Derek Lee

[Budget Implementation Act, 2009, February 27th, 2009]

Madam Speaker, I can confirm that most of us on this side read it. I can certainly confirm that my party knew what was in the budget before we decided to support it. The one overriding component of the budget and the budget bill that we support is the stimulus package.

Does the bill have its deficiencies? Yes,and I have already mentioned a couple of them. Are there things in the bill we might rather deal with in greater depth at a later time? Of course, but the government has chosen this route. I personally regretted the bundling of all these things in Bill C-10 but we firmly support the stimulus package. There is nothing else more important to Canadians at this time and that is why we are proceeding on this basis.

[Budget Implementation Act, 2009, February 27th, 2009]

Madam Speaker, we, in opposition, and I presume government members feel the same way, are all in favour of transparency. I wish Parliament could track every nickel the government spends both in the stimulus package and on everything, but the fact is that we cannot. We do not have enough time, it is just too much.

However, I do agree fully that it is possible in this case to have transparency with respect to each project: the amounts, the potential for overruns, under budget, over budget, accountability during and after, an eye on the process itself and who makes the decision. I would not want the process to materially slow down the spending of the money but I would want the process to scrutinize it sufficiently so that we get the best bang for our buck and that we avoid the kinds of mistakes the finance minister referred to.

[Budget Implementation Act, 2009, February 27th, 2009]

Madam Speaker, we are debating amendments to Bill C-10, the budget implementation bill. I want to discuss these amendments both in a general and a particular context. I will break my remarks into three parts.

First, in relation to the bill and these amendments which on the face of it attempt to make the bill better in the view of those proposing the amendments, as a matter of fact they probably would slow down the passage of the bill.

While I, too, have seen problems in the bill, the fact is the government very much wants to get the bill passed and I with the Liberal opposition very much want to get the stimulus package passed as well. When people pass legislation in haste, that sometimes gives rise to errors. We do make mistakes from time to time and in the view of many in the House, this bill has some mistakes.

If there is one single item that keeps the government alive, it is the stimulus package. Without the stimulus package, as I said before, the Conservative government would be what I referred to as a dead man walking. The government has twice in the last year come to the brink with the realization that the House is not working. The government does not have the support of the House.

We went to an election once, we came back. We had an economic statement and we were on the edge of another election. I do not see that a lot has changed except for that one thing: the stimulus package. The economy is in trouble and my party is determined to serve Canadians first and get the stimulus package passed, get the money out the door to stimulate the economy.

My party has insisted on report cards from the government on a periodic basis so that we can see what is happening, so that there will be some transparency from a parliamentary point of view and we can see some real things happening rather than just being announced into submission. The government is really good at making announcements. In my view it is less good at actually doing the deal, walking the walk. I refuse to be announced into submission.

I was surprised yesterday to see the government introduce an amendment to the Criminal Code that appeared on the face of it to provide protection to gang members that were being killed by other gang members.

The government is so desperate to be seen to be doing something, it will do anything. If the roof leaks, the government will want to pass a bill to fix the roof. The Conservatives just want to be seen to be doing things. They will announce a bill that prohibits roof leaks 100 times before they stop the roof leak.

My party and I are supporting the bill to make sure the stimulus package gets through as soon as we can get it there.

I had prepared some amendments. I drafted them, submitted them and then I withdrew the amendments. The amendments did not have to do with substantive measures from the budget point of view, but they did have to do with elements in the bill. As everyone knows, the bill, to the extent that it is an ambulance bringing economic first-aid and help to the country, it has a bit of contraband in the back of the ambulance. It has amendments to the Competition Act, the Navigable Waters Protection Act and a half dozen other statutes.

One of the things it does is the Department of Justice in drafting the bill has put in a phrase that these regulatory provisions, these regulatory empowerments in the bill, are not statutory instruments under the Statutory Instruments Act. While that does get rid of the problem of having to pre-publish and consult before the regulation and order of exemption has passed, what it does also is preclude Parliament from reviewing these things after they are put in place. That is a huge mistake and it runs contrary to everything I have seen Parliament do around here for the last 30 to 40 years.

My amendments were intended to correct that. I have discussed it with members around the House, and I think there may be an opportunity to propose amendments that will reverse the impact of these provisions in the stimulus package bill. There is a risk that if we do not do it here, the members in the other place may do it. I do not know what they will do. I hope they subscribe to the same ethic that we do and want to get this bill passed quickly.

On the issue of stimulus itself and the amendments here, I do know that in the current fiscal year, which will end on March 31, 2009, the government had 12 months to get out the infrastructure spending that was contained in last year's budget. There are hundreds and hundreds of millions of dollars in that budget. I have not read this with my own eyes, I have not actually followed the government accounts, but I am informed the government has only managed to get 5% or 10% of that money out the door. Even as it admits the economy needs the stimulus investment, it appears as though the government has been unable to get this money out and invested in infrastructure projects across the country. That is very strange.

Even as we look at the upcoming estimates and the stimulus package moneys referred to in Bill C-10, to be authorized by the House soon in the main estimates and supply votes I see there is a $3 billion chunk of money which has been placed at the disposal of Treasury Board. That is a departure from how the government normally spends money, because when it does it that way, we in Parliament do not actually get a chance to see it project by project in the supplementary estimates.

In this House, and I am quite sure this will happen, one or more of the committees will have to construct a protocol, a mechanism, a procedure which will meticulously review both the process and the decision making for this stimulus spending, the investment in infrastructure. That is going to happen. It may be uncomfortable for some ministers, but that is what the House is going to have to do because of the way this stimulus package money is put in the estimates and the way it has been proposed in Bill C-10.

I will close with two issues. I note that the Minister of Finance has said that in moving to get this money out quickly, there is always the possibility of a mistake. It would not be the government, but it would be governmental officials who would do the work, the calculations, check on these projects to ensure that they are good projects, and there might be a mistake. There could even be fraud. There is $3 billion sitting out there, and I am sure there is a crook out there somewhere who is going to try to get his hands on it.

I want to make sure that in the process of letting contracts, the government checks with its partners, the provincial governments and the municipal governments, for the presence of organized crime in the whole array of contractors out there. I want the government to check for crime and organized crime as this money is spent.

Last, I would only ask the question, if we are asking the auto workers to freeze their pay and benefits or take a cut, should we not be looking to organized labour in the construction industry to perhaps cap and freeze their wages and benefits during the currency of these investment projects? What is good enough for the auto workers should be good enough for the construction industry. I have asked the question, and the answers will be forthcoming in due course.

[Points of Order, February 25th, 2009]

Mr. Speaker, because Hansard is in black and white, I just wanted to point out that my colleague from St. Paul's is a blonde woman.

[Human Pathogens and Toxins Act, February 23rd, 2009]

Mr. Speaker, the standards that we should be according to the citizens with respect to powers like this are fairly well known to the Department of Justice. The problem is that as every new government moves in, it says to the Department of Justice to make those powers just a bit more robust. The line keeps being pushed. They keep pushing up and they refer to Supreme Court cases and Court of Appeal cases.

I think someone from the Department of Justice not associated with the creation of this bill should be a witness to outline the current standards of civil liberties vis-à-vis government powers. That would be a good standard.

Another example, in clause 71 of the bill, the word “knowingly” has been deleted. A citizen who is in possession of a toxin or pathogen, when the bill comes into force, has a problem unless he or she notifies the minister. It is an offence. That section should contain the word “knowingly”. Clause 6 of the bill contains the word “knowingly”. The citizen should have to know that he or she has the item before he or she is found criminally or quasi-criminally responsible for an offence.

I think the Department of Justice could give some very good answers.

[Human Pathogens and Toxins Act, February 23rd, 2009]

Mr. Speaker, we are debating Bill C-11 today, which is an act to promote safety and security with respect to human pathogens and toxins.

The schedules to the bill list these pathogens and toxins. It is really quite a who's who of all the biological bad guys out there and it is pretty scary for a layman to read. I had two esteemed colleagues from my Liberal Party up, who are both doctors and probably pretty comfortable with the words, but there is aflatoxin, anthrax, cholera, diphtheria and dozens of ugly sounding toxins and pathogens.

Any layperson who looks at that would say that we need this legislation, and it is a consensus in the House that we need this legislation. There was a bill in the prior Parliament that did not make it through as it was a short Parliament. My party supports the bill in principle and, if adopted by the House, hopefully it will go to committee.

However, I must point out some issues that I do have with the bill. One issue that I raised previously is an issue that I will raise again, and if nobody moves amendments to this bill, I probably will. The issue concerns the granting by this House of powers to the administration, not just to the government but to persons in the government. In this particular case, they are referred to in the bill as inspectors. It has to do with this whole concept of the House giving power in a statute to the government to make regulations and enforce provisions of the act that are regulatory, in addition to the statutory provisions.

In modern government, we all accept that we need to do that. The real trick is in how we do it, how Parliament does it and whether or not Parliament will scrutinize, review and oversee the regulatory work and the enforcement that happens after the powers are delegated.

It is okay for Parliament to pass a law that says a citizen shall not do X. That is not a delegation. That is a creation of an offence and authorities enforce those offences. However, when Parliament passes a law that gives the authority to a minister or the governor in council to make a regulation, to create some kind of a regulatory offence, that is a delegation. When we do that in Parliament we should take steps to ensure that the enforcement and execution of those powers happen within the law. Parliament has created a method for doing that.

I will address this bill through a lens of our civil liberties, our freedoms. I have always tried to do that as a member of Parliament and I will do it here. I am not doing it just to be critical of the bill. I am doing it to better assure the rights and freedoms of Canadians under this particular legislation.

Sections in the bill would give substantial regulatory powers to the minister and to inspectors. When we are dealing with these human pathogens and toxins, one could expect that we would do that. There is no way we would send the minister or a member of Parliament over to some illegal laboratory to pick up some anthrax. This is done through hard-working, honest and dedicated public servants who need the authority to do that hard work.

I now want to look at the legislation to see how we are asking them to do this. I would refer the House to subclause 41(1), which reads:

Subject to section 42, an inspector may, for the purpose of verifying compliance or preventing non-compliance with this Act...enter at any reasonable time any place or conveyance [such as a motor vehicle or a bus] in which the inspector believes on reasonable grounds that an activity to which this Act or the regulations apply is conducted...

Not just for the purpose of preventing a breech of the act but for the purpose of ensuring compliance, the inspector may enter any place, any reasonable time. We pretty much just give to an inspector the right to do something that not even a policeman could do without a warrant or specific statutory authorization. There had better be a real good reason for this, to give all this power to a particular individual.

We are dealing with some difficult chemicals here, some pathogens and toxins, but here are some of the things that inspectors could do. They can examine the place. They can require the person in the place to do things. They can seize and detain, open and examine, direct the owner or the person having possession, care or control, to do certain things, to move certain things. They can examine and make copies, require any person in the place to do the same, and the list goes on.

These are significant powers. We should keep in mind the basis on which the inspector enters the premises. It is for the purpose, low threshold only, of verifying compliance. That would mean on a bad day, “I think I will go check these guys because I feel like it”. It could be that. I am not saying that it would be, but what if that is the case? “I will go into this place to check it because I want to verify compliance. I do not like the way they park their cars in the parking lot”, or maybe, “I do not like the owner”. This is the power that the act now gives, not by regulation, but by statute, right up front, to an inspector.

Subclause 41(6) says, “No person shall knowingly obstruct or hinder...an inspector who is carrying out their functions”. No person shall obstruct or hinder. That sounds reasonable, but let me tell the House that there are occasions where, from time to time, this restriction on hindering is abused. I am not making it up because I represent constituents whom I think have been criminally assaulted by government officials in the Canada Border Service Agency.

My constituents, a family, father, wife, two teenage boys, 14 and 16, came back to Canada at Windsor. They had made some purchases in the U.S.A. and low-balled the amount of money, they underestimated the amount they spent, so they were invited to go to secondary for inspection. It was all pretty reasonable stuff. I have been sent to secondary for inspection. People there are a little bit officious, but they are just doing their job: “Stand up. Move over there. Do this. Do that. Do not talk”. Okay, they checked my car. I did not tell them I was an MP.

Anyway, this family came across. The inspectors in that case were border services officers, that is, immigration officials, food inspectors, customs officials, tax collectors. They ended up breaking the arm of my constituent. They broke his arm. They put both the teenage boys in handcuffs and dragged them into the office along with the wife. When all was settled, they charged my constituents with obstruction. These guys behaved like bikers. They beat up this family and then they charged them with obstruction. Here we have a section which authorizes that Canadians be charged with obstructing or hindering an inspector.

I happen to be a lawyer. I went to Windsor with these people to defend them in court against this charge of obstruction. It was wrong and the charges were dismissed.

Four people were summoned by Her Majesty to come to court that day, to tell the truth, and say what happened. One CBSA official showed up and did not rise in court when the case was called. Those individuals did not even appear to a summons. That was lawlessness. There is no appeal mechanism for that agency. There is an informal one in the minister's office, but there is no oversight.

These are tax collectors, food inspectors, immigration officers, who are running around arresting people, beating them up, but do not show up in court to prosecute a case, so the case was dismissed. It was kind of a happy ending after the man's arm was broken and he missed work. I did inform the minister about this and the minister said not much could be done. Maybe there should be a lawsuit. These are just regular people who do not have a lot of money to start lawsuits to get justice.

The obstruction charge is contained in Bill C-11 and I am very nervous about that.

Clause 42 also has provisions about entering a dwelling house. We crossed this bridge before in the House. Someone cannot go into a dwelling house without a warrant and the bill makes provision for that, happily.

I see a problem with subclause 42(3) which deals with the warrant and going into a dwelling house. It says that the inspector may not use force unless it is specifically authorized. The problem is that the use of force issue is too vague in the statute. It is not clear what extent of force is being referred to. If I have a warrant to enter a dwelling house, do I have the ability to turn the doorknob if that requires the use of force? Do I have the ability to break a window? Do I have the ability to lift the latch?

A warrant to enter a dwelling house, as I understand it now, allows the reasonable use of force. I have a question with respect to this. If an inspector shows up with a warrant and breaks down the door but the owner of the house does not know what is going on and tells the inspector he cannot come in, is that obstruction? Based on the case I described with the CBSA, I can bet my boots that is obstruction.

On the other hand, it might be a good day if the inspector is in a good mood and apologizes for breaking the window but explains that he has to check for pathogens and toxins. Maybe everything would work out.

I am looking at this from the perspective of a citizen. The wording about use of force in that section is, in my view, too vague. It has to be fixed in some way, otherwise there would be a legal issue and by the time the case was litigated and sorted out by the Supreme Court half a million dollars would be spent. I am suggesting that the committee to which the bill would be referred sort that out.

Clause 40 says that when the minister delegates these authorities he or she may restrict the powers of the inspector. That is the wrong way to put it. I think the inspector should only have those powers that the minister delegates to him or her. The minister should not have the whole raft of powers under the statute which he or she could then pull back under authorization because I do not think the minister would ever do it.

There are no criteria for the minister. There is no framework for the minister to act. There is no framework under which the minister could say, “I think I am only going to give you powers 1 to 5 and you do not get powers 6 to 10”. There would be an automatic predisposition on the part of the minister and the public service simply to give all of the powers to the inspector without restriction.

Why would anyone take the time to restrict the powers given to the inspector? Why handicap the inspector? The statute already gives the inspector powers. This is a mistake. The minister should decide which specific powers should be in the hands of the inspector. Then we know clearly what the inspector can and cannot do. The minister knows, government knows and Parliament knows. This way it is an open book.

Clause 40 is a problem and I hope the committee will deal with that. If the committee does not, I am going to do it here in the House. I am giving notice right now.

Last is regulatory activity. Canada has a fairly good regulatory process. It allows the delegation of authorities from Parliament to the government or ministers and sometimes to agencies. I will not read clauses 67 and 68 of the bill, but they provide for the delegation of regulatory powers.

In Canada's system now, normally a statutory instrument or regulation is pre-published before it is enacted, there is consultation, then it is adopted by the cabinet or the minister, it is published in the Canada Gazette, and then it is reviewed by the Standing Joint Committee for Scrutiny of Regulations in the House. It is reviewed for compliance with the law, the originating statute, the Charter of Rights and Freedoms, and the criteria adopted by the House. This way we make sure that regulations passed are legal and fair. That has worked fairly well for the last 30 or 40 years.

However, clause 68 of this bill exempts some of the statutory instruments and regulations from the Statutory Instruments Act. It takes it right out. It says these regulations are not statutory instruments. For the layman that may be kind of a foggy term and some may ask what it means.

In some cases in this bill it only means that the regulation is not pre-published and consulted, that it simply is made, and there may be good public policy reasons for doing that. In an emergency, three months cannot be taken to consult. Dealing with risks to human health, sometimes action has to be taken quickly. We do that and authorize regulations to be made without the need to pre-publish and study, et cetera. However, there are a couple of components that are worrying to me and should be to the House.

First, the bill specifically authorizes incorporation by reference. That means an adoption of a rule that somebody else made. Maybe it is a rule made by the European Union or Brazil or Japan or wherever. That is incorporation by reference. Not only that but it allows what is called ambulatory incorporation by reference, which means whenever Brazil changes its rule, our rule changes. We have to get a handle on that because that is a pure delegation of regulation-making by us to them.

Second is the exemption from the Statutory Instruments Act. We cannot do that. We must allow Parliament to continue reviewing it. We must specifically authorize Parliament to review these instruments under sections 19 and 19.1 of the Statutory Instruments Act. Those amendments should all be made to this bill.

[Budget Implementation Act, 2009, February 12th, 2009]

Mr. Speaker, the rationale for supporting the bill has been there. It is not a perfect bill, and probably members on the government side would agree. In fact, I have heard it said that the government does not look very neo-conservative with all the billions of dollars of deficit spending coming down the pipeline. In the end, I do not think Canadians would really forgive us if we did not get these measures passed quickly because of the stimulus contained in them.

[Budget Implementation Act, 2009, February 12th, 2009]

Mr. Speaker, I made the point that we did not want to stand in the way of the ambulance as we tried to get stimulus spending commenced. The hon. member has not referred to anything involving legislative smuggling or piggybacking, but he has focused on what appears to be omissions from the stimulus package, things that should be in the ambulance but are not. It is curious why things that were highlighted in the budget speech by the minister would not have been in the bill.

I suppose it is quite possible at some point, as all these initiatives were being developed, that somebody said that if it were not ready by 10 o'clock on a specific date in January, it would not go in the first bill. However, these items were prominently mentioned in the speech. I rather think that if I were a minister, if my friend from Mississauga South were a minister, we would have said that this stuff would be ready, that this was emergency legislation, that it would be ready by 10 o'clock and that it would be in the bill.

This is an omission. I do not think it has been adequately explained why it is not there. I understand the concept of another bill coming later, mañana, but Canadians are waiting for a response. The member makes an excellent point.

[Budget Implementation Act, 2009, February 12th, 2009]

Mr. Speaker, it just occurred to me listening to the previous remarks that God forbid we would have a surplus on March 31, what would Canadians think? With the extreme needs for stimulus spending in our economy and suddenly on March 31 we have a surplus, what will they think of the government then? I will just leave that unanswered.

In any event we are discussing Bill C-10, the budget implementation bill, and I wanted to direct the attention of the House to one particular aspect of it.

I will be supporting the bill, not because it is perfect but because it is part of the government's stimulus package. If there is one reason why the government is still the government in Canada, it is because Canadians want and anticipate a stimulus package to deal with the real problems in the economy, not just here but around the world.

If we look at the bill, we will see that it has a huge menu. It looks awfully like an omnibus bill as opposed to a stimulus package bill. I think the bill has about 15 parts. One part deals with the actual bulked up spending and there is about $6 billion outlined there. Therefore, in order to get this stimulus package out, my party is going to support the bill, warts and all, if I can describe it that way.

In this long menu, as has already been pointed out, there are a number of legislative provisions that do not appear to have very much to do with stimulus at all. I will just pick two: one is the Navigable Waters Protection Act and the other is the Competition Act. It is not immediately clear to many people, including members of the House, why these enactments have to be in this bill.

These are complicated pieces of legislation on their own and attempting to update them and modernize them in the context of a stimulus package bill would probably be seen as perverse by some and stupid by others. In any event, the government is either piggy-backing policy changes in this stimulus package or it is doing legislative smuggling by pushing through bills in the back of the ambulance.

I will use the ambulance analogy again if I may because this stimulus package bill is actually like an ambulance. I just hope the government is not trying to smuggle things, contraband and other pieces of legislation in the ambulance. I suggest that it may be doing that and there are many policy reasons why it should not.

I want to point out two areas but they have the very same theme. As the House knows this Parliament requires that delegated legislation, regulations passed under our existing laws, be reviewed by our Parliament, and that is done by a particular committee. What the committee reviews is all regulations and statutory instruments passed under the provisions of a law.

In these two laws, the Competition Act and the Navigable Waters Protection Act, there is an apparent exemption from the Statutory Instruments Act of the regulations passed under the provisions of a law. I just want to point out one. There are several of these in this bill and there has been no rationale shown or described by the government for exempting this regulation-making from the Statutory Instruments Act. I point out clause 326 of the bill referring to section 11.1 of the Navigable Waters Protection Act that states that the minister may amend an approval of a work and that he may pass an order or a regulation in relation to that. There is another section, section 13.2 that states in one of those orders that a regulation made in relation to a class of objects like bridges and construction is not a statutory instrument within the meaning of the Statutory Instruments Act.

This would mean that not only does the government avoid the regulatory process in making the enactment, which would mean pre-publication and pre-consultation, et cetera and which does involve a lot of time, there are policy reasons why the government might legitimately want to avoid that pre-enactment phase of consultation and publication, However, it also, because of the wording here, would preclude Parliament from reviewing the enactment to ensure that it was legal, made within the terms of the statute, complied with the charter, et cetera.

That is something the House should never accept. We should not pass legislation that exempts regulations from parliamentary review after it is made.

Recognizing there may well be circumstances where the full regulatory process should be pre-empted, such as in cases of an emergency where a bridge is under construction or a type of bridge is under construction and the minister feels the need to intervene and halt construction, we would not want to have to wait six months to do that.

Nevertheless, the exempting provision of the bill should be amended to say that it is exempt from the Statutory Instruments Act, except for the purposes of sections 19 and 19.1. Those are the sections under which Parliament reviews all regulations. Reviewing the regulation or the order after it is made would not interfere with the ability of the government to make the order or affect its validity, but it would ensure that there would be a review, that there would be a legality and that Parliament's function of reviewing these things would be pretty much comprehensive.

With respect to this legislation, and there are half a dozen cases in the bill, we would not also like the Department of Justice to get into the habit of inserting these exemptions all the time. In fact, it does not insert them all the time, but when it does insert an exemption from the process, there should be a rationale that is clear on the face of it.

In this case, I do not see the rationale and I am hopeful there will be an amendment made to the bill that will retain the parliamentary scrutiny of such regulations made under the statute.

[Committees of the House, February 11th, 2009]

Mr. Speaker, I have the honour to present, in both official languages, the first report of the Standing Committee on Government Operations and Estimates in relation to its study on supplementary estimates (B) for the fiscal year ending March 31, 2009. I am pleased to report that the committee considered all the votes referred to it and reports the same.