Roger Gallaway

[Supply, November 17th, 2005]

Mr. Speaker, I rise on a point of order concerning the motion before us which you have just read, and I wish to submit to you that it is out of order in that it would ask you as Speaker to do that which is an impossibility. It is a constitutional impossibility because it offends the practice and the constitutional form and design of how the House must properly communicate with Her Excellency the Governor General, because it asks you to transmit a resolution, if passed, of the House to Her Excellency.

I point to Beauchesne's fifth edition at page 37, which outlines the role of Speaker as the representative of members of the House. It lays out the House's relationship to Her Excellency the Governor General. It is enunciated there that there are three times or methods when this occurs: first, upon your election as Speaker, you petition the Governor General for the continuance of the Commons' privileges; second, you personally deliver an engrossed Address in Reply to the Speech from the Throne to the Governor General; and third, and the most common example, you lead us when summoned by the Governor General to the other place.

If the House wishes to collectively communicate with Her Excellency, it can only be by address to Her Excellency. That is our constitutional design. That is the form of communication which the House might only engage in with Her Excellency.

I point out to you, Mr. Speaker, that in the same fifth edition of Beauchesne's at page 123, it lays out a form of address for when the House wishes to communicate with Her Excellency. It is a very rare occasion other than the reply in the address to the Speech from the Throne that the House wishes to address or communicate with Her Excellency the Governor General. History will show us that it is a very rare event indeed.

If we go back to the time of William IV in Great Britain just prior to Queen Victoria, there were events when the House of Commons wished to communicate with the king and it was done so by an address. It is a very particular form of communication. To my knowledge, it has never been carried out in this place in a form like that laid out in this motion.

Mr. Speaker, knowing that there is a particular constitutional demand upon how we speak to the Governor General, and knowing that this, if passed, would ask that you transmit this resolution to Her Excellency the Governor General, what is the transmission? Is it an email? Is it a phone call? Is it a courier delivering a resolution of the House? It is a rather peculiar way of doing business knowing that the Crown is the head and the font of power in this place.

Therefore, knowing that this transmission is not defined and knowing that this is an unknown way of communicating with the Crown as represented by Her Excellency the Governor General, I would submit that this is a resolution which is an impossibility from a constitutional point of view. It is also an impossibility from a plain language point of view because we do not know what a transmission is. Therefore, I would ask that you rule it out of order.

[Committees of the House, November 16th, 2005]

Mr. Speaker, I have the honour to present, in both officials languages, the sixth report of the Standing Committee on Transport.

In accordance with its order of reference of Thursday, October 27, your committee has considered votes 1a, 5a, 10a, 20a, 35a and 40a under Transport in the supplementary estimates (A), 2005-06, for the fiscal year ending March 31, 2006, and reports the same.

[Petitions, September 28th, 2005]

Mr. Speaker, I am pleased also to present a petition signed by a number of residents of Ontario. Similar to the last petition presented, it deals with the subject of autism and that autism is increasing in numbers in our child population.

Similarly, the petitioners call upon Parliament to amend the Canada Health Act and regulations to include IBI intensive behavioural intervention therapy as part of the necessary medical treatment.

[Extension of Sitting Period, June 23rd, 2005]

Mr. Speaker, I never in any way suggested it was undemocratic. In fact, it was Speaker Fraser who ruled on June 13, 1988, that this could be done. I would point out that when one starts waiving or changing the law, in what I regard as a capricious fashion, one has to be careful because the law of Parliament is embodied in the Standing Orders. This is not all of the law of Parliament but much of the law of Parliament.

Of course, this chamber has enormous powers. We could waive a day for impaired driving, so if someone is convicted on that, it is a free day. No one is going to suggest that is going to happen. When there are laws as embodied as the laws of Parliament called the Standing Orders and when we start playing with those or carving exceptions into those laws, where is it all ending?

I refer to the Debates of June 9, 1998, when it was the Conservatives who were doing that, but were in fact doing it in a way that in my view had a greater sense of urgency than what we are having now. There will always be a time, when we wrap up for the summer, that legislation will be left sitting until the fall that many or a few would regard as urgent. The case could then be made that we should just keep sitting.

The motion that is before the House which is to be voted on is an open-ended question for members here. Do members want to sit for 95 days or do they think it is right and proper to give to a House leader the right and authority to stretch proceedings out from Monday through Thursday midnight. That is why I referred to that quotation. That is legislating by exhaustion. That is not the right and proper way to debate, to deliberate, and for members to exercise their representative and deliberative powers. I must object to this way of doing business.

[Extension of Sitting Period, June 23rd, 2005]

Mr. Speaker, once again, my friend opposite is somehow tying Bill C-38, Bill C-43 and Bill C-48 together. This is a very simplistic view of the way this works. It is a very simplistic way and the notion of representation is more than just a notion, it is a constitutional obligation upon members of the House.

If one were to take the simplistic view of the member opposite that because someone is opposed to one thing, he or she is opposed to everything, I must ask him if that is indeed the case? How does he reconcile that there are a number of people in his caucus who are supporting the government on Bill C-38, but are opposing Bill C-43 and Bill C-48? How does he reconcile what he says is my inconsistency with the inconsistency which already exists in his caucus?

I find this a fascinating concept. He is saying that the position of his party is to oppose Bill C-38 and apparently that is true. But within their very own ranks, there are people who are supporting Bill C-38. Perhaps when the Conservatives resolve that issue within their own caucus, he could bring that question back again.

[Extension of Sitting Period, June 23rd, 2005]

Yes, Mr. Speaker.

[Extension of Sitting Period, June 23rd, 2005]

Mr. Speaker, the question is interesting, but I would point out to my friend opposite that I have been elected four times.

There seems to be some confusion as to what Bill C-38 actually is. Bill C-38 is not a confidence vote, and that is very clear. In opposing a motion which attacks the fundamentals of the Standing Orders, I fail to draw a line to the fiscal policy of the government. My colleague is putting forward an interesting connect the dots idea, but I am afraid I cannot connect the dots.

Conversely, one could ask him about those in his caucus who support the government on Bill C-38. What is happening within that caucus to do anything about that?

Again, I would point out that Bill C-38 is a contentious matter in the country, of that there can be no doubt. Bill C-38 is a matter on which there is no consensus in the House, of that there can be no doubt. In the end, the question I believe the member has asked is a total non sequitur because what has Bill C-38 got to do with Bill C-43, or indeed Bill C-48?

[Extension of Sitting Period, June 23rd, 2005]

Mr. Speaker, I am pleased to speak to Motion No. 17 under government business.

What we seem to be losing in all of this is that if this motion is passed it will suspend Standing Order 28(2) which lays out the parliamentary calendar. We have to remember that this was a process adopted in 1982 to give adequate time to allow for Commons business and to balance it off with members' ability to structure their constituency time and their personal lives. This Standing Order provides for certainty in the parliamentary calendar and was adopted by the House after two committees studied it and recommended such a rule.

Members will know that Standing Orders can be changed or suspended by a simple majority vote but before doing so we should ensure that the change is not imposed in a capricious or arbitrary fashion.

This proposed change to the Standing Orders, as put forward in this government motion, was last undertaken on June 13, 1988. At that time the then president of the Treasury Board, speaking for the then Conservative government, stated, at page 16379 of the House of Commons Debates dated June 13, 1988:

I think it fair to say that we especially appreciate that in following this course of action the Government must pay heed to the parliamentary calendar and not change same without having a very reasoned argument for doing so.

That was said in the course of the free trade debate and legislation in 1988 and it was very time sensitive that the House deal with it.

In this motion the government House leader recognizes that the motion before us is in no way a routine or simple motion. In fact, the first line of the motion itself states, “That, notwithstanding any Standing Order or usual practice...”. This is clear evidence that this is not some limited, ordinary or trivial procedural device. This motion calls into question the general principles of the transaction of public business in an orderly and controlled fashion.

What is being proposed in this motion, in the words of the then member for Windsor West, now the right hon. Herb Gray, is an attempt “to legislate by exhaustion”. Mr. Gray spoke out as a Liberal on June 9, 1988, at great length, in opposition to an identical motion to what we have before us. He noted, quoting again from page 16294 of the House of Commons Debates dated June 9, 1988:

This is certainly the wrong way to have proper debate and consideration in the House and the wrong way to have public input. I think the government hopes its legislation, to use the words of Bourinot, will slip through “on sudden impulse”, and surely that is wrong.

In that same debate on June 9, 1988, the comments of the then member for Winnipeg--Birds Hill, who, ironically, is still in the House as the member for Elmwood—Transcona, were reported on page 16502 of the House of Commons Debates as follows:

I feel obliged to get on my feet on behalf of the members of those two reform committees that I belonged to, on behalf of Members now, and on behalf of future Members of Parliament, to say that if we sacrifice this parliamentary calendar to the Government's political agenda-and that is all it is, it is not as if there is any great emergency....

Two lines later he stated:

--I want to make the larger claim that what is at stake is the health of the parliamentary institution itself.

This is no emergency. There is no compelling reason to override Standing Order 28(2). What is contemplated, if this motion were to pass, using the same logic applied by Mr. Gray in 1988, is a dictatorship by the majority.

Let me quote the member for Winnipeg--Birds Hill, now the member for Elmwood--Transcona, from page 16302 of the Commons Debates of June 9, 1988:

All of us here, and future Parliaments, will come to rue the day we throw out the parliamentary calendar. We had it there with a little window where we had some sanity in this place. Some members are trying to chuck that out of the window and everyone will pay as long as Parliament continues to exist for the fact that the government put its own political agenda before the health of this institution.

The ultimate irony and tragedy of this motion is that it has as one of its objectives to force non-stop, sometimes 14 hours, daily debate on inter alia Bill C-38, a bill which purports to protect and uphold minority rights.

Is it not a tragedy that to protect minority rights, it calls upon the majority of this House to disrespect, to waive, and to do away with the rules which govern the orderly conduct of the business of this House and this country?

That which the government says it deplores, being the alleged suppression of minority rights, by this device, this motion, urges the majority to waive the rules of business and parliamentary law in order that it might likewise suppress what it hopes and trusts will be a minority opposed to its capricious and craven disregard for parliamentary order.

It is the duty of every member of this House to uphold and protect the traditions, the conventions and the rules of this place, as embodied in the Standing Orders. That code has evolved and has been adopted to ensure that the fundamental law of Parliament is upheld.

One can imagine the outcry from the righteous in this chamber if, for example, a majority changed the Standing Orders on quorum to decrease it to three members in the House, or simply change the Standing Orders and do away with question period. All of these things are possible. We could do it by a vote of a majority on a motion in this House, a vote to change the Standing Orders to reflect these types of objectives.

Finally, I want to comment on the wording of the motion itself, which was described to me by a journalist recently as incomprehensible. It contains the word “deemed” twice. It says “--the said motion immediately shall be deemed to have been adopted--”. Later on it says “--the House shall be deemed to stand adjourned--”.

In legislative drafting, the word deemed is to be avoided. Black's Law Dictionary , seventh edition, 1999, defines deem on page 425:

1. to treat (something) as if (1) it were really something else, or (2) it has qualities that it does not have, “although the document was not in fact signed until April 21, it explicitly states that it must be deemed to have been signed on April 14”. Black's Law Dictionary continues its definition, saying:

“Deem” has been traditionally considered to be a useful word when it is necessary to establish a legal fiction either positively by “deeming” something to be what it is not or negatively by “deeming” something not to be what it is...All other uses of the word should be avoided.

Surely, having regard to the lack of urgency around all of these matters, and having regard to the abundance of legal drafters in this place, members should avoid setting such a dangerous precedent which, I would point out, was opposed and decried by the NDP and the Liberal Party in 1988.

It is a precedent which attacks the foundations of the Standing Orders which were laid out and have evolved to give order to the business of this place and which were founded on the basic premises of the law of Parliament. We are doing all of this under the guise of a legal fiction. This I would submit would be adequate reason to vote against the motion.

[Committees of the House, June 23rd, 2005]

Mr. Speaker, I have the honour to present, in both official languages, the fifth report of the Standing Committee on Transport.

[Main Estimates, 2005-06, June 14th, 2005]

Mr. Speaker, I will be voting yes to the motion.