Sean Casey

[Privilege, March 27th, 2014]

Mr. Speaker, I rise on a question of privilege pursuant to Standing Order 48, to allege that the Attorney General of Canada and justice minister misled the House yesterday during question period. We cannot accept a situation where the chief legal officer, the Attorney General of Canada, would rise in this place and, in response to a direct question put to the minister, mislead the House by making statements that are demonstrably untrue.

These are the facts. In January of this year, I submitted, pursuant to the Standing Orders, a written question that read as follows:

With regard to Section 33 of the Canadian Charter of Rights and Freedoms: (a) what is the current policy of the government, particularly the Department of Justice, about the use or invocation of Section 33; and (b) since 2006, how many times has the government directed, suggested, contemplated or requested an analysis, examination or consideration from departmental officials within the Department of Justice, the Privy Council Office, or any government department, about the possible use of Section 33?

The written response, signed by the Attorney General himself, stated:

(a) The Department of Justice has no policy on the use or invocation of section 33 of the Canadian Charter of Rights and Freedoms commonly referred to as the “notwithstanding clause”. To date, Parliament has never made a legislative declaration pursuant to section 33, although certain provincial legislatures have done so.

That was the full response. There was no response to the (b) part of the question.

That was the response that the Attorney General provided to the House of Commons on Monday, March 24, 2014, just three days ago.

Yesterday, Wednesday, March 26, there was a question and answer exchange between the Attorney General and I during question period. I posed the following question:

Mr. Speaker, the Minister of Justice has refused to answer my written question about whether he or any of his political staff have ordered Justice officials to review the use of the notwithstanding clause to overrule Supreme Court decisions.

The courts have slapped down the Conservative legislation on sentencing, fine surcharges, prostitution, their unconstitutional judicial appointment—and lest we forget, this minister fought veterans in court and lost.

Will the minister tell the House, when did he or his staff first order departmental officials to assess the use of the notwithstanding clause?

This is the relevant portion of his response. It states:

Mr. Speaker, I have no idea why [this] member is insisting on the government examining the use of the notwithstanding clause, unless it is based on the fact that it was his government, his party, that [were the] only [ones] who ever used it. Maybe the member has a propensity for the use of the notwithstanding clause.

The answer went on to describe the situation with regard to veterans, which is not particularly pertinent to the point that I seek to make.

The House relies on members and ministers of the Crown to speak the truth. Arguably, this burden rests in a heavier way upon the Attorney General of Canada, the chief legal officer for the country and an officer of the court. It cannot be tolerated by this House to have the Attorney General state, without equivocation, on Monday, “To date, Parliament has never made a legislative declaration pursuant to section 33...”. and then, for what must be assumed to be partisan purposes, directly contradict himself, by stating the following, two days later, in response to a question about the notwithstanding clause:

....I have no idea why [this] member is insisting on the government examining the use of the notwithstanding clause, unless it is based on the fact that it was his government, his party, that [were the] only [ones] who ever used it. Maybe the member has a propensity for the use of the notwithstanding clause.

We have before the House two statements made by the same minister that are directly in conflict with each other. It cannot be said that this was an error because one statement had been made some time ago, thus attributing it to poor memory. I sincerely hope that this is not a situation where the minister does not know the facts regarding the history of the use of the notwithstanding clause.

Two directly contradictory statements were made in the House within a period of 48 hours, and this is not inconsequential. To make matters worse, the Attorney General of Canada rose some time later on an attempted point of order in order to clarify his conflicting statement. He apparently sought to clarify his statement in response to a previous point of order from the hon. member for Mount Royal, who, I should note, clearly and factually indicated that a Liberal government had never invoked the notwithstanding clause nor had there been any evidentiary basis to suggest that there was a threat to do so.

Here is what the Attorney General of Canada stated as he attempted to clarify his remarks:

For clarity, I wish to ensure that my answer did not imply that the Liberal government of the day “invoked”, which is the word that the member used, the notwithstanding clause, but threatened to use it.

The Attorney General, in attempting to clarify his remarks, further misled the House. He effectively doubled down by suggesting that his answer to me during question period did not imply something that we know from the record, he had stated clearly, as a point of fact.

Again, the record will show that the Attorney General of Canada told the House one thing on Monday, something entirely different on Wednesday in response to a question during question period, and then further misled by suggesting that he did not say what he said.

This is no minor matter, and this is not the first time that this House has been confronted with conflicting statements from a minister of the Crown.

Members will recall former Conservative minister of international cooperation Bev Oda, who repeatedly told the House of Commons that she knew nothing about the matter of who had inserted the now infamous “not” in a cabinet document that was meant to approve funding for KAIROS. The infamous “not” had the effect of killing funding for KAIROS. That minister then repeatedly told the House that she had no knowledge as to who inserted the “not”, only to disclose sometime later, when confronted with evidence pointing to the fact, that she not only had knowledge of the infamous “not”, but she in fact had ordered its insertion.

On a question of privilege raised by my colleague the hon. member for Scarborough—Guildwood, Speaker Milliken determined that indeed there was a prima facie case to suggest that the then-minister of international cooperation had misled the House.

More recently, we had the situation of the member for Mississauga—Streetsville, who stood accused of knowingly misleading the House with a statement in relation to the so-called fair elections act. In that instance, the member for Mississauga—Streetsville told this House that he had witnessed voter fraud during the 2011 election. The member made that false claim as a way to provide some credibility to the so-called fair elections act. He retracted that statement after a significant period of time had elapsed, and only when his claim was proven to be false.

In your ruling, Mr. Speaker, you quoted a previous decision rendered on May 7, 2012, in which you outlined the test to be applied that would give rise to a prima facie point to a member’s misleading the House. You said:

One, it must be proven that the statement was misleading; two, it must be established that the member making the statement knew at the time that the statement was incorrect; and three, that in making the statement, the member intended to mislead the House.

On point number one, to prove that the statement is misleading in the case before you, Mr. Speaker, one need only examine the legislative record. The legislative record is very clear. The answer that the minister gave to the written question on Monday is accurate. No Liberal government, no Conservative government, no Government of Canada has ever invoked the notwithstanding clause. That can be discerned from the legislative record.

Point two, it must be established that the member making the statement knew at the time that the statement was incorrect. Well, he certainly knew on Monday when he signed the document that was tabled in the House that indicated the correct state of affairs.

Point three, in making the statement, the member intended to mislead the House.

There are only two explanations for his intentions. Number one, he did not know, or number two, he did know but attempted to mislead. I find it difficult to imagine that a parliamentarian of his experience, someone who sits in the cabinet, did not know the true state of affairs. There is only one possible explanation left.

Mr. Speaker, I will be asking you to review the record and to review the statements made by the Attorney General. I submit that the statements made by the Attorney General contain all the elements that you outlined in your previous ruling. I believe that upon review, you will find it is a clear case that the Attorney General deliberately attempted to mislead the House by way of his statement or, in this case, a series of statements to the House, that he knew or ought to have known were either false or an attempt to mislead.

We expect people to speak the truth, not to play loose with statements purporting to be statements of fact. Indeed, to deliberately mislead the House is a clear contempt of Parliament and must be addressed. This is particularly problematic in that these misleading statements were made by the Attorney General of Canada.

Mr. Speaker, if you find that there is a prima facie breach of privilege in this case, I am prepared to move the appropriate motion.

[Questions Passed as Orders for Returns, March 27th, 2014]

With regard to outside legal counsel, legal advice, or any other form of legal assistance provided to government by non-government lawyers, and broken down by year since 2006: (a) what is the amount spent by department; (b) what program activities across government account for the top twenty expenditures used for non-government legal services; (c) what are the names of law firms used; (d) what is the breakdown of expenditure wherein the government was the defendant, by department and by cause of action; and (e) what is the breakdown of expenditure where the government was the plaintiff, by department and by cause of action?

[Justice, March 26th, 2014]

Mr. Speaker, the Minister of Justice has refused to answer my written question about whether he or any of his political staff have ordered Justice officials to review the use of the notwithstanding clause to overrule Supreme Court decisions.

The courts have slapped down the Conservative legislation on sentencing, fine surcharges, prostitution, their unconstitutional judicial appointment—and lest we forget, this minister fought veterans in court and lost.

Will the minister tell the House, when did he or his staff first order departmental officials to assess the use of the notwithstanding clause?

[Divorce Act, March 25th, 2014]

Mr. Speaker, may I begin by first congratulating the member for Saskatoon—Wanuskewin for his long service in this place. We differ in philosophy. We differ in political stripe. In fact, we differ on this bill. However, for anyone who has served his constituents and Canadians for 19 years, that is indeed something to be commended. I know the member has indicated that he does not intend to re-offer in the upcoming election. We have several months before the next election, I think, but it is not too early to acknowledge the significant contribution of this parliamentarian.

The bill placed before the House in his name, Bill C-560, is an effort to change the standard applied by the courts when dealing with divorce cases. Specifically, the summary contained in the bill reads as follows:

This enactment amends the Divorce Act to replace the concept of “custody orders” with that of “parenting orders”. It instructs judges, when making a parenting order, to apply the principle of equal parenting unless it is established that the best interests of the child would be substantially enhanced by allocating parental responsibility other than equally.

This is not the first time that the member has introduced a bill on this matter. The most significant changes that the bill would bring to the Divorce Act are, first, the removal of the current definition of “custody” from the Divorce Act, replacing it with “parenting”. That is defined as “the act of assuming the role of a parent to a child, including custody and all of the rights and responsibilities commonly and historically associated with the role of a parent”. Second is the creation of a presumption that allocating parenting time equally between the spouses and equal parental responsibility are in the best interests of the child. Third is the addition of factors that courts must consider in making custody orders.

The current law mandates the application of the best interests of the child test. The best interests of the child test has been a fundamental part of most legislation relating to children for years. This doctrine is not unique to family law proceedings. It is also used in federal legislation under the Immigration and Refugee Protection Act, the Citizenship Act, and the Youth Criminal Justice Act. It is also used in some provincial legislation dealing with matters, such as custody, access, and child support for unmarried couples; child protection legislation, and by that I mean legislation dealing with the apprehension and supervision of children by child protective services; adoption legislation; and in some provinces, change of name legislation.

None of the federal acts defines best interests of the child, as was pointed out by the member. However, many provincial family law and child protection acts include extensive definitions of the concept. Some provincial acts even include different best interests of the child tests for different contexts. For example, the Ontario Child and Family Services Act defines the test differently for child protection than it does for adoption.

As it stands now, courts must apply the best interests of the child from the perspective of the child, not the parents, and they must consider the long-term interests of the child as well as the child's day-to-day needs.

Three primary considerations under the best interests of the child test that the courts often consider are preserving the status quo in the interests of maintaining some stability for the child, whether one parent acted as the primary caregiver during the relationship, and the importance of keeping siblings together when considering future housing arrangements.

The best interests of the child is a critical component of the Divorce Act, and it appears in sections relating to custody. Under the current act, the best interests of the child, as it relates to condition, means that needs and other circumstances of the child are the overriding factor that the courts may consider when making a custody order. Further, when making a custody order, courts must give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child. For that purpose, it should take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

We all know that divorce is often a painful experience for couples, particularly when children are involved. In an ideal world, parents would see past their differences and would apply what the courts currently apply, which is to say, the best interests of the child standard. However, since divorce is sometimes acrimonious, painful, and filled with emotion, the best interests of the child are sometimes lost or confused with the subjective interests of a parent, and often those competing interests are to the detriment of the child or children.

It is for that reason, in part, that a judge must have the ability to apply his discretion to ascertain the facts and eventually make a determination of what is in the best interests of the child. I fear that what the hon. member is proposing would seriously alter that standard and would remove the discretion of the judge to assess the case through the best interests of the child and not the father or mother.

I am not alone in my concern about this bill. The Canadian Bar Association has very serious concerns about this bill. This is what the CBA had to say about the bill when it was introduced in a previous Parliament as Bill C-422, now Bill C-560. I will quote the Canadian Bar Association, which stated:

As lawyers, we assist all family members in restructuring their responsibilities and arrangements following separation and divorce. As a result, the CBA Section sees this issue from all sides. We firmly believe that the only perspective to foster outcomes that are best for children is to require that the courts and parents focus solely on the children’s interests in making decisions.

Bill C-422 [now Bill C-560] does not accomplish what it proposes. It does not give parties tools to resolve differences, nor does it assist them in making plans to share decision-making and physical care of children to minimize conflict and maximize children’s benefits. It would move from considering the individual child to preferring parents’ rights. It would encourage contentious litigation in future cases of family breakdown, and equally important, would cause thousands of children to be re-exposed to litigation and conflict as many settled cases would be reopened.

Those are the words of Canadian Bar Association. They are not mine.

It further stated:

Under current law, the legal playing field is even; there is no gender bias in law requiring judges to consider “the best interests of the child” as paramount. Instead, the Bill proposes an overly simplistic idea of equality: rather than considering a fair result best for the children involved in the case at hand, children must be split right down the middle. The Bill does not advance equality for either fathers or mothers. Its proposals would come at the sacrifice of the appropriate focus, solely on what is best for children.

There is more in the way of opposition to this bill, and it comes from the member's own party. Senior ministers have come out against this effort. In 2009, speaking at the Canadian Bar Association's annual conference, the then minister of justice and attorney general, now defence minister, was asked his position on equal parenting and the bill we are now debating. He stated, “the best interests of the child are always paramount...and should be”.

The member for Saskatoon—Wanuskewin will know that just two weeks ago, his colleague and friend, the current Minister of Justice, appeared at the justice committee to account for his supplementary estimates request. During the meeting, the minister was very willing to answer questions, and I felt he was reasonable and fair in some of his responses, including the response to a question about whether the government intends to invoke the notwithstanding clause of the charter on matters where it disagrees with the Supreme Court.

I posed a direct question to the minister about Bill C-560, which is before the House today. This is what I asked the minister at committee:

A private member's bill is coming before the House, C-560, dealing with the Divorce Act. Back in 2009, your predecessor, [the Minister of National Defence], indicated that the best interests of the child are always paramount. Given that this question is about to come before the House, what are your views on that, sir?

He answered:

This particular private member's bill will receive, I'm sure, the rigorous examination that all private members' bills receive. I am familiar with the one you're referencing. I can tell you, having practised some family law—as you have in Prince Edward Island—that the long-held legal maxim and the jurisprudence definitely supports that the best interests of the child will remain the primary concern. I see no change in that regard.

I asked a supplementary:

The bill proposes to weaken that in favour of parental rights. Do you realize that?

The minister's response was “Yes, I do realize that”.

The Divorce Act currently establishes the best interests of the child as the paramount consideration in custody cases. In other words, the rights of the parent are subordinate to the interests of the child.

This legislation seeks to weaken that. It is not acceptable to the Liberal Party of Canada. It is not acceptable to the Canadian Bar Association. It is not acceptable to the present Minister of Justice or to the former minister of justice. That is why we will oppose the bill.

[Divorce Act, March 25th, 2014]

Mr. Speaker, I want to come back to a question that was posed by the member for Gatineau but that was not dealt with in the member's answer. It is something that troubles me also.

Most custody and divorce arrangements result in a separation agreement that deals with custody and access to the children. Many of these agreements are then incorporated into court orders. One of the things the bill would do would be to effectively reopen all of these agreements and make them subject to further negotiation and possibly to further litigation.

Does the member have any appreciation for the chaos that would be caused in otherwise settled, stable child custody and access arrangements by this retroactivity?

[Questions Passed as Orders for Returns, March 24th, 2014]

With regard to Section 33 of the Canadian Charter of Rights and Freedoms: (a) what is the current policy of the government, particularly the Department of Justice, about the use or invocation of Section 33; and (b) since 2006, how many times has the government directed, suggested, contemplated or requested an analysis, examination or consideration from departmental officials within the Department of Justice, the Privy Council Office, or any government department, about the possible use of Section 33?

[Questions Passed as Orders for Returns, March 24th, 2014]

With regard government owned aircrafts, since 2012: (a) what is the list of types of aircrafts operated by the government and the passenger capacity for each; (b) excluding aircrafts operated by the Department of National Defense, how many aircrafts are available for use by ministers; (c) excluding aircrafts operated by the Department of National Defense, how many times have ministers requested and used government aircrafts; and (d) excluding aircrafts operated by the Department of National Defense, how many times have ministers requested and used government aircraft for travel outside of Canada and for what purpose?

[Questions Passed as Orders for Returns, March 24th, 2014]

With regard to outside legal services provided by non-government lawyers, since 2006: (a) by what means does the government select external lawyers and law firms to provide legal services; (b) what role do ministers play in approving which law firms receive contracts related to outside legal services; (c) how many times have external law firms or lawyers been used for the purpose of providing advice, consultation or drafting of any government legislation or regulation and what were the subject matters of the proposed legislation or regulation; (d) how many times has the government sought outside legal advice from a lawyer or law firm from outside of Canada; and (e) how many times has the government sought legal advice, consultations or technical support from any non-Canadian law firm in the drafting of legislation or regulation?

[Questions Passed as Orders for Returns, March 24th, 2014]

With regard to outside legal counsel, legal advice, or any other form of legal assistance provided to government by non-government lawyers, and broken down by year since 2006: (a) what is the amount spent by department; (b) what program activities across government account for the top twenty expenditures used for non-government legal services; (c) what are the names of law firms used; (d) what is the breakdown of expenditure wherein the government was the defendant, by department and by cause of action; and (e) what is the breakdown of expenditure where the government was the plaintiff, by department and by cause of action?

[Canada-Honduras Economic Growth and Prosperity Act, March 6th, 2014]

Mr. Speaker, as always I appreciate the passion that the member for Dartmouth—Cole Harbour brings to this place.

At the outset of his remarks, he described his party as one that is in favour of free trade. There are a couple of sayings that come to mind immediately. One is that they can “talk the talk, but not walk the walk”; and also, perhaps not in the context of this particular agreement, but in general, that “the perfect is often the enemy of the good”.

Given the member's statement that his party is one that supports free trade, other than the free trade agreement with Jordan, could he provide a list of the free trade agreements that his party has voted in support of?