the Constitution”.
There can be no doubt that members in this House and Parliament as an institution have the obligation to respect, promote, preserve, protect and defend our Constitution, of which the Charter of Rights and Freedoms is the centrepiece.
Mr. Speaker, I draw your attention to a ruling made by your predecessor on Wednesday, November 21, 2001, in which he commented upon, “The alacrity with which the minister was able to fulfill her statutory obligations following the raising of this question...”. In that case, questions were raised repeatedly about a minister's failure to table documents before the House. It is worth noting that the Speaker considered the matter, even though a great deal of time had elapsed between the first alleged breach and the raising of the question.
The minister eventually tabled the document and the Speaker commented:
Strictly speaking, these defects do not negate the minister's fulfillment of her statutory obligation, but they do point to a carelessness that appears to be characteristic of the way in which these matters are being handled by the officials in her department. Were there to be a deadline for tabling included in the legislation, I would not hesitate to find that a prima facie case of contempt does exist, and I would invite the hon. member to move the usual motion. However, given that no such deadline is specified, I can only find that a legitimate grievance has been identified. I would encourage the hon. Minister of Justice to exhort her officials henceforth to demonstrate due diligence in complying with these and any other statutory requirements adopted by parliament. I look forward in future to the House being provided with documents required by law in a timely manner.
We know that the minister has an obligation to table constitutional reports at the first convenient opportunity, admittedly a somewhat nebulous phrase but one that still implies some sense of urgency. Certainly such reports ought to exist now for legislation that was proposed months ago, such as the myriad citizenship bills that are being challenged presently before the courts.
While it may be for the committee to suggest alternative phrases, it ought to inquire whether such reports have been made but not tabled. As such, it would clearly confirm any prima facie contempt found by the Speaker, one which ought to be found to exist given the various series of rulings determining that government legislation has in fact not accorded with the charter.
To address the concern of the government House leader that this matter has not been raised in a timely fashion, I refer you, Mr. Speaker, to the aforementioned ruling with respect to document tabling whereupon, in first raising the matter in 2001, the then member for Surrey Central spoke of 16 incidents of statutory violations arising between September 16, 1998 and December 13, 2000. I believe this case shows us that there may be a series of incidents and it is only reasonable and appropriate for members to await the establishment of a pattern before bringing a contempt matter to the Chair's attention.
We have awaited and have now discerned and demonstrated a pattern with respect to legislation being tabled in the House that is constitutionally suspect. With respect to that legislation, some of it being held to be unconstitutional, such suspect constitutional legislation is in fact now before the courts. I believe that we are in the same situation now as in the matter in 2001, to which I referred.
Indeed, lest it be thought that all of these cases are in the past, on March 12 of this year, the Court of Appeal for Ontario ruled in a case regarding the 2009 Truth in Sentencing Act. Although it did not overturn the law, these are the important words:
—the Crown’s urged interpretation of [the law] would result in disparate and unjust treatment of similarly situated offenders and potential violations of an offender’s [section] 7 and [section] 12 Charter rights.
The judge in that case goes on to say:
The effect of the Crown’s argument, in my view, is to ask this court to rewrite [the statute].... There is no doubt that Parliament, having enacted the sentencing objectives and principles in the Code, is free to alter them, so long as this occurs without violating the Charter.
The judge then queries:
—if Parliament intended to depart so profoundly from these bedrock principles of Canadian sentencing law (assuming that such a sea change in the law could survive full constitutional scrutiny)....
An arguably charitable reading of this ruling is that the government's deficient drafting allowed for the legislation not to be overturned because it could be interpreted in a way that did not violate the charter. However, if the government's intentions were what it indicated in submissions, surely it ought to have been aware of the charter implication and by extension ought to have submitted a report to Parliament.
This is the kind of action that serves as the basis for my underlying submission here today of the contempt allegation. Was this bill vetted? Was a report prepared? If so, why was it not tabled? What was the minister's involvement in this vetting? What about Parliament's constitutional obligations in this regard?
As I draw to a close, I truly believe that an inadequately low or arguably non-existent standard is being applied during the constitutional review process. It is one that allows unconstitutional legislation to flow from the department, bearing a certification that such a review has occurred and without a report being tabled.
Certainly parliamentarians did not intend this review process to be a rubber stamp, just as it cannot be said that we have been seeking to adopt unconstitutional legislation. Moreover, it cannot be said that the minister is fulfilling the order that the House, in legislation, has requested of him, if indeed the legislation that bears his approval is in fact unconstitutional and is being submitted to Parliament without the proper vetting, which would have demonstrated that prima facie unconstitutionality to begin with.
I believe this contempt matter is one the committee should investigate and report back upon, as my colleague suggests, regardless of whatever legal proceedings may be otherwise occurring.
I would also like to remind the government of its little-used power to ask for references from the Supreme Court of Canada on matters of which it may have constitutional concern. Indeed, I am proud that the government in which I served asked such a question with respect to the same sex marriage issue. It specifically asked whether the legislative proposal was:
—consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent?
Perhaps the procedure and House affairs committee may suggest that the government seek references more often when it is unsure, as part of its appreciation of the remedies in this regard.
In conclusion, the government ought to adopt a more robust approach to legislative review rather than providing us constitutionally defective legislation, as confirmed by the courts, and in the process engaging us in contempt of the House, something which we ought to remedy with all deliberate speed for the sake of Parliament as an institution and for the sake of all Canadians.
