Mr. Speaker, I was saying that section 3 of the Canadian Charter of Rights and Freedoms examination regulations states that:
—the Minister shall...(a) examine the Bill in order to determine whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms...
Then subsections (2) and (3) of the Statutory Instruments Act requires an examination of regulations to ensure that they are not ultra vires and do not trespass unduly on existing rights and freedoms and are not in any case inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.
An action has been filed in the Federal Court by one Edgar Schmidt, until very recently a senior official of the Department of Justice, a department that advertises its mandate as being to promote respect for rights and freedoms, the law and the constitution.
Mr. Schmidt's duty since 1988 included drafting and advising on legislation, acting as a general counsel and special adviser to the department's legislative services branch. The statement of claim of Mr. Schmidt states:
Since about 1993, with the knowledge and approval of the Deputy Minister, an interpretation of the statutory examination provisions has been adopted in the Department to the effect that what they require is the formation of an opinion as to whether any provision of the legislative texts being examined is manifestly or certainly inconsistent with the Bill of rights or the Charter, and in the case of proposed regulations, whether any provision is manifestly or certainly not authorized by the Act under which the regulation is to be made.
Mr. Schmidt alleges the Department of Justice counsel have adopted a policy of interpreting the constitutional duty as meaning “no advice is given to the minister that he or she...has a duty to report to the House” so long as “some argument can reasonable be made in favour of its consistency with the charter, even if all the arguments in favour of consistency have a combined likelihood of success of 5% or less”.
If these allegations are in fact true, my privilege as a member of Parliament, indeed the privileges of each member of Parliament, have been breached.
Supposedly, when a bill is placed before the House as government bill, every member can be reassured by law that the bill is not in violation of either the Bill of Rights or the Charter of Rights and Freedoms by the fact that the Minister of Justice and Attorney General of Canada has examined the bill and finds it to be compliant with these fundamental Canadian laws.
If the allegations of Edgar Schmidt are true, we members cannot rely on the performance of these statutory and constitutional duties to know that a bill is consistent with the Bill of Rights and charter in deciding our vote as the bill proceeds through the committees and the House. Based on these allegations, the Department of Justice is approving proposed legislation that has only a mere remote possibility of being consistent with the charter or the Bill of Rights.
In contrast, Schmidt argues that the statutory examination provisions require the Department of Justice to determine whether the proposed legislation is actually consistent with the charter or the Bill of Rights, not on the possibility of whether or not the legislation could be consistent.
This hinders us as members of Parliament in the performance of our parliamentary duties. It constitutes an interference in the performance of our duties to exercise due diligence of the bills before us.
I believe every member of the House would agree that if these allegations are proven to be true, they show contempt for the authority and dignity of Parliament.
If the allegations of Edgar Schmidt are true, the credibility of the Attorney General of Canada and his officials on other matters related to our duties as members of Parliament is also put into question.
For example, in our committees, government officials are frequently accompanied by legal counsel from the Department of Justice. Questions are not infrequently posed to them, for example, as to whether a bill, if enacted, would abrogate or derogate from aboriginal or treaty rights recognized and affirmed by section 35 of the Constitution.
It is essential that the House and its committees are able to have full confidence in the impartial information provided by officials from the Department of Justice and that they are not limited by some secret policy, which would limit completely forthcoming answers.
In this same respect, section 25 is a part of our charter and it protects the respective collective rights of each of the aboriginal peoples and their nations and communities in the event that the upholding of an individual right might negatively impact a collective right. All members of the House depend upon the vigilance of the Minister of Justice, acting on the advice received by his or her officials to determine that there is no such negative impact.
Again, if these allegations are true, there has been no such vigilance. As Mr. Schmidt points out in his statement of claim, it is not practical for the minister and deputy minister to personally perform all aspects of their duties under the statutory examination provisions; they must rely on the legal counsel employed in the department to support them in the performance of those duties. As a result, the signatures of certification are mostly carried out by the chief legislative counsel of the Department of Justice under the authorization of the deputy minister.
Mr. Schmidt alleges in his statement of claim that “since about 1993”, for the past two decades in other words, “with the knowledge and approval of the Deputy Minister”, an interpretation of the provisions for statutory examinations “has been adopted”...to the effect that what is required is an opinion “as to whether any provision of the legislative text being examined is manifestly or certainly inconsistent with the Bill of Rights or the Charter”.
Mr. Schmidt alleges that if it is the opinion of counsel and the Department of Justice that
a. a provision is likely or even most certainly inconsistent with the Bill of Rights—even if the probability of inconsistency is 95% or more—, but
b. some argument can reasonably be made in favour of its consistency— even if all arguments in favour of consistence have a combined likelihood of success of 5% or less—,
no advice is given to the minister that he or she...has a duty to report to the House of Commons...and therefore no report is made...
The same is true with regard to regulations, and I will save reading that in the interest of time. They allege, again, that with the authorization and approval of the deputy minister, legal counsel in the Department of Justice have been ordered to follow these policies.
In essence, if these allegations are true, the interpretation and practice of the Department of Justice has unlawfully transformed the examinations under the statutory examination provisions to one as to whether there is even a very slender possibility that a bill or a regulation might be consistent with the charter and the Bill of Rights.
That is not the intent of the protection that Parliament believes it has been provided. The obligation of the Minister of Justice is to certify that the proposed legislation is actually consistent with the charter or the Bill of Rights, not the possibility of whether the legislation could be consistent. If the allegations are true, the minister and the deputy minister have knowingly, or unknowingly, been systematically in default of their lawful duties with respect to past legislation and the legislation which is before this House today.
Disturbingly, Mr. Schmidt alleges that he has personally brought these matters to the attention of the chief legislative counsel, the associate deputy minister, to whom the chief legislative counsel reports, and to the deputy minister, but that no action has been taken to bring the conduct of the required examinations into conformity with the law.
If we find that what we are being told is true, that senior officials in the Department of Justice have secretly adopted such an absurdly low standard, obviously we, as members, can no longer rely on any opinions rendered by the Minister of Justice and Attorney General of Canada about legislation. This would be the equivalent of knowingly asking Parliament to pass a bill which has a very high chance of not being in compliance with the Charter of Rights and Freedoms for an improper purpose, namely seeking some collateral advantage or some partisan political advantage.
There is no question that if the allegations are true, it would raise questions of confidence in the Attorney General of Canada, not only for members of Parliament but also for our constituents, the people of Canada. The public has a right to expect that a person should be held to the highest standard of conduct in exercising a public trust.
We, as members of Parliament, have a responsibility and a duty, and I might point out a right, to determine whether the alleged situation is true. When we pass a law that is later found to be null and void because it infringes upon charter rights, it is not only embarrassing to the dignity of the House of Commons and parliamentarians, it is costly. The government could find itself paying its own heavy legal costs, the costs of the other side, and dealing with the many persons other than that actual plaintiff, who have been affected by the invalid legislation.
As just one example, the courts have recently struck down three planks of the tough-on-crime legislation, and portions of the human smuggling law have been struck down as well. In fact, I have a comprehensive list of all of the pieces of legislation that have wound up before the courts—some resolved, some being appealed, some still being argued—since 2007. There has been a free-for-all of challenges because of legislation that offended, or that people believe offends, the Charter of Rights and Freedoms or the Bill of Rights.
Under Canadian law the Minister of Justice is charged with making policy, but he or she is also the Attorney General of Canada, charged with evaluating the legality of the law and with resolving this conflict. The incumbent of those two offices must rely on the impartial advice of the lawyers the government employs for this purpose, and those solicitors are also sworn to uphold the high professional standards of solicitors as enforced by their bar associations.
When considering your decision, Mr. Speaker, regarding this question of privilege, I know you will be looking for clear indications that I and every member of the House have been hindered, obstructed or otherwise interfered with in performing our parliamentary duties or that contempt has been shown for the authority and dignity of Parliament. The 22nd edition of Erskine May states on page 63:
It is of paramount importance that ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity.
Erskine May further states, on page 111:
The Commons may treat the making of a deliberately misleading statement as a contempt.
In both regards, I have no evidence to suggest that the incumbent Minister of Justice nor any of his predecessors have deliberately provided inaccurate information to the House, even implicitly. However, given the allegations of Mr. Schmidt, I believe it is my privilege and the privilege of all members that the Minister of Justice must do absolute due diligence in assuring himself of the exact situation that has prevailed in the provision of the pertinent information during this Parliament and to report his findings to the House in a frank, forthcoming and transparent manner. The fact remains that if the allegations are true, I as a member and all members have been misled by a minister.
O'Brien and Bosc, in House of Commons Procedure and Practice, second edition, state on page 115:
Misleading a Minister or a Member has also been considered a form of obstruction and thus a prima facie breach of privilege. For example, on December 6, 1978, in finding that a prima facie contempt of the House existed, Speaker Jerome ruled that a government official, by deliberately misleading a Minister, had impeded the Member in the performance of his duties and consequently obstructed the House itself.
I point out that Edgar Schmidt's allegations cover many years of practice involving governments of several prime ministers and parties. My question of privilege should not be considered to be partisan or an attack on the current government. However, I understand there are other members of other parties present today who wish to support this question of privilege as their own and I invite them to join me in doing so.
I recognize that generally speaking, when matters are before the courts, they are considered sub judice and are considered to be improper subjects for consideration of Parliament. However, I ask you, Mr. Speaker, to consider that the question of privilege that I am making, and the remedies that I will propose in the motion that I will make if the matter of privilege is upheld, are in no way dependent upon the findings of the court, nor will they interfere with the court in carrying out its duties.
Further, whether Edgar Schmidt wins or loses his case before the courts may depend on many extraneous factors. Does he have standing to bring such a case to court? Are there technicalities that may interfere with its success? Will the case proceed in an expedient manner, or will there be extensive delays for one reason or another? The government itself is reported to have held out to the court in question that the minister's reporting practices are an issue between the minister and Parliament. My question of privilege will give this House the opportunity to act on the government's own suggestion.
As well, the courts do not have jurisdiction to decide questions of privilege, nor to deal with the reporting arrangements between the Minister of Justice and Parliament, nor to provide for the kinds of remedies members of Parliament might wish to have if the privilege is upheld.
I am raising this matter at the earliest opportunity, as soon as has been possible after the breach occurred.
I move that this House express its deep concern that its privilege with respect to statutory and constitutional duties regarding the certification of the Minister of Justice that government legislation is consistent with the Canadian Bill of Rights and the Charter of Rights and Freedom may not have been properly exercised and that an opportunity be given to the Minister of Justice, in that capacity and as Attorney General of Canada, to examine the allegation that policies adopted and acted upon by his officials, with or without his knowledge, have resulted in his constitutional and statutory duties and his consequent responsibilities to the House having not been properly fulfilled, so that he may report to this House at the earliest opportunity regarding the allegations, and, if the allegations are true, to set out the actions he proposes to take a) to remedy the situation resulting from past applications of this or similar policies; b) the actions he proposes to take to deal with government bills currently before the House; and c) to prevent this situation from ever again occurring in the future.
The House would not know if the bills before it today are compliant with the charter. One could not be more current and expedient than that.
Further, the subject matter of my question of privilege arises from a very complicated, unprecedented situation, which has involved considerable research, discussion and debate as to how to deal with it. I have given it careful thought and consideration. I have attempted to exercise responsible due diligence before bringing this question of privilege before the House, trying to find the balance between being expedient and acting responsibly. I ask, Mr. Speaker, that you find that I am acting expediently and am meeting the test required for a question of privilege.
Beyond the question of expedient notice is the question of why now? Why not wait until later? The answer is that we cannot even estimate how long it will take for Mr. Schmidt's matter to be decided, even at the lowest court, and there is the possibility of appeal. In that interval, many important bills will have gone through Parliament without members knowing, without doubt, that they are consistent with the charter.
I am acting to maintain the respect and credibility due to and required by the House in respect of its privileges and to enforce the enjoyment of the privileges and the ability of its members to act on behalf of our constituents and of Canada. I recognize that any question of privilege, and especially one of this importance, is a serious matter.
I believe that my notice and question of privilege has been provided to you, Mr. Speaker, pursuant to the Standing Orders and the practice of the House.
I believe that this question of privilege is one of those rare occasions on which a question of privilege can and must be raised. Its importance justifies interrupting the business of the day so that it may be considered without delay. I ask that you find that all the key elements for my question of privilege be placed before the House.
Mr. Speaker, I also point out that if you believe any part of the proposed motion I intend to make should be changed to avoid procedural difficulties in the wording, my advance notice will give you the opportunity to suggest changes so that this issue may be dealt with in an informed and expeditious manner.
In conclusion, instead of moving the customary motion that the matter be referred to the procedure and House affairs committee, I intend to move the following motion, should you, Mr. Speaker, find a prima facie case.
My motion will also propose that pursuant to the principles of public right to administrative information and to complete transparency and accountability in the administration governing the public interest, the Ministry of Justice and Office of the Attorney General be ordered to release all materials related to these allegations of unethical and illegal conduct and misuse of authority so that the committee may determine if there is a serious systemic legal problem which may have impacted the methods of statutory interpretation and the legal concept of “reasonableness”.
My motion will also propose that a special committee of the House be struck and that the special committee be chaired by a member of the opposition, to hear such witnesses and examine such documents as are necessary to consider whether constitutional and statutory duties regarding certification of government bills have been properly fulfilled and if the privileges of this House have been breached or if this House has been disrespected, and to report to this House regarding its findings, and if the findings are that the duties have not been properly fulfilled, to set out recommendations for actions which should be taken to remedy that situation as it has occurred in the past, actions which should be taken to deal with government bills currently before the House, and actions which should be taken to prevent this situation from ever again occurring in the future.
In this regard, I would say that the officials of the Minister of Justice are not acting in a solicitor-client relationship to the government, but acting with regard to the exercise or non-exercise of statutory and constitutional duties of the Minister of Justice and the Attorney General as an officer of the Crown and must be totally independent of the government in the exercise of these responsibilities.
My motion will also propose that the legal counsel of the House provide advice to the special committee and that it hold all of its meetings in open session, except for those few occasions where examination of documents or witnesses might be privileged or confidential.
Mr. Speaker, I thank you for your consideration of this question of privilege and the motion I propose to make. I will await your prompt communication with me regarding this matter.
