House of Commons photo

Crucial Fact

  • His favourite word was elections.

Last in Parliament October 2015, as NDP MP for Toronto—Danforth (Ontario)

Lost his last election, in 2015, with 40% of the vote.

Statements in the House

Enhancing Royal Canadian Mounted Police Accountability Act February 28th, 2013

Mr. Speaker, the only thing that I would mention is what was said by the former head of the CPC, Mr. Kennedy, which really stood out during the seven days of testimony. He talked about the context in which government bodies, including the historical pattern within the RCMP, invoke privilege—the idea that documents are privileged—as a way to shield from external agencies documents that had no reasonable basis to be excluded. He gave lots of examples.

The very idea that the minister can both set regulations on the scope of privilege and also have the RCMP commissioner, separate from the minister, actually decline to provide documents based on his or her own judgment of what is privileged in a way that would unduly affect the RCMP completely undercuts the independence of the body.

Enhancing Royal Canadian Mounted Police Accountability Act February 28th, 2013

Mr. Speaker, we are the party of co-operation.

I was simply add one further point, which is there is indeed something on which I would compliment the government. It did include the chair-initiated investigation procedure. However, it comes with a couple of conditions, one of which is that the commission, this new review body, cannot proceed on its own motion to investigate, quote, “if there is another review or inquiry that has been undertaken on substantially the same issue by a federal or provincial entity”. This may seem like a reasonable provision, but it opens the door for delay and challenges by the RCMP, including in court.

The judgment about whether it is germane to the commission to initiate its own investigations, frankly, should be with the commission. There should not be a mechanism whereby the RCMP can push back, including by using and drawing on government lawyers. There is a further provision that indicates that possibly the minister himself or herself could challenge. Therefore, the granting of a commission-initiated review or investigation is partly undercut by these conditions, and that was my only other point.

Enhancing Royal Canadian Mounted Police Accountability Act February 28th, 2013

Mr. Speaker, I completely accept the member's observation that just because we take different views, it does not mean that one side is automatically right or wrong. I was simply responding to the rather strongly worded criticism coming from the parliamentary secretary.

I also pointed out the context in which amendments had to be drafted in this context: three and a half hours after the end of the majority of opposition witnesses were there.

I also noted that it was the practice of the Conservative government, working through government members on committees, to accept virtually no amendments across all committees. If the member has evidence to refute that claim, I would absolutely love to see it.

Enhancing Royal Canadian Mounted Police Accountability Act February 28th, 2013

Mr. Speaker, I would actually like to begin where I was going to conclude with my speech, after hearing the, frankly, rather arrogant question coming from the parliamentary secretary.

We all know what the government does in committee time after time after time. Any amendment, however well framed, is voted down by the majority. There is almost a zero per cent passage rate of NDP, Liberal or independent members' amendments in committee in this Parliament, so to pretend that the fact of the writing of a few amendments by the opposition in this process would have made an iota of difference is the height of arrogance.

I would also like the House to know that in this context, most of the opposition witnesses were in the last two days, the majority on the last day. The majority on the committee voted to make sure that the amendments from the opposition came in three and a half hours after the session. Can we imagine, in the context of a complex bill like this, putting together well-crafted amendments when put up against an artificial deadline like that? This is the behaviour of the government in that committee. Committees do not function in any kind of straightforward or good-faith legislative manner.

I would like to address how far Bill C-42 diverges from and does not respect the recommendations from Justice O'Connor and the Arar commission for a proper review mechanism for the RCMP. Most of the other interventions have talked about other areas of the bill and other issues, but I would like to talk about how the bill does take a small step in the direction of the Arar commission recommendations, but ultimately stops far short. This is consistent with how the government has truly resisted appropriate oversight mechanisms for any body that deals with policing or security matters.

For example, in another bill that is before the House now, Bill S-7, Combating Terrorism Act, Conservatives have stoutly resisted any form of serious oversight or monitoring. In my speech on that bill, I will go into some detail on that. In each case, the NDP has proposed more than a dozen carefully considered amendments that would help make good on the Arar commission's exhaustive second report on a review mechanism, yet every one was voted down or ruled out of order.

This is consistent with the general approach of the government to the Arar commission. I had the fortune to be in the Standing Committee on Public Safety and National Security when the Minister of Public Safety appeared to defend the report called “Building Resilience against Terrorism”, and I asked him what the government's intention is with respect to the recommendations on a review mechanism coming out of the Arar commission report. It was absolutely clear from his response that the government has no interest in that report or using it as any kind of a reference point, baseline or road map. Bill C-42 has made that completely clear.

I will proceed as follows. I will provide a short overview of what the Arar commission did recommend by way of review mechanisms, and then I will look at how Bill C-42 on at least four points does not take those recommendations at all seriously.

The report I am referring to from the Arar commission is called “A New Review Mechanism for the RCMP's National Security Activities”. Before proposing the exact mechanisms, Justice O'Connor, who is of the Ontario court of appeal, outlined reasons for the inadequacy of existing accountability and review mechanisms for the RCMP's national security activity. In general, he pointed out that there has been an evolution and a deepening of the RCMP national security role, despite the fact that CSIS itself was peeled off from the RCMP at some point. Obviously in the post-2001 climate, we know that to be true and why that is true. He emphasized three elements.

First of all, there has been enhanced and deepened information-sharing with other countries and among federal, provincial and municipal agencies, and increased integration and national security policing. We know that information-sharing was at the heart of what happened to Mr. Arar.

Second, he talked about comparative and other Canadian experience with both policing and security intelligence review that led him to conclude that there was the “inability of a complaint-based approach to provide a firm foundation for ensuring that the often secret national security activities respect the law and rights and freedoms”.

Third, he said that the existing Commission for Public Complaints Against the RCMP has encountered “difficulties in obtaining access to information from the RCMP”. We will see that this is the understatement of the century when we look at some of the testimony.

For the information of the parliamentary secretary, I did read the blues and I did consider the testimony of various witnesses, including Mr. Kennedy, the former head of the CPC, whose testimony is irrefutable. The government did everything it could in committee to try to underplay and deflect the impact of that testimony.

Justice O'Connor recommended a number of features that the new review mechanism would have.

First, it must be authorized to conduct self-initiated reviews in the same way and to the same extent as SIRC, the Security Intelligence Review Committee that oversees CSIS. He talked about the need for these reviews not just at the time when activities were deepening, but in the context in which national security activities by definition were conducted in secret and received little by way of judicial scrutiny or other independent scrutiny. He emphasized how a self-initiated review had to be linked to the criterion of independence from the RCMP and the government in the right of access to information and to initiate those reviews.

The second feature that he felt would be important was that the body had to have investigative powers similar to those that public bodies had under the Inquiries Act. He emphasized a few things. Some of them are in the bill, such as the right to subpoena documents and compel testimony. Also, the review body has to have the right to decide what information is necessary and not have barriers put in front of it in making that decision or accessing the information.

Third, he stated:

—the review mechanism must not be hampered by jurisdictional boundaries. It must be able to follow the trail wherever it leads, to ensure full and effective investigation or review of the RCMP's national security activities.

With those principles in mind he went on to recommend a new independent complaints and national security review agency for the RCMP that would replace the CPC and would also take on the role he recommended for overseeing the Canadian Border Services Agency, the CBSA.

He went on to talk about the need for coordination across the various bodies, this new body he recommended, the existing SIRC, Security Intelligence Review Committee, and the commissioner for the CSE, the Commissioner for the Canadian Security Establishment, who also has broader and wider powers than what is found recommended in Bill C-42.

What is in Bill C-42 that falls far short of these recommendations?

The first major problem is that Bill C-42 does not give the new review body uninhibited access to information that the body deems necessary and relevant. In committee the Conservatives tried to avoid acknowledging that the bill would give the power to the RCMP commissioner to prevent examination and review of a broad range of privileged information. From lots of experience, we know how various bodies, including the RCMP, have abused the claim of privilege.

Mr. Kennedy, the former head of the CPC, noted in testimony before the committee, the findings of former Supreme Court Judge John Major in the Air India inquiry, who experienced first-hand the abuse of privilege by the RCMP.

Mr. Kennedy stated:

—with reference to the privilege. Justice Major, whom I talked to, was scathing in terms of his comments that the RCMP over-claimed privilege, concealed information from him, and in some case a witness who wanted to testify, they claimed they needed the information for investigative purposes which wasn't true.

The second major problem is that the RCMP commissioner can force the chair of the new recommended body, the CRCC, to suspend an investigation by means of a simple request in a letter on the grounds that it would compromise an ongoing investigation. Mr. Kennedy commented how this completely gutted the credibility of this body in the eyes of the public. It completely undermines any sense of independence of the body.

The third major problem is that the bill is largely void of timeframes within which the RCMP must respond to requests and findings of this new review body. As Mr. Kennedy said:

Inordinate and unjustifiable delay was the hallmark of the RCMP during the four-plus years that I was chair of the Commission for Public Complaints...

There was one fourth major problem, but perhaps a question will elicit that.

Technical Tax Amendments Act, 2012 February 27th, 2013

Mr. Speaker, I understand that there are still 200 technical amendments that have not yet found their way into this very long piece of legislation. I am wondering if my colleague thinks it would be appropriate at committee stage to move an amendment saying that those 200 other amendments must come forward, at least, on an annual basis and/or that some kind of sunset provision for the outstanding technical amendments should be implemented. Is there any way that we can hurry up the process of the government getting to the remaining 200 technical amendments?

Business of Supply February 26th, 2013

Mr. Speaker, I would like to ask my colleague from St. John's South—Mount Pearl this. Does he see any kind of opportunity for a green, sustainable economy that piggybacks on the emphasis on healthy communities and economic infrastructure?

Could it be that while focusing on infrastructure we also have an opportunity in front of us, where crumbling inadequate systems have to be replaced; in a country where we are in the dark ages when it comes to railway; where energy grids need to be upgraded but we have to do it in a green way; an opportunity for green procurement where we kickstart technology, construction and technology sectors all at the same time? Is there a huge opportunity here as well as a need?

Incorporation by Reference in Regulations Act February 13th, 2013

Mr. Speaker, those are very good points. The analogy to what happened with the budget bill, especially Bill C-38, with 70-odd pieces of legislation incorporated into a much broader bill, what we called an omnibus bill at the time, is part of the same fabric, the same problem, which is a lack of concern for parliamentary scrutiny. It may happen because Parliament cannot hope to actually look at everything that went on in Bill C-38 in any way resembling a responsible fashion because it was all being piled in within a short timeframe and the wrong committees are looking at it in a highly dubious process. It also may be because we are incorporating by reference materials and the joint committee has a hard time figuring out how they fit exactly into the picture and whether they are appropriate. However, we are looking at something resembling the same issue.

I will end by saying that incorporation by reference, generally, really needs better rules and regulations about it than simply dealing with the problem of open incorporation by reference, for the same reasons given by my colleague.

Incorporation by Reference in Regulations Act February 13th, 2013

Mr. Speaker, I was not aware that when we voted on Bill C-38 that there was yet another problematic feature.

There is something in Bill S-12 that adds to that problem. There is a prohibition on incorporating by reference regulation materials from a minister who is making the regulations, or by any department or agency that he oversees. There is absolutely no prohibition on one minister turning to materials or documents from elsewhere in the government, another department or agency he or she has nothing to do with, and incorporating that by reference, even if those materials have not gone through the regulation process. That is quite a back door and it appears in this statute.

To add to what the member for Saanich—Gulf Islands has said, we really have to begin to understand how we are becoming hollowed out as a democracy when the executive is given that kind of authority.

Incorporation by Reference in Regulations Act February 13th, 2013

Mr. Speaker, I thank my colleague from Hamilton Mountain for such an amazing introduction. I will be able to build on that, I hope, and actually dispense with parts of my own speech.

The Conservatives would have us believe that Bill S-12 is a merely technical or housekeeping bill. They accomplish this in part by messaging that it simplify codifies an existing drafting practice for regulations, the use of incorporation by reference. We even have journalists now treating this as a routine bill. I do not know if there are any journalists watching this debate for that very reason.

In fact, Bill S-12 is anything but innocuous. Speaking in my capacity not only as the member for Toronto—Danforth but also as official opposition critic for democratic reform, it seems to me that the bill is actually an anti-democratic “reform”, so called. It is a big step backward for open government and indeed for accountable government.

Let me be clear that my focus and remarks are on the endorsement in the bill of a so-called drafting technique known as incorporation by reference, in particular open incorporation by reference, whereby the words “as it is amended from time to time” would be inserted to signal that a document that is incorporated by reference or other materials, when it is changed by external bodies, would automatically enter back into the regulation and continue as binding law without any further intervention by Parliament. This would be in contrast to static or closed incorporation by reference, whereby Parliament and the Standing Joint Committee for the Scrutiny of Regulations would actually know what document is being incorporated by reference, would be able to review whether it is appropriate that the document comes in and would know when it passes judgment on the regulations of what it is dealing with.

For some years, the Standing Joint Committee for the Scrutiny of Regulations has expressed concern about the use of open incorporation by reference for reasons that I will discuss a bit later. In 2000, the joint committee called for a legislative amendment to the Statutory Instruments Act to require, as part of its provisions that authorize regulations, that any use of open or ambulatory incorporation by reference be explicitly authorized by each statute as that statute is adopted by Parliament. Without such explicit authority being in each statute, the report says that regulations would not be allowed to use this technique of open incorporation by reference, and would only be allowed to use the technique of closed incorporation by reference at a known date.

Bill S-12 would give carte blanche to the executive branch to use incorporation by reference of an open sort with no constraints of any consequence. This means regulations could change over time when external bodies decide to revise their documents, which have been incorporated by reference, and Parliament would have no further oversight role. These external changes would become law automatically with no further action required from the Canadian state or from Parliament, other than, in Bill S-12, a very vague, unelaborated, undefined duty to ensure the document with its amendments would be “accessible”.

Therefore, any number of changes by non-governmental organizations, industry bodies, international bodies or even foreign governments, to their own documents that have been incorporated by reference, could slip into our system with no scrutiny. For example, there is something known as Parliament's “power of disallowance” of regulations. A regulatory provision can be disallowed on a motion of the House, but that process is not triggered until the Standing Joint Committee for the Scrutiny of Regulations actually makes a recommendation to the House and to the Senate to disallow the regulation. They would not even have a chance to make such a recommendation with respect to amendments to documents that have occurred on the initiative of an external body and that are entered into our law automatically. This would never come back to the joint committee.

The very description of what would be at stake with Bill S-12 should reveal to the average listener the threats that would be presented by ambulatory or open incorporation by reference to democratic accountability, as well as to the rule of law. This is due to the fact that after the bill passes, if it passes, the executive branch may not only incorporate known documents produced by external bodies, such as this code, that resolution, those guidelines, these rules, but may also effectively yield to that external body the power to change its document in a way that automatically would become legally binding in Canada.

We live in a regulatory era where there are 3,000 regulations making up over 30,000 pages versus about 350 statutes making up 13,000 pages. Without careful scrutiny by Parliament of executive power, our democracy hollows out. We have been witnessing what some scholars call “new political governance” whereby concentrated executive power comes to dominate the parliamentary branch. In Canada, the Prime Minister, the PMO and a small clutch of ministers have effectively engineered a takeover of our Westminster system in recent years.

To add to that phenomenon, greater and greater power in the executive to incorporate by reference materials produced by bodies with no accountability to Parliament, let alone the Canadian public, in the name of economic efficiency or easing the burdens of regulators or flexibility, is something we must be seriously worried about. It makes the problem of executive domination of Parliament even worse.

Before I talk a bit more about why democracy and the rule of law are affected by Bill S-12, let me comment on one other problematic feature of the current process whereby Bill S-12 has come to us. I am not referring to the fact that it started in the Senate; let us leave that to one side. Rather, I am talking about how the government wanders into the House and has the chutzpah, frankly, to claim that Bill S-12 comes from the Senate unamended, as if it were truly a routine bill about regulatory drafting techniques that the Senate unanimously adopted.

In fact, the legislation caused great debate in the Senate. Senators returned to the debates in the mid-2000s, which ended up producing that 2007 joint committee report that I referred to. They objected to how Bill S-12 does not take seriously problems of transparency and accountability, and more broadly, the fundamental principle of the executive branch's subordination to Parliament.

Reasonable amendments were moved, but what happened? The current character of the Senate revealed itself in all of its glory, when Conservative senators voted to defeat every single amendment. This body was created in 1867 for two reasons: to be a regional voice in the federal Parliament and a chamber of sober second thought. It has simply become an extension of whipped party politics. The rational arguments of some senators on Bill S-12 were simply bulldozed by Conservative senators acting according to PMO instruction.

The government did respond to that 2007 report that I mentioned. It focused on one very technical argument that the joint committee had made, that allowing the executive to send on to another body the power to change something that had been incorporated by reference and have that become automatically a part of our law, which is called illicit or illegitimate sub-delegation.

The government focused on this and it made a whole bunch of comparisons to something known as inter-delegation, parliament delegating powers to the provinces to legislate. It created this equivalence between that situation and the situation we face, talking about how it was not a problem, that the provinces could be allowed to continue to amend their legislation or their rules and have a federal statute incorporate that by reference even as those rules change. However, the government failed to notice two fundamentally different features about that situation. First, the provinces are governed democratically, and second, they are within Canada. The fact of deferring to external rules by international actors who have no democratic process as part of how they produce their rules is totally glossed over by the way the government responded to the committee's report.

The government also ignored a serious rule of law concern. What happens when a document is amended by an external body in a way that maybe we cannot expect, in a way that is maybe radical, in a way that actually is problematic? Our Standing Joint Committee for the Scrutiny of Regulations has no opportunity to check whether or not those new changes fall within the ambit of the act. That is a rule of law problem right there.

How about a mega rule of law problem? The charter of rights is totally ousted by the ambulatory incorporation by reference process. Section 4.1 of the Department of Justice Act requires that Parliament double-check, after the executive has double-checked, that a regulation does not offend the charter. That does not get done with new amendments to incorporated by reference regulations.

Electoral Boundaries February 12th, 2013

Mr. Speaker, the Conservatives seem to forget that their own deputy House leader made clear these calls were deceptive and unethical, but the Prime Minister is enthusiastically defending this manipulative campaign. Basically, the Prime Minister would have us believe that this is democracy in action, democracy in an upside-down world, maybe. The Conservatives do not seem to understand that these tactics were offensive to the people of Saskatchewan.

What is the government doing to prevent the incursion of such robo hooliganism into other non-partisan commissions?