HAFF Committee Meeting

37th PARLIAMENT, 3rd SESSION

Standing Committee on Procedure and House Affairs

EVIDENCE

CONTENTS

Thursday, February 26, 2004

Á

1110

The Chair (Mr. Peter Adams (Peterborough, Lib.))

Â

1210

The Chair

Mr. Chuck Strahl (Fraser Valley, CPC)

The Chair

The Chair

Hon. Roger Gallaway (Sarnia—Lambton, Lib.)

The Chair

Mr. Chuck Strahl

The Chair

Mr. Jim Pankiw (Saskatoon—Humboldt, Ind.)

The Chair

Mr. Jim Pankiw

Â

1215

The Chair

Mr. Chuck Strahl

Mr. Jim Pankiw

The Chair

Â

1220

Ms. Diane St-Jacques (Shefford, Lib.)

Mr. Jim Pankiw

Mr. Benoît Sauvageau (Repentigny, BQ)

The Chair

Mr. Benoît Sauvageau

Mr. Jim Pankiw

Â

1225

Mr. Benoît Sauvageau

The Chair

Mr. Benoît Sauvageau

The Chair

Mr. Jim Pankiw

The Chair

Mr. Benoît Sauvageau

The Chair

Hon. Roger Gallaway

The Chair

Hon. Roger Gallaway

The Chair

Mr. Jim Pankiw

The Chair

Mr. Yvon Godin (Acadie—Bathurst, NDP)

Â

1230

Mr. Jim Pankiw

Mr. Yvon Godin

The Chair

Mr. Jim Pankiw

The Chair

Mr. Chuck Strahl

Mr. Yvon Godin

The Chair

Mr. Yvon Godin

Mr. Chuck Strahl

The Chair

Mr. Chuck Strahl

Mr. Marcel Proulx (Hull—Aylmer, Lib.)

The Chair

Mr. Marcel Proulx

The Chair

Mr. Chuck Strahl

Â

1235

The Chair

Mr. Jim Pankiw

The Chair

Mr. Benoît Sauvageau

Mr. Jim Pankiw

Mr. Benoît Sauvageau

Mr. Jim Pankiw

Mr. Benoît Sauvageau

Mr. Jim Pankiw

Mr. Benoît Sauvageau

Mr. Jim Pankiw

The Chair

Mr. Jim Pankiw

The Chair

The Chair

The Chair

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CANADA

Standing Committee on Procedure and House Affairs

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NUMBER 006

l

3rd SESSION

l

37th PARLIAMENT

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EVIDENCE

Thursday, February 26, 2004

[Recorded by Electronic Apparatus]

Á  (1110)  

[English]

    The Chair (Mr. Peter Adams (Peterborough, Lib.)): I think we can begin the public portion of our meeting.

    Jim, if you'll excuse me, I'll do some housekeeping before we get to this.

    I realize that I forgot to deal with the draft report on privilege. Is it okay if I proceed? People have all looked at it. Can I be instructed just to go ahead with it?

    Colleagues, I would like to suggest--I think you've all looked at the draft report on privilege--that it be considered approved, and I will table it in the House. Is that okay?

    Some hon. members: Agreed.

  (1210)  

    The Chair: Thank you very much.

    I'll also advise you that with respect to the action plan on democratic reform, the three letters we approved the last time have now gone.

    I have to mention to you that with respect to the supplementary estimates—and I have a calendar here someplace—in my view it's virtually impossible for us to consider our supplementary estimates. We've done it in the past, but the timeframe is such that I frankly don't see how we'd do it. So I just say that. If you want to comment you can comment. If you don't want to comment, good.

    There's something else. With respect to our dealing with the action plan—I wish I had mentioned this before—we've sent off these letters, so we're dealing with appointments and we're getting information from the other committees on the various parts of the action plan we're supposed to be dealing with. You also know we've tabled our report on the televising of committees, extending the experiment forward.

    One of the things in the action plan is this business of using modern technology, citizen engagement, webcasting, video conferencing, and electronic filing of motions and questions. Obviously, we could have many meetings on that topic, but I thought it would be very useful if we requested a report summarizing what is being done on the Hill on those matters at the present time. I'd like your approval to do that.

    I would ask that a report be delivered by Hill staff to the committee—this is not for the House of Commons—summarizing those things, particularly the webcasting, which I think complements what we've been trying to do with televising of committees.

    Are you comfortable with that?

    Chuck Strahl.

    Mr. Chuck Strahl (Fraser Valley, CPC): Just to be clear, when you say a report, are we going to put together a report, or are we going to have witnesses in?

    The Chair: No, absolutely not. I just meant we'd get the report so we'd have the information. When we get back to the action plan and we decide what we're going to do, it would be ready for us, in the same way as the information from those letters will be ready.

    Are you okay with that?

    Some hon. members: Agreed.

    The Chair: Thank you very much.

    At the moment we are returning to Bill C-3, and the parties have agreed to do this on the Tuesday we come back. That Tuesday, because of Kofi Annan's visit, the House of Commons will be closed in the morning, so our Tuesday meeting will be at 3:30. It will be on Bill C-3, and at the request of members of the committee there will be a witness or witnesses.

    If, by the way, people have ideas--we're certainly going to have the Chief Electoral Officer--let me know. We're looking at that.

    Yes, Roger.

    Hon. Roger Gallaway (Sarnia—Lambton, Lib.): Mr. Chairman, I think the request was for Mr. Kingsley, also that an invitation be extended to Mr. Figueroa, on the understanding that he may not wish to come, and that would be the same day.

    The Chair: Okay, do you have that, Thomas?

    That's exactly so. Then the first Thursday back, we return to the action plan.

    I've one other thing to mention, and this has nothing to do with anybody here, but Loyola agreed to it, Michel was involved, as was Lorne Nystrom, who was here the other day. It's motion 398, on youth voting. As Mr. Kingsley will be coming to our next meeting, it was directed to him. The four members of this committee were interested. I certainly won't take any time if there is no time available for it, but we are very interested in what Mr. Kingsley is doing before the next federal election with respect to motion 398.

    I just needed that on the record.

    Yes, Chuck.

    Mr. Chuck Strahl: Just for the record, on the estimates, I realize we're constrained by time, but I actually haven't gone through the supplementaries yet. If there's something that catches my eye, I may bring a motion that we do hear a witness on that. So I don't know for sure, but I just want to put that on the record as well.

    The Chair: Okay.

    I put it on the record because it seemed to me very difficult for us to do it, but I'm in the committee's hands, as you know. I accept that.

    Thank you.

    Jim, we appreciate your coming. You've taken your opportunity to appeal the decision of our subcommittee.

    My understanding is that you'll make a statement. The committee may ask you questions or discuss this matter with you. When that is completed, it's my understanding we will go back in camera to make a decision. Are you comfortable with that?

    Mr. Jim Pankiw (Saskatoon—Humboldt, Ind.): Yes.

    The Chair: We're in your hands.

    Mr. Jim Pankiw: I have here the list of criteria for making items of private members' business non-votable, and I think it was the position of your committee that number two is the reason you've deemed this to be non-votable, that the bill violates the Constitution, but in fact it doesn't.

    First of all, if you look the equality section of the Charter of Rights and Freedoms, section 15, sexual orientation is not included in that. So it does not violate someone's equality rights to maintain the legal definition of marriage as a union of a man and a woman because sexual orientation is not included in section 15 of the Constitution.

    But notwithstanding that and more to the point of the bill, not only is the bill not unconstitutional, it specifically uses the Constitution, section 33, the notwithstanding clause, to prevent a court challenge against the legal definition of marriage.

    So on both those counts the bill clearly does not violate the Constitution. On the contrary, it uses the Constitution, the notwithstanding clause. It's as simple as that. To say that this violates the Constitution is just clearly not the case, because it uses the Constitution. The notwithstanding clause was put in the Constitution in contemplation of just this type of a use. It's a perfect example of where one would use the notwithstanding clause.

    So to deny this bill as being votable, there's no legitimate grounds on which to do that, and it would be breaching my privilege and right as an MP to have this issue put forward.

    I'd like to say as well that members of this committee should not allow their decision to be prejudiced based on what they think of the bill--in other words, how they would or would not vote on it. What you think or how you would contemplate voting in the House of Commons should be detached from your decision on whether or not this thing is votable. There are no legitimate grounds to deem it not votable.

  (1215)  

    The Chair: Thank you, Jim.

    Colleagues, I'm quite willing to proceed informally or in the usual order.

    I have Benoît so far, but, Chuck, if you're going to speak out, we'll start with you. I'll go through the parties in our usual order, so it will be Chuck Strahl, a Liberal if they wish, Benoît Sauvageau, a Liberal if they wish, and then Yvon Godin, and then a Liberal if they wish.

    Chuck.

    Mr. Chuck Strahl: Thank you.

    Thanks, Jim, for coming to the committee for this.

    I think you've almost struck out on new ground here. I've never seen a private member's bill before that uses the notwithstanding clause. The notwithstanding clause is part of the Constitution, but it's also seen as extra-constitutional for some people; they just say if the courts have ruled on something then you have to overrule the courts, so it gets into this tricky area.

    Personally, I think it's in order. Whether I agree with the bill or not, I think we can debate it in the House of Commons and we can get at it there. I'm not afraid of these kinds of issues, and I don't think any of us should be. We should have the debate, have the vote, and it seems to me that to urge someone to use the notwithstanding clause.... In fact, the Prime Minister has indicated that, for example, he would use the notwithstanding clause to protect churches if necessary from having to perform same-sex marriages. He's prepared to step in and use the big gun, use the big bat, if necessary.

    So it seems to me that this is in order, unless there's something about this that I don't understand. It probably is controversial, but the notwithstanding clause is a constitutional provision, so I agree with you. You made a short argument, and I don't know how much longer or shorter it can really be.

    I think you're right.

    Mr. Jim Pankiw: It may be constitutional, but that's not the point. Controversy is not part of the criteria that are to be considered if a bill is votable or not.

    The Chair: Diane St-Jacques and then Benoît Sauvageau.

  (1220)  

[Translation]

    Ms. Diane St-Jacques (Shefford, Lib.): It's more in the nature of a comment, but perhaps you will want to respond. Why even bother tabling a bill when we're awaiting a ruling from the court on the definition of marriage? Aren't we getting ahead of ourselves just a bit, since we haven't yet...? We've not yet received any information. In my view, it would be pointless to hold a debate in the House, since we have many other issues to attend to. I think we should wait, and then...

[English]

    Mr. Jim Pankiw: There are two things I would comment to you about that.

    First, this bill is pertinent to the court's decision, because what this bill would do is protect the legal definition of marriage, notwithstanding what the court's decision would be. In other words, that court challenge would be a moot point if this bill passes.

    But second, again I get back to the issue that whether or not you accept the argument that the timing of this is good, or not good, or whatever, that's not a criterion to justify making it non-votable. The reason the committee initially gave is it violates the Constitution, but it doesn't. So you may not agree with the timing, but that's not the point.

    That's a point you could make in debate and maybe vote against the bill on those grounds, and that would be fair, but it would be unfair to deem this not votable, because there's no legitimate reason for doing so.

[Translation]

    Mr. Benoît Sauvageau (Repentigny, BQ): I'm pleased that you are still able to take advantage of the interpretation. I know that you are a great believer in and strong advocate of this service. That's why I will avail myself of my right to speak French and, thanks to the interpretation, you'll be able to understand me.

    As I see it, Mr. Pankiw, your Bill is lacking certain components and some of your arguments are a little weak. I'll address the matter of the notwithstanding clause as well at the end. First of all, your bill states that “... marriage, as defined between one man and one woman, has from time immemorial ...” Time immemorial takes us back to a Vatican Council in the 13th or 14th century, because prior to that era, polygamy was commonplace among followers of the Catholic as well as other faiths. As you may recall, King David had many wives. Therefore, according to Vatican studies, the first definitions of marriage embraced by the Catholic Church date back to the 13th or 14th century.

    You restrict marriage to a union between one man and one woman, but you also neglect to mention that marriage is for life and that the purpose of this institution is procreation. Are you prepared to take it one step further and say that a man and a woman who marry should not be allowed to get divorced? Or that persons who are sterile or who are too old to have children should not get married, because the definition of marriage stipulates that the purpose of the exercise is procreation? I find your definition rather narrow, if you want to follow through with your argument or hold to your ideals. Logically, therefore, you could amend your bill to ban divorce and prohibit sterile persons from getting married, because they can't procreate.

    This will be my final question or comment. Is it wise, in your opinion...?

[English]

    The Chair: I feel obliged to interrupt, because I must say, colleagues, we're discussing the decision of our subcommittee and whether it's appropriate, whether the criterion that was used was the appropriate one and that kind of thing.

    Jim, just a minute.

    Members can discuss whatever they like, but at the moment, in fairness to our colleague, that's what we're discussing. We're discussing whether the decision was correct.

[Translation]

    Mr. Benoît Sauvageau: You're right, Mr. Chairman. I'll speak to the issue. In any case, I'm just trying to make a point.

    You would like each MP to have the right to invoke the notwithstanding clause. If we go along with your argument, in so far as the Constitution and the Canadian Charter of Rights and Freedoms are concerned, MPs would have the right, under clause 4.2 of your bill, to invoke the notwithstanding clause in the case of sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms and, if we deem your bill votable, we would be agreeing to give each Member of the House of Commons the right to invoke, on an individual basis, the notwithstanding clause. Is that in fact what you're proposing?

[English]

    Mr. Jim Pankiw: No. The notwithstanding clause does apply to sections 2 and 7 in the Constitution, and section 15, and it itself is a constitutional measure. So this wouldn't infer any kinds of rights on members of Parliament that didn't previously exist. All it would mean is that by the law of the land, by statute, the legal definition of marriage would be protected from a court challenge. That's what the effect of the bill would be.

    What we're here to discuss today is whether this bill is unconstitutional, and I'm saying no, clearly, it isn't. In fact, it contemplates using the Constitution--

  (1225)  

    Mr. Benoît Sauvageau: It's not clear.

[Translation]

    That's why we're asking the Supreme Court to rule on this issue. You're talking about a definition of marriage that would be outside sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms. You're doing an end run around the Charter by allowing for the possibility of invoking the notwithstanding clause, if I understand correctly.

    In my view, our decision in this instance is justified, because it is based on the second criteria for determining if a bill can be deemed votable or not, that is if it violates the Canadian Charter of Rights and Freedoms, as this bill does.

[English]

    The Chair: Speak through the chair, please.

[Translation]

    I'm still the Chair.

    Mr. Benoît Sauvageau: I realize that you will not violate the Canadian Charter of Rights and Freedoms, but through you, I'm wondering why he is doing so?

[English]

    The Chair: Just speak through the chair.

    Jim, go ahead.

    Mr. Jim Pankiw: I guess I'm just repeating myself at this point. The notwithstanding clause is part of the Constitution, and it overrides those other sections. That's the whole intent and purpose of having that clause in the Constitution.

    It boils down to whether this bill should be votable. The committee initially decided no on the grounds that it was not constitutional, but that's erroneous. It is constitutional. In fact, it contemplates using section 33 of the Constitution. It can't be anything but constitutional, because that's what it does. That's the only point.

    I appreciate that people have different feelings and opinions. The honourable member here was kind of dissecting my bill, but those kinds of points should be debated in the House of Commons when this bill is debated. I think the only question for the committee here is whether this should be votable, and if not, why not. I'm saying there is no legitimate reason to not deem it votable.

    The Chair: Benoît, a short comment.

[Translation]

    Mr. Benoît Sauvageau: I'm fine.

[English]

    The Chair: Okay.

    It's Roger Gallaway, Yvon Godin, and then Chuck Strahl.

    Hon. Roger Gallaway: Thank you, Mr. Chair.

    I'm just wondering if we can get confirmation from the chair of the subcommittee on whether that was the reason why the subcommittee decided it was not votable.

    The Chair: Yes. We have the first report of this committee.

    Hon. Roger Gallaway: I just want to make a comment in that regard. I've heard various colleagues use the term “the court will rule”, or “the court decision” in contemplation of the reference to the Supreme Court. I would point out to members that is incorrect. In fact, there is no court decision or ruling.

    Under section 56 of the Supreme Court Act, an opinion is sought from the Supreme Court that is non-binding on anyone, which therefore would contemplate that section 33 of the 1982 act could be invoked at any time by Parliament.

    So I think we should be careful when we start talking about a court ruling and a court decision, because none of that is going to happen.

    The Chair: Jim, do you want to comment on that, or should I proceed?

    Mr. Jim Pankiw: No. He's exactly right on. That's the point.

    The Chair: Yvon Godin.

[Translation]

    Mr. Yvon Godin (Acadie—Bathurst, NDP): Thank you, Mr. Chairman.

    The subcommittee based its decision on the second criteria for determining whether a bill is deemed votable or non-votable, and on the Constitution Acts of 1867 and 1982, including the Canadian Charter of Rights and Freedoms. As far as the latter is concerned, my question is very simple.

    Should this bill be deemed votable? The subcommittee has decided that the bill violates the Canadian Charter of Rights and Freedoms which guarantees freedom of action. The provisions of the bill are considered to be in violation of the Charter. In tabling your bill, you argue that the notwithstanding clause could be invoked since it is part of the Constitution. I'm interesting in getting your opinion.

    Are you in favour of invoking the notwithstanding clause to counter decisions favouring minority groups that flow from the Canadian Charter of Rights and Freedoms?

  (1230)  

[English]

    Mr. Jim Pankiw: Once again we're getting way off track here. The purpose of this committee is to re-examine the original decision of the subcommittee that this bill in some way violates the Constitution. I'm saying it clearly does not, and therefore it should be votable.

[Translation]

    Mr. Yvon Godin: My question, Mr. Chairman, is as follows: are you proposing that the notwithstanding clause be invoked in this instance to counter the Canadian Charter of Rights and Freedoms?

[English]

    The Chair: Let Jim reply to this thing now, okay?

    Go ahead, Jim.

    Mr. Jim Pankiw: No. The bill proposes that the notwithstanding clause be used to protect the legal definition of marriage only.

    If you want to get into debate on this, section 15 does list the areas of equality that are protected in the Constitution—race, national or ethnic origin, age—but sexual orientation isn't in it. So even on that count it doesn't violate the Constitution.

    At any rate, I think we really should focus on the bottom line: this bill very simply contemplates invoking section 33 of the Constitution; therefore it is constitutional and should be votable.

    I would urge members to not allow their personal views or opinion of this bill to cloud your decision-making on something that should be really a very clear, precise question: does this bill violate the Constitution? It does not, and should therefore be votable. All the other points that are being made can very legitimately be made in debate in the House, and your vote can reflect your opinion. But it would be a violation of my privilege as an MP to make this not votable when there are no legitimate grounds for doing so.

    The Chair: I have Chuck Strahl, then Benoît Sauvageau. Then it's my intention to give Jim time, if he wishes, to wrap up and then to close this down, unless I see otherwise.

    Chuck Strahl.

    Mr. Chuck Strahl: I think it's important to note that no individual MP can use the notwithstanding clause, but Parliament can. Jim can propose it, but unless Parliament passes it, it's not going to happen. And it's not going to happen very easily, folks; we know that.

[Translation]

    Mr. Yvon Godin: On a point of order, Mr. Chairman.

[English]

    The Chair: Yes, state your point of order.

[Translation]

    Mr. Yvon Godin: I didn't think we were going to have a debate. I thought we were going to hear from witnesses and ask questions. We shouldn't be squaring off against each other or trying to find out who is right or who is wrong.

[English]

    Mr. Chuck Strahl: I'm not talking to anyone. I might be—

    The Chair: Just a minute, Chuck; it was a point of order.

    We're dealing with one of our colleagues here. I've kept the order and I've kept an eye on the time and so on, but I think we should give him the opportunity to debate a little bit, and that's what I'm trying to do here.

    Chuck.

    Mr. Chuck Strahl: I'm sorry. I'm not being accusatory; I'm just speaking in general terms. Whatever an MP proposes in the House of Commons—in a private member's bill, or in a motion, or when they stand up and say whatever they want—he or she has no power to enact it unless Parliament agrees. An MP can say the most absurd and incredible things. It happens from time to time—I've been guilty of it myself—but Parliament will decide.

    It seems to me that if someone, for example, were to propose, just to use another example, that they think we should use the notwithstanding clause to overturn the Singh decision, because notwithstanding the court decision on it they think it's impossible to administer a proper immigration system because of it, you could say, well, that's a good debate. It seems to me it's a good debate. Parliament will do what it will with that debate, but the debate is a solid one; it's worth while having the debate.

    At the end of the day—and it's not really even at the end of the day, because it's only at the end of a couple of hours—Parliament will render its decision and we'll move on. I just think Jim's proposal here will be dealt with that way.

    Mr. Marcel Proulx (Hull—Aylmer, Lib.): I have a point of order.

    The Chair: What is your point of order?

    Mr. Marcel Proulx: I apologize, but I want to come back to Mr. Godin's point. We are now having a discussion we should be having in camera.

    The Chair: Okay, and I ruled on it once before, so wind it up, Chuck, will you?

    Mr. Chuck Strahl: I would just conclude by saying it's interesting that this issue was one of the questions Maria McClintock asked at the leadership debate for the Conservative Party leadership the other day on national television. She asked the leadership contestant hopefuls whether they would use the notwithstanding clause to override the court decision—or to maintain the current definition of marriage or to prohibit same-sex marriage; I forget the exact words. She asked that. This is part of public debate; it's not way out there. This is something people want to know. And whether they want to know it or not, I still think it's Jim's privilege to present it.

    We could have a great debate in the House, by the sounds of it, and I think we should have it there.

  (1235)  

    The Chair: Jim, do you want to comment on that?

    Mr. Jim Pankiw: I appreciate your comments, Chuck, but I just want to stress it gets down to this. Whether you think it's a good debate or it's in the public domain isn't relevant. I have a right to bring a bill before the House of Commons. There's a list of criteria on which the subcommittee can deem a bill to be non-votable, none of which applies to my bill. Regardless of what you think of it, it is constitutional and should therefore be votable.

    The Chair: Thank you.

    Benoît. Then we're going to finish, and I will go back to Jim. Go ahead.

[Translation]

    Mr. Benoît Sauvageau: I have a question concerning the criteria used to decide which private members' items will be deemed non-votable. The second one pertains to the Canadian Charter of Rights and Freedoms.

    I have a question for Mr. Pankiw, who referred to the Constitution. Is it in fact true that the Canadian Charter of Rights and Freedoms prohibits discrimination on the grounds of sexual orientation?

[English]

    Mr. Jim Pankiw: That is not the case. Sexual orientation is not—

[Translation]

    Mr. Benoît Sauvageau: That's not the case. I'm not talking about the section you mentioned. I'm talking about the Canadian Charter of Rights and Freedoms.

[English]

    Mr. Jim Pankiw: Section 15.... Sexual orientation is not included there, no.

[Translation]

    Mr. Benoît Sauvageau: You maintain then that the Canadian Charter of Rights and Freedoms makes no reference to discrimination on the grounds of sexual orientation. Is that what you're saying?

[English]

    Mr. Jim Pankiw: That's correct, yes.

[Translation]

    Mr. Benoît Sauvageau: That's what you're saying. Thank you.

[English]

    Mr. Jim Pankiw: I have it right here.

    The Chair: Jim, would you like to wrap up?

    Mr. Jim Pankiw: I think I'd just be repeating myself. Again I would urge members of this committee to keep their decision here very focused on what's pertinent. What's pertinent is whether this bill is constitutional, yes or no. No other points, really, are relevant.

    It is constitutional, because the whole point of the bill is to use the Constitution.

    The Chair: Thank you very much. We appreciate your coming here. We appreciate your patience.

    We're going to move back in camera. The members of staff who normally stay are more than welcome, but everyone else should leave, please, including Tim.

    [Proceedings continue in camera]

  (1237)  

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  (1252)  

    [Public proceedings resume]

    The Chair: The vote is on the motion that the first report of the subcommittee on private members' business be concurred in.

    (Motion agreed to)

    The Chair: Colleagues, I thank you for that.

    I now repeat that when we come back on Tuesday, March 9, at 3:30, because of the visit of Kofi Annan, we will resume with Bill C-3.

    What I did not mention—and this is important—is that on Wednesday, March 10, from 5:30 to 7:30, is the round table on the prior review of parliamentary appointments that we had suggested. On Thursday, we resume consideration of the action plan.

    Thank you, colleagues.

    The meeting is adjourned at the call of the chair.