John Cummins

[Privilege, October 3rd, 2005]

Mr. Speaker, this might further clarify the responses. If there is permission, I would also table the letter to the hon. minister responsible for CMHC and to the hon. minister responsible for the National Research Council which triggered the responses referenced in both the government's matter and in mine.

[Privilege, October 3rd, 2005]

Mr. Speaker, I appreciate your patience on this issue.

On Thursday, the parliamentary secretary to the government House leader offered comments on the matter of privilege that I placed before the Chair on September 28. He claimed that the government was duty bound not to reply to my questions.

The government, in its response, claimed it was unable to answer because there was a civil suit against CMHC in the B.C. courts and another where the NRC might be named as a third party.

The parliamentary secretary noted that the Minister of Labour and Housing had referenced a civil suit in a letter to me earlier this year.

I will quote briefly from the words of the parliamentary secretary. He said:

The letter provided background information on the matter of interest to the member. However, given that the matter was at that time before the Supreme Court of British Columbia, the minister explained that it would not be appropriate for him to comment on the particular case.

The government has also declined to provide the material requested by the member because this, itself, would interfere with the court's proceedings.

It is clear that this was not an attempt to interfere with the member's parliamentary work but was done in order to protect the integrity and the work of the B.C. Supreme Court.

The government then tabled a copy of the letter from the Minister of Labour to me related to my request for information on when the government became aware of the leaky condo disaster and what action it took when it became aware of the wet and rotting buildings.

In this letter, the Minister of Labour states:

I am advised by officials at CMHC that all the documents you referred to are a part of or have been produced in the course of an action filed in the British Columbia Supreme Court against CMHC and, as such, go to issues before the court. Given the circumstances, and as I am sure you appreciate, it would not be appropriate for me to comment.

The government did not table a similar letter to me, dated September 2, from the Minister of Industry in which he states:

I have been advised by the NRC that it would be inappropriate for me, as Minister of Industry, to respond to your question at this time in light of the discussions and actions presently taking place on this issue before the courts of British Columbia.

I will later provide you, Mr. Speaker, a copy of that letter.

However, in both letters, the government is claiming that the issue of leaky condos is before the courts in British Columbia and, therefore, it is prevented from answering questions.

In its response to Question No. 151, which is the matter under consideration, the Minister of Industry, answering as minister responsible for the National Research Council, states, in part:

A Third Party Notice has been served on the Attorney General of Canada in the matter of the Owners, Strata Plan VIS 3861 v. Boso Ventures Inc. et al. The National Research Council is unable to answer the questions of [the member for Delta—Richmond East] as the matters raised by these questions are presently an issue before the courts in British Columbia.

In another part of the response to Question No. 151, the Minister of Labour, answering as minister responsible for CMHC, states, “CMHC is a defendant in the matter of Dan Healy v. CMHC et al”.

Both these cases are civil matters. To the best of my knowledge, both are at a very preliminary stage. Neither matter has gone to trial. They may well never go to trial. Yet the government refuses to respond to my question in the House of Commons, claiming that it is unable to answer because the matter is before the courts.

The claim that a matter is before the courts and ought not to be referred to in a question or answer in Parliament is not new. A special parliamentary committee, chaired by Speaker Jerome, studied this matter and made a number of important conclusions which are very pertinent to the claim by the parliamentary secretary that the government is not obliged to answer when there is a suit before the courts.

I am referring to the 1977 report of the Special Committee on Rights and Immunities of Members that provides great insight into the appropriateness of the parliamentary secretary's statement in the House on Thursday.

As a noted expert in procedural matters, Mr. Speaker, you are no doubt familiar with this report. I am not an expert on such matters. However, I have had the good fortune to be able to receive the advice of John Holtby, also an expert on the workings of Parliament, who brought this report to my attention.

The Committee on Rights and Immunities of Members was a remarkable committee, containing a number of truly great parliamentarians: Jed Baldwin, who was to become the father of access to information; John Reid, the current access to information commissioner; and Herb Gray and Stanley Knowles. Both Herb Gray and Stanley were deans of this House, men who are still remembered with great respect and affection. It was indeed a stellar committee, composed of unusually talented members of all sides of this House.

In its report, the committee was concerned about the limitation of debate on matters before the courts. At paragraph 12 in the report reference is made to a statement in the House by the former member for Central Nova, the father of the current member for Central Nova. That member's freedom of speech should not be interfered with lightly. He states:

A Member of Parliament, I submit, has a right and duty to pursue investigations and ask questions on behalf of his constituents and the general public, and any interference or obstructions in this respect must be taken very carefully and supported by citations and precedents of the greatest weight and substance.

The former member for Central Nova was concerned that he not be prevented from questioning the government on a matter where a civil proceeding had begun. This is not unlike the matter before the House, except it is the parliamentary secretary and the ministers who are seeking to shield themselves from answering a question in the House when there is a civil suit against the government.

I hope you will find, Mr. Speaker, that the convention on limiting questions on a matter before the courts, if it exists, applies equally to both the questions posed by members and the responses given by ministers.

The Chair's response to the former member for Central Nova is, therefore, very pertinent here. I draw everyone's attention to paragraph 13, which states:

The next day the Chair ruled that...the convention did not apply in civil cases until the matter had reached the trial stage:

It is clear...[that] no restriction ought to exist on the right of any member to put questions respecting any matter before the courts particularly those relating to a civil matter and until that matter is at least at trial.

After careful consideration of the practice in this House, the United Kingdom and in Australia, the Jerome committee rejected most of the situations where a claim that a matter ought not be asked or responded to because there was a similar matter before the courts.

At paragraph 22, the committee states:

It is the view of your committee the justification for the convention has not been established beyond all doubt, although it would not go so far as to recommend that it be totally abolished. Your committee believes, however, that any modification of the practice should be in the direction of greater flexibility rather than stricter application....It follows that the House should not be unduly fettered by a convention, the basis of which is uncertain. On no account should the convention...come to be regarded as a fixed and binding rule. It is not unreasonable, for example, that Parliament should be more limited in its debates concerning judicial proceedings than in the press in reporting such proceedings.

In paragraph 23 the committee further addressed the limited application of the convention. In particular it cautioned ministers about their responses when they might be inclined to claim that they were unable to answer because the matter was before the courts. It states:

Additionally, a Member who calls for the suppression of discussion of a matter on the grounds of sub judice should be obliged to demonstrate to the satisfaction of the Chair that he has reasonable grounds for fearing that prejudice might result. Should a question to a minister touch upon a matter sub judice, it is likely that the minister involved will have more information concerning the matter than the Speaker. The minister might be better able to judge whether answering the question might cause prejudice. In such a situation the minister could refuse to answer the question on these grounds, bearing in mind that refusal to answer a question is his prerogative in any event.

The government's response to Question No. 151 attempts to hide behind the sub judice convention, yet the cases referenced by the labour and housing minister and the industry minister are civil have not gone to trial and may never go to trial. The minister has offered no valid justification for failing to answer the question based on this convention and I would ask you to so rule, Mr. Speaker.

Indeed, it is clear in both the letters of the Minister of Labour and Housing and the Minister of Industry that neither minister has sought a justification for the departmental refusal to respond to a parliamentary question related to a civil case not yet gone to trial.

By asking the question, I am not interfering in any civil trial. I am trying to determine if the Government of Canada has acted properly, competently and fairly regarding leaky condos in British Columbia.

The government has adopted the position, a position that the Jerome report noted had troubled Speaker Lamoureux and was specifically rejected by him, that the filing of a writ by anyone in any court anywhere in Canada can be used as a reason to deny information to Parliament.

The House has never recognized such a convention whereby ministers should routinely shield themselves from questions by a claim that the matter might tangentially relate to matters in a civil case that is not yet at trial.

Speaker Jerome in his 1977 report to this House on the rights and immunities of members, while noting that ministers could not be compelled to answer a question, concluded that neither a member's question nor a minister's answer ought to be limited merely because of civil action that has not reached the trial stage.

Indeed, if the government is a party to a civil action it is obliged by law to disclose all it knows in that matter. While the government is not compelled to answer questions in this place, it is not permissible for ministers to claim the reason for not answering is that the government is merely a party in a civil action that is not now at trial, nor may ever reach that stage.

If ministers do not wish to answer they ought to say so, but they ought not claim that they are unable to answer, as the Minister of Industry and the Minister of Labour have done. They are able to answer, but have chosen not to.

The government has chosen to treat the House with contempt. It is hiding behind a civil case not yet gone to trial and may well never go to trial. One of these cases referenced by the government as the reason it was unable to answer my question started in the B.C. courts in 2001 and may not go to trial for several years. Following the government's logic, ministers have been unable to answer questions such as I have put for the past four years. That is nonsense.

There is no convention of this House that prevents a minister from responding to a general question while the government is party to a civil suit prior to the actual trial. The parliamentary secretary and ministers are purporting to use a non-existent convention to shield themselves from answering a simple question. The ministers are treating the House with contempt.

In conclusion, if there is consent, I would table the letter from the hon. Minister of Industry that was referenced in my comments.

[Privilege, September 28th, 2005]

Mr. Speaker, I rise today on a question of privilege in regard to a very grave matter relating to information that I requested through a written question in Parliament, placed on the Order Paper as Question No. 151.

On May 17, I used the Order Paper to ask what actions CMHC and the National Research Council had taken with regard to devastating building failures in British Columbia once they had learned of the problem. Part (a) simply asked: “Did Canada Mortgage and Housing Corporation management consider this wet wall syndrome in 1981, and if so, what action was taken?”

All 20 or so parts of the question go in a similar vein. This is hardly scary stuff.

This detailed question is about a B.C. problem of massive proportions involving tens of thousands of homeowners, one that the premier of British Columbia, now the member for Vancouver South, in 2001 described as a west coast disaster when he asked the Prime Minister for immediate assistance for affected homeowners.

On Monday the ministers for CMHC and the National Research Council replied that they were unable to respond to my question as the matters raised are before the courts of British Columbia.

I am aware that Speakers normally do not get involved in the quality of answers to written questions, however, on December 16, 1980, at page 5797 of Hansard , the Speaker ruled:

While it is correct to say that the government is not required by our rules to answer written or oral questions, it would be bold to suggest that no circumstances could ever exist for a prima facie question of privilege to be made where there was a deliberate attempt to deny answers to an hon. member.

This ruling would be in keeping with Erskine May's definition of contempt, described as:

--any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results may be treated as contempt even though there is no precedent for the offence.

The privilege of Parliament is founded on the necessity for the due execution of its powers. Necessity is the basis for any claim that an event was part of a proceeding in Parliament. As you are aware, Mr. Speaker, procedural authorities support the claim that a proceeding in Parliament covers both the asking of a question and the written notice of a question through the Order Paper.

I have thousands of constituents who have invested their life savings in homes that now require major repairs.

My question to the government was based on documents that CMHC provided under the Access to Information Act. The documents were prepared in the early eighties when CMHC became aware of the looming disaster but were not prepared as part of any possible court action today.

My question to the CMHC and NRC ministers was based upon the government's own documents. These documents may explain why the government now wants to avoid answering and why it pretends it is unable to answer. The CMHC documents state:

A link, real or imagined, may be made between government programs to encourage energy conservation and moisture related problems.... This linking may focus critical attention on the Corporation and could lead to a perception of responsibility.

There is potential for a drain on the Mortgage Insurance Fund as homeowners find the cost of repairs to deteriorating houses approaching the value of their equity.

Being aware of the problem, CMHC could be delinquent in not bringing appropriate aspects of it to the attention of others. The Department of Energy, Mines & Resources are promoting...programs [that] could lead to the promotion of structural deterioration. Enforcement of the provisions of the National Energy Program...could promote a further spread of the problem....

My question to you today, Mr. Speaker, relates to my work as a member of Parliament for Delta--Richmond East. The government is withholding information necessary to my parliamentary duties. The government is attempting to hide the failures of CMHC and NRC by claiming the issue is before the courts. The government is misleading the House when it claims that telling the truth about the actions of CMHC in 1981 would undermine its case in court.

That the Minister of Industry, the minister responsible for the NRC, claims that he is unable to answer the question is outrageous nonsense and is clearly an attempt to stonewall.

Members of Parliament deserve better. The House deserves the truth. It has been misled.

As members of Parliament, it is our duty to scrutinize the government and to hold it to account. It is our duty to ask questions. A written question on the Order Paper is one of those tools we as members use to seek information from the government. A written question on the Order Paper is part of our rules and is considered a proceeding of Parliament commanding respect from ministers and necessitating protection by the House.

Mr. Speaker, I ask that you allow me to move the appropriate motion to secure that protection and bring swift resolution to this matter.

[Chuck Cadman, September 28th, 2005]

Mr. Speaker, it is an honour for me today to rise to say a few words about our friend, Chuck Cadman.

Chuck was an ordinary guy who was born in Kitchener, Ontario, but grew up in North Bay. His dad was a stationary engineer. His mom emigrated from Holland in 1946 to marry his dad, whom she had met during the war.

After high school, Chuck spent a year or so making his living as a guitar player before heading west and ending up in Vancouver. There, in 1968, he met his wife, Dona. They were married in Clinton, Ontario, in August 1969 and returned to live in Vancouver in 1971. Daughter Jodi was born in 1973 and son Jesse in March 1976.

There is nothing special here: an ordinary guy from Ontario travels west to Vancouver, meets a girl, falls in love, marries and raises a couple of kids. I can relate to all of that, right down to being born in Ontario, having a wife in Vancouver and a father who was a stationary engineer, but on October 18, 1992, Chuck's, Dona's and Jodi's world fell apart. Sixteen year old Jesse was stabbed to death in a random attack.

The ultimate tragedy, the violent death of a child, has destroyed families, but not the Cadmans'. Through their sorrow, they reached out to help others devastated by similar hurts. They created the group called CRY, Crime, Responsibility and Youth, and worked tirelessly and selflessly to help those in need.

I did not know Dona and Chuck and Jodi at the time of Jesse's death, but I saw the news item on TV, heard the outrage on radio talk shows and read about it in the paper. Some months later, I invited Chuck to speak to a breakfast meeting put on by my constituency association, the first public meeting he spoke at after Jesse's death.

The impact of his words was profound. Here was a guy who spoke from the heart about the worst pain a parent can endure and he did it without bitterness and without the meanness of revenge. He spoke with the softness and firmness of a real Canadian hero who wanted to make this country a better place for everyone.

Chuck did not do it alone. He did it with the strength, determination and love that flowed from his dear wife, Dona, and his lovely daughter, Jodi.

At an election rally in 1997, Chuck told the crowd he was ready to go to Ottawa and fight for them but the jeans and ponytail would stay. Ottawa was not going to change Chuck Cadman.

Well, Chuck came to Ottawa, he fought for what was right, and the jeans and the ponytail stayed. Chuck did not change, but we who knew him have. We are all the better for knowing a great man, a great husband, a great father and a great Canadian.

[Question No. 151, September 26th, 2005]

With regard to government measures that result in the build-up of moisture in the wall cavity of buildings and their inability to dry-out: ( a ) did Canada Mortgage and Housing Corporation (CMHC) management consider this wet wall syndrome in 1981, and if so, what action was taken; ( b ) did CMHC management consider this wet wall syndrome in subsequent years, and if so, when and what actions were taken; ( c ) was CMHC management advised that by being aware of the wet wall problem the corporation would be delinquent if they did not advise the public of the nature of the problem, and if so, what actions were taken; ( d ) was CMHC management advised that government departments could be exacerbating the wet wall problem, and if so, what actions were taken, when were they advised, which departments were involved and what was the result of these actions; ( e ) was CMHC management advised that government programs were resulting in the wet wall syndrome, and if so, what actions were taken, when were they advised, which programs and what was the result of these actions; ( f ) were there, by 1981 and in subsequent years, reported cases of moisture induced structural damage in housing across Canada, and if so, indicate the number by year and by province; ( g ) was CMHC management advised by 1981 and in subsequent years of risks involving structural damage to National Housing Act (NHA) insured housing leading to widespread defaults on mortgages with CMHC having to repossess these units and rectify the problem at substantial costs, and if so, when and what action was taken; ( h ) when was CMHC aware that the wet wall syndrome occurred most often in coastal regions with significant rainfall, and what action was taken with regard to building codes and construction practices affecting British Columbia; ( i ) were there concerns, by 1981 and in subsequent years, that the wet wall syndrome was triggered by barriers trapping moisture and preventing natural drying, and if so, what was the nature of these concerns and what actions were taken to address them; ( j ) was there an awareness at CMHC, by 1981 and in subsequent years, of results of research undertaken by the National Research Council (NRC) suggesting that rain penetration was a primary cause of moisture problems in some climates, and if so, when and what action was taken with regard to British Columbia; ( k ) was there an awareness by 1981 and in subsequent years that changes in the building practices, in part induced by changes in the National Building Code and government programs promoting energy efficiency, were sometimes a source of the wet wall problem, and if so, when and what actions were taken to address this problem; ( l ) which of these changes to the National Building Code addressed moisture penetration in exterior walls and natural drying of the wall cavity, particularly in areas of high relative humidity and rainfall and in what years were these changes made; ( m ) in which years did CMHC or NRC recommend changes to the National Building Code that had the effect of reducing the ability of the wall cavity to dry naturally; ( n ) what measures did CMHC and NRC undertake to alleviate the wall moisture problems, in spite of the slower drying effects of better insulated and airtight assemblies, and when did they take these measures; ( o ) when and what were the nature of National Building Code revisions after 1981 that were designed to improve the ability of the wall cavity to dry naturally, or at least to reduce moisture incursions; ( p ) what active measures did CHMC and NRC take to inform homeowners in British Columbia of the wet wall problem and when were they taken; ( q ) what active measures did CMHC and NRC take to inform builders and the housing industry in British Columbia of the wet wall problem and when were they taken; ( r ) what active measures did CMHC and NRC take to ensure that building practices in British Columbia addressed the wet wall problem, indicating the date of such actions and the success of the initiative; and ( s ) did CMHC liquidate its national portfolio of co-op housing, and if so, (i) when did this occur, indicating by street address the locations, and indicating the number of these co-ops by province, (ii) what was the reason behind the decision to liquidate, (iii) how many of these projects suffered from wet wall and drying problems, (iv) were these problems disclosed to the individuals or government agencies that purchased them, and (v) were engineering reports written, and if so, detail what they disclosed?

(Return tabled)

[Civil Marriage Act, June 28th, 2005]

Mr. Speaker, the hon. member opposite addressed the issue of the Supreme Court's comments on this particular issue. In particular, she mentioned the court's refusal to answer question four. She is fully aware that in the Egan case the court did comment directly on marriage and it recognized the traditional nature of marriage, and commented that marriage was by nature heterosexual. That was the Supreme Court of Canada.

We have lesser courts in this country who have gone the other way, and some would say that their interpretation or view of the charter is that it is a living tree. The problem with that argument is that whenever a court or politicians use this notion of the Constitution being a living tree, they are intending to take off on a path that was unintended by the Constitution.

They seem to forget where that notion of a living tree came from. Let me remind the member opposite that it did come from the Persons Case that went to the privy council in London. In that particular case, although women had been allowed to vote for years, our Constitution had always been taken to mean that only men could vote. The Persons Case was heard in about 1930, long after women were voting, so the issue became whether the actual words in the Constitution would prevent their appointment as senators, and the court said no. It used this notion that the Constitution was a living tree and could tolerate the interpretation that persons meant women, so it is not a big stretch for us today to say that persons means men or women.

My comment to the member opposite is that the living tree doctrine is dangerous when judges take it to mean licence to rewrite a statute or the Constitution, but very workable if they are simply trying to make sense out of a word that might have several interpretations, as the word person would.

I wonder if the member opposite would concur that it is dangerous when courts take these liberties and use as justification the notion of a living tree, rather than using that notion of a living tree as it was meant in this case back in 1930.

[Civil Marriage Act, June 28th, 2005]

Mr. Speaker, when I listen to the member opposite, I cannot help feeling that maybe I am a little like Alice stepping through the looking glass. When Alice stepped through the looking glass she found herself in a world where the rules of life had changed and nothing seemed to make sense any more. At one point she encountered Humpty Dumpty sitting on a wall. He said to Alice, “When I use a word, it means just what I choose it to mean, neither more nor less”. Somewhat perplexed by this, Alice said, “The question is whether one can make words mean so many different things”. Humpty Dumpty barked back, “The real question is, which is to be master, that is all”.

It seems to me that there is more of Humpty Dumpty in the member opposite than there is of Alice.

[Civil Marriage Act, June 28th, 2005]

Mr. Speaker, I want to thank my friend opposite for a very thoughtful and well-reasoned presentation.

The previous member, the member for Mississauga South, suggested that the Supreme Court has given us a clear signal on this particular issue. My friend opposite referenced the Constitution as a living tree, and I think most recognize that. The difficulty, of course, is that there is a conflict here. We essentially have nine lawyers in the Supreme Court telling 308 elected members what kind of country we should have.

My question is this. Is the problem we are facing here on this issue now that the Constitution does not really define the balance between the rights of Parliament to define society and the duty of the court to tweak Parliament's decisions with reference to the Constitution and the charter? It seems to me that is part of the problem we have today. There is no balance between just what the court can say and Parliament's rights here. Personally, I would fault the government for not stepping up to the plate and protecting Parliament's interest in this delicate balance, which perhaps is not so delicate. I wonder if the member had some thoughts on that notion.

[Civil Marriage Act, June 28th, 2005]

Mr. Speaker, I want to congratulate my colleague on a fine speech. I agree with him that the courts have been particularly aggressive on this issue.

I asked the member for Scarborough—Rouge River a question about the government's failure in this regard. I wonder if the member would comment on that. Briefly, my question was that when charter equity challenges were heard in the lower court, the court only had the option of rejecting the claim or offering marriage. However, when the Supreme Court was expressly asked in question four in the same sex marriage reference, is the opposite sex requirement for marriage for civil purposes consistent with the Canadian Charter of Rights and Freedoms, it declined to answer the question. This was in essence because if it had voted yes to that, it would have thrown the whole state of law into confusion.

In my view the federal government dropped the ball here. It should have aggressively defended the traditional definition of marriage and it did not. I wonder if my friend would comment on that.

[Civil Marriage Act, June 28th, 2005]

Mr. Speaker, I do not want to put words in my friend's mouth, but in his discussion he suggested that perhaps the fault here lay with the courts. Stanley Hartt, in a presentation before the parliamentary committee studying the legislation, stated that Bill C-38 had provoked divisiveness because it was based on:

--an unsustainable claim that the government is acting out of a constitutional imperative to alter the traditional definition of marriage... because this is the only way to accommodate their equality rights under the Canadian Charter of Rights and Freedoms.

Mr. Hartt stated, “ I see this claim as unsustainable, because I don't believe it's true”. He noted that when the charter equality challenges were heard in the lower court, the court only had the option of either rejecting the claim or offering them marriage. However, when the Supreme Court was expressly asked in question four in the same sex marriage reference, “Is the opposite sex requirement for marriage for civil purposes consistent with the Charter of Rights and Freedoms”, Mr. Hart noted that the Supreme Court declined to answer the question.

Is it then not so much the fault of the courts, but the fault of the government for failing to adequately pursue this issue and to adequately defend the traditional definition of marriage?