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Subcommittee on Private Members' Business of the Standing Committee on Procedure and House Affairs
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EVIDENCE
Tuesday, April 21, 2015
[Recorded by Electronic Apparatus]
[English]
The meeting will come to order.
This is meeting number eight of the Subcommittee on Private Members' Business in regard to votability. Mr. Valeriote is not here, but we do have quorum so we will begin. I believe Mr. Butt wanted to make—
Mr. Chair, at the outset, I want to indicate that one of items on today's agenda is my motion M-587. Therefore, when that comes up, I will not be participating in the discussion or voting on that item.
In regard to M-585, this motion from Madam Groguhé calls on the government to redesign its economic policy to help owners of small businesses in the manufacturing sector create new jobs, given the unemployment rates since the 2008 recession. That's a summary of the motion.
To apply the four criteria, this motion does not concern questions that are outside of federal jurisdiction, and in its focus does not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms. Also, this motion does not concern questions that are substantially the same as ones already voted on by the House in the current session or preceding it in the order of precedence. Last, this motion does not concern questions that are currently on the order paper or notice paper as items of government business.
As an aside, there are some news articles and whatnot commenting on the bill, if anybody wants to look into that.
In terms of the four criteria, the bill does not concern questions that are outside the federal jurisdiction, and it does not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms. The bill does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament or preceding it in the order of precedence. There is another bill by Randall Garrison that also deals with critical infrastructures, but it is not in the order of precedence and has a totally different focus, so this issue is not raised at all. Finally, this bill does not concern questions that are currently on the order paper or notice paper as items of government business.
I do have a couple of questions, if I may.
As you mentioned in your introduction, there has been some controversy about this bill. I am concerned about the second criterion that it must not clearly violate the Constitution Acts. I'd like to get a little more elaboration on that, on where that line is, because Minister MacKay himself has said outside of question period that when protests occur in front of some infrastructures, such as the pipelines that might be going through Vancouver, protesters could be held criminally responsible.
I'm also worried about the way this bill is written. We're talking about how anybody who “obstructs” any “critical infrastructure” could be held criminally liable. It's clearly stated that “critical infrastructure” includes any “facility, network, service or asset” that provides a public service and that “the disruption... could produce serious adverse economic effects”.
This strikes me as being very broad, especially since we already have section 430 in the Criminal Code that deals with mischief and has much more clearly defined parameters. This seems to be creating a very wide parameter. To me, this is clearly an affront to some fundamental freedoms as defined by the charter. We have the right of peaceful assembly and we have the right of association. A union who is protesting, for example, the postal workers protesting in front of a post office, could be considered criminally responsible for obstructing an asset that could produce a serious adverse economic effect.
To me, this bill really goes quite far. I'd like to go back to criterion number two. Could you elaborate?
In terms of the second criterion, the way that it's framed in terms of the evaluation at this stage, which is determining the votability or the non-votability of items, it's not the same as doing a charter analysis of likelihood that it's compliant, or likelihood that it might be challenged in that sense. It's whether there is a clear violation. An example of a clear violation would be something specifying that no one under five foot five may vote in a federal election from here on in. That's a clear violation of a voting right. There wouldn't be any question of being able to amend that at committee. You wouldn't even need to do a section one analysis of the objective of the legislation vis-à-vis its aims.
At this stage the concerns that you raised are probably important ones to be raised in the debate on the bill in the House and at committee, should it go that route.
However, the issues that you raised would require at this stage an analysis of the charter rights that are implicated and an analysis of whether they're saved by section one. The need for that analysis almost shows that it's not so clear, even though there might be questions, that it would be deemed non-votable at this stage. Of course, it's the committee's decision how to vote on it, but that is the understanding I've taken from colleagues on the second criterion.
It's not for us to debate the bill.
I think when the analyst has given us her opinion, our decision is only to send it on to committee for that debate.
It's an interesting analysis. I want to point out that Criminal Code amendments are done through government bills and would benefit from the vetting process to see if they're constitutional, whereas the private member's bills aren't. That's one of the problems.
We are charged with criterion number two. I do want to evaluate it on that level.
I do have a problem with this bill. In my opinion it does clearly violate the Constitution Acts. You gave the example of someone who is five foot five. I'm not sure what criteria one could use to discriminate on the basis of height, but I didn't see that in that charter anywhere. I'm not sure if that's a criterion, but freedom of association and freedom of peaceful assembly certainly are in the charter. To me that's even a greater violation than the one you suggested.
The questions you raise go to the language of the criterion of whether there is a clear violation of the Constitution Acts, including the charter, or whether there is a possibility or likelihood of a violation. In terms of the language adopted here, and in previous decisions made and analysis done at this subcommittee, the determination of clear violation really has been such a standard. It has to be so clear that it's not something that could be read down, amended, or qualified, whether you have to do that full charter analysis, or the section one analysis.
By determining that the bill does not clearly violate the Constitution Acts or the charter, it's not saying that it does not raise constitutional issues or charter issues. It does not say there might be other problems with the bill or things that raise concerns. The committee is not saying this bill should be passed; it's just saying that the bill is not disqualified because it has passed this minimum threshold. Should the committee determine down the road that it would like to alter that threshold, that's a separate question. In terms of the threshold established at this stage of whether it clearly violate the Constitution Acts, including the charter, the analysis at this point suggests that there would need to be further analysis, which almost answers the question.
I agree. I think there needs to be further analysis.
If we were to vote it down at this level and if I understand the process, there would be the possibility of an appeal to the committee on procedure and House affairs—the full committee instead of this subcommittee. At that point I think the sponsor of the bill could then present their arguments defending the constitutionality of the bill.
I don't think this committee is properly equipped to evaluate this fully. Were there to be preparation at the next committee level during an appeal, I think the procedure and House affairs committee could then air this out, find out whether there are grounds to move it forward.
In my reading of this bill, when I see that the minister himself has said publicly that people who have protested against the Kinder Morgan pipeline in Vancouver could be held criminally responsible, I think the minister himself is saying there seems to be a limit on the freedom of association and the freedom of peaceful assembly.
I need to see a better airing of this argument. I personally don't believe that this passes test number two, that it clearly doesn't violate the Constitution Acts. In my opinion, it clearly will violate them.
The question for this committee is to determine whether in its opinion the threshold has been met or whether that is a question best determined when the bill goes before the House.
We are charged with this debate here, so we must answer to our responsibility. My responsibility isn't to simply ignore the criteria in front of me; my responsibility is to respect the criteria. My responsibility is not to say, “Oh well, it will go to debate in committee if it is adopted by the House of Commons”. I have no idea what's going to happen in the House of Commons.
My question here is whether it meets the four criteria. That's the only thing I'm charged with, and it's the only thing I'm looking at. The future process is of no concern to me, other than that if it were to be voted down, then I think criteria number two could be more fully debated during an appeal at the committee on procedure and House affairs.
I'm conflicted about the issue. I am aware that the Criminal Code uses the words “obstruct”, “interrupt”, or “interfere” in other sections, for instance, obstruction of justice and interference, which is not unconstitutional. Because I'm aware that these words are used elsewhere, I'm not convinced that this likely violates the Charter of Rights and Freedoms. I get how perilously close it appears to be, but I'm not completely convinced that it actually does.
Is there a process, other than the appeal process that Mr. Toone speaks of to the procedures and House affairs committee, should it not pass here? Is there a way for you to come back with a fuller examination of this, let's say next week, so that we don't automatically turn it down? Can we maybe meet again next week and have you give us a further opinion, or not?
That is to be undertaken according to the second criterion, which is that the bill does not “clearly violate” the—
I haven't yet, but I think we're talking about two different thresholds here. The threshold in number two is “clearly violate”, and it's the analyst's opinion—the expert's opinion—that it does not. I'm not a lawyer. I don't think I'm in a position to suggest that the recommendation from the analyst is incorrect.
I think what Mr. Toone has been saying is that it “may violate” the charter, not “clearly violate” the charter.
I'm not going to put words in your mouth, Philip.
In your argument, which has some merit potentially, I'm not sure it got to the threshold of “clearly” violates, which is what we're being asked to vet on this. That would be my two cents' worth.
I want to point out when it comes to other elements in the Criminal Code, when it speaks to “obstruct”, in this case when you look at subsection 5, where it says “could produce serious adverse economic effects”, this “could” is very large. It could encompass, for example, the fact that I'm standing in front of a post office and am stopping someone from being able to get into the post office immediately, and not five minutes from now, and preventing them from picking up their cheque from their post office box. This strikes me as a very large and very broad opening. I don't think we see that opening anywhere else in the Criminal Code. I think the Criminal Code is usually a lot clearer and more stringent because we are talking about criminal, penal consequences, not just civil liability.
I'll be candid: I don't like the bill, and I think there is plenty of provision within the Criminal Code right now to deal with these very things.
Had this bill said it's something that a judge could take into consideration when imposing a sentence, that it was the interruption, interference, or obstruction of critical infrastructure, then I would understand that. This goes much further. I wouldn't support this bill, but notwithstanding that, I don't know that this is really for the committee to step in and apply that degree of scrutiny when none of us are lawyers versed in constitutionality, when I think a precedent has already been set at this committee, long before we got here, that prescribes—and I think Mr. Butt said it correctly—there's a difference between “clearly” and “might” or “may”. If I'm to go on what I understand to be the precedent of this committee, Phil, I think this has got to get to a level where the proponent of the bill will have to justify whether or not this meets the constitutionality test at committee, but not at this level.
Otherwise, we'd be preventing a lot of bills from going before the House of Commons and I don't think it's this committee's responsibility to apply that degree of scrutiny. That's why it's a first test, clearly, as opposed to likely or possibly. So as reluctant as I might be about the bill itself, I don't think I could say that it ought not to go forward.
And I think on that basis we've had lots of discussion. So ordinarily we do it without a vote, but I think in this case we'll call for a vote.
That's the first time I've heard Canada Post referred to as critical infrastructure.
You got away with it.
I look at these, and we don't deal with royal recommendations, but how many of these go through here that are so clearly in need of a royal recommendation?
No, and it's true. It's a committee policy consideration to determine what threshold to let things through, to enable private members to be able to present bills.
This is on ferry services to Prince Edward Island by Mr. MacAulay.
This motion essentially calls on the government to ensure stable and adequate funding for the ferry service between Wood Islands, P.E.I., and Caribou, Nova Scotia, which is interprovincial travel, so that's the federal element.
This motion does not concern questions that are outside federal jurisdiction. This motion does not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms. This motion does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament or preceding it in the order of precedence, and this motion does not concern questions that are currently on the order paper or notice paper as items of government business.
This is from Dr. Bennett regarding missing and murdered aboriginal women. This motion calls on the government to address the issue of missing and murdered aboriginal women, and to call a public inquiry into the issue.
This motion does not concern questions that are outside of federal jurisdiction. This motion does not clearly violate the Constitution acts, including the Canadian Charter of Rights and Freedoms. This motion does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament or preceding it in the order of precedence.
There is another motion that we're considering today, Motion No. 444 by Ms. Ashton, which contains an element calling for an inquiry into missing and murdered aboriginal women. Her motion, though, is much broader in scope, calling for a national action plan to address violence against women, so they're able to proceed concurrently. Also, this one comes first.
Finally, this motion does not concern questions that are currently on the order paper and notice paper as items of government business.
I want to make it clear that if we were to adopt this or not vote against it, whatever it is that this committee does—
They're not exactly the same by any means. The other motion is quite a bit broader. In terms of what the committee has allowed to go forward before, they really, again, erred on the side of being permissive, to enable motions and bills to go forward unless they're really, substantially the same.
In this case they're quite different, except for the one element.
Can I just ask one quick question?
I know there has been at least one, maybe two opposition motions in the life of this Parliament that have called for this. They've been defeated, obviously by votes in the House. The fact that those motions have already been presented, the House has debated them, voted them down, has that had no effect on these because these are sponsored by private members? Is that the difference?
How many times is this Parliament going to be asked to vote on a public inquiry of this nature, when it's already been done a couple of times? Is that not an issue?
I have no objection to the motion. Let it go ahead. I'm trying to understand a little bit better, when this Parliament has already voted on this matter.
The criteria, as set out, is the same as ones already voted on by the House in the current session of Parliament. I went through the order paper and notice paper particularly for this session of Parliament, so the second session.
I can't speak to what happened in the first session because I haven't double-checked, but I went through the second session.
There aren't questions as items of government business. The government hasn't brought any such motions forward.
Bill C-661, An Act to amend the Income Tax Act (transfer of family farm or fishing corporation) is from Madame Raynault. As noted in the bill's summary:
This enactment amends the Income Tax Act in order to provide that, in the case of the shares of the capital stock of a family farm or fishing corporation, siblings are deemed not to be operating at arm's length and to be related.
It has to do with capital gains and things like that.
This bill does not concern questions that are outside of federal jurisdiction. We're dealing with the Income Tax Act. It does not clearly violate the Constitution acts, including the Canadian charter. This bill does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament or preceding it in the order of precedence. This bill does not concern questions that are currently on the order paper and notice paper as items of government business.
This is from Monsieur Giguère regarding small and medium-sized businesses. In summary, this motion calls on the government to reduce transaction fees charged to merchants and to allow merchants to disclose to the consumer the transaction costs relating to the payment method chosen at the point of sale in order to help make the cost of living more affordable for the middle class.
Just as a bit of background, section 91.15 of the Constitution Act of 1867 allocates to the federal Parliament legislative power in relation to banking, the incorporation of banks, and the issuance of paper money. This is the federal connection.
Of note is that in 2010, the government passed the Payment Card Networks Act, which gave the Minister of Finance the authority to regulate national payment card networks and the commercial practices of payment card network operators. As well, it gave the Financial Consumer Agency of Canada a mandate to supervise payment card network operators to determine their compliance with the act and its regulations. Section 6 of the act and section 7 of the act regarding regulations and enforcement conditions have never entered into force, so the subject matter doesn't overlap exactly.
As well—you might have noticed this in the news recently—in 2010 the government established a voluntary code of conduct with the credit and debit card industry in Canada, which was recently updated in April, this month, to include mobile payment. It added a provision that says mobile users must be given full control of the default settings on their virtual wallets. It also allows merchants to exit their contracts with credit card processors without penalty and gives new protection to retailers who decide to stop accepting mobile payments.
All of this is background to say that there are things out there on this issue. They're not exactly the same. They actually might even flow well together.
This motion does not concern issues that are outside of federal jurisdiction. It does not clearly violate the Constitution acts, including the Canadian charter. It does not concern questions that are substantially the same as ones already voted on by the House in the current session or preceding it in the order of precedence. It does not concern questions that are currently on the order paper or notice paper as items of government business.
Is everybody satisfied?
Some hon. members: Agreed.
The Chair: We'll go to M-587.
Mr. Butt has already recused himself from taking part in this discussion.
This motion calls on the House to reaffirm the recognition of various genocides—the Holocaust, the Armenian genocide, the Rwandan genocide, and the Ukrainian famine and genocide—and to recognize the month of April as genocide remembrance, condemnation, and prevention month.
I hope, Mr. Butt, that is a fair summary.
Thank you.
This does not concern questions that are outside of federal jurisdiction. It does not clearly violate the Constitution acts, including the charter. It does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament or preceding it in the order of precedence. It does not concern questions that are currently on the order paper or notice paper as items of government business.
The members are satisfied?
Some hon. members: Agreed.
The Chair: We'll keep going a little bit. Although the schedule said we would end at 1:30, we'll go a little longer and see if we can get through these.
Next is Motion No. 444.
Motion 444 is Ms. Ashton's motion on a national action plan to address violence against women. We spoke a little bit about it in relation to Dr. Bennett's motion. This motion calls on the government to create a national action plan to address violence against women, in collaboration with the provinces, territories, civil society, first nations, Métis and Inuit peoples and their representatives—just a broad consultation.
It does not concern questions that are outside the federal jurisdiction. It does not clearly violate the Constitution acts, including the Canadian charter. It does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament or preceding it in the order of precedence. Again, Dr. Bennett's motion is substantially narrower. Finally, this motion does not concern questions that are currently on the order paper or notice paper as items of government business.
This is Mr. Lunney's motion regarding a national strategy for innovation effectiveness and cost-effectiveness in sustainable health care. It calls on the government, in concert with provincial and territorial partners, to develop a national strategy for innovation effectiveness and cost-effectiveness in sustainable health care. Again, it is calling for consultation and a national strategy.
It does not concern questions that are outside of federal jurisdiction. It does not clearly violate the Constitution acts, including the Canadian charter. It does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament. It does not concern questions that are currently on the order paper or notice paper as items of government business.
This is An Act to amend the Heritage Lighthouse Protection Act (Sambro Island Lighthouse) by Ms. Leslie. This bill would amend the Heritage Lighthouse Protection Act to designate the Sambro Island lighthouse as a heritage lighthouse. This lighthouse was built during the Seven Years' War. It's old. Otherwise, this bill does not concern questions that are outside of federal jurisdiction, does not clearly violate the Constitution Acts, including the Canadian charter, it does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament, does not concern questions that are currently on the order paper or notice paper as items of government business, so this bill would specifically designate Sambro Island lighthouse as a heritage lighthouse for the purposes of the Heritage Lighthouse Protection Act.
This is from Mr. Zimmer. It's regarding firearms regulations. This motion calls on the House to take the position that no further steps need to be taken with regard to the protocol against the illicit manufacturing and trafficking of firearms, their parts and components and ammunition, as adopted by the United Nations' General Assembly resolution 55/255, of May 31, 2001.
Of note, Canada signed the protocol in 2002, but has not ratified it. The objective of the protocol, which is the first legally binding instrument on small arms that's been adopted at the global level, is to promote, facilitate, and strengthen cooperation among state parties to prevent, combat, and eradicate the illicit manufacture of and trafficking in firearms, their parts and components and ammunition, so states that ratify it have to implement a number of crime control measures and normative provisions and the like. As of now about 52 signatories and 113 parties have ratified the protocol, and again, Canada signed in 2002, but has not ratified it. Mr. Zimmer's motion suggests that Canada already exceeds all the standards listed in the resolution, and so on.
This motion does not concern questions that are outside federal jurisdiction, it does not clearly violate the Constitution Acts, including the Canadian Charter of Rights and Freedoms, it does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament or preceding it in the order of precedence, and finally, it does not concern questions that are currently on the order paper or notice paper as items of government business.
This is from Mr. Komarnicki regarding free votes: “That, in the opinion of the House, all Members of Parliament should be allowed to vote freely on all matters of conscience”.
This does not concerns questions that are outside federal jurisdiction, does not clearly violate the Constitution Acts, including the Canadian charter, does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament or preceding it in the order of precedence, and this motion does not concern questions that are currently on the order paper or notice paper as items of government business.
Finally, this is Mr. Lobb's motion regarding Alzheimer's disease and other dementias. This motion calls on the government to take various measures to prevent Alzheimer's disease and other dementias and to reduce the impact of dementia for those living with this disease, as well as for their families and caregivers, while respecting provincial and territorial jurisdiction.
It does not concern questions that are outside federal jurisdiction, and does not clearly violate the Constitution Acts, including the Canadian charter, and does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament or preceding it in the order of precedence. There are other motions and bills on the order paper regarding dementia, but nothing substantially the same or preceding it in the order of precedence, and finally, this motion does not concern questions that are currently on the order paper or notice paper as items of government business.
This is from Mr. Cash. It's An Act to establish a National Urban Workers Strategy. This bill proposes to develop a national urban workers strategy to address common challenges faced by workers in Canada and to resolve inequities in taxation and access to social support mechanisms, including employment insurance. It would require the Minister of Human Resources and Skills Development to strike a task force, which would include the Minister of National Revenue, the Minister of Labour, the President of the Treasury Board, and the Minister of Industry to develop a national urban workers strategy. They then must consult with provincial and territorial ministers and others who are involved, representatives from industry, labour, etc., and the task force must then report back to Parliament. There's a clear federal connection there. The bill does not concern questions that are in that sense outside federal jurisdiction. It's asking for a strategy. The bill does not clearly violate the Constitution Acts, including the Canadian charter, and it does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament or preceding it in the order of precedence, and finally, the bill does not concern questions that are currently on the order paper or notice paper as items of government business.
This is the last one.
This is an act to amend the Auditor General Act regarding government advertising. It would amend the Auditor General Act to provide for the appointment of an advertising commissioner—Ontario has a similar program—to assist the Auditor General in performing duties related to the use of public funds for any advertisement that a department proposes to post, publish, display, or broadcast, to ensure that the advertisement meets the requirements of the act, it establishes a process by which proposed messages are reviewed by the commissioner to determine whether they meet the requirements of the act and provides for reporting on the discharge of the duties under that act.
This bill does not concern questions that are outside of federal jurisdiction, including amendments to the Auditor General Act. This bill does not clearly violate the Constitution Acts, including the Canadian charter. It does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament or preceding it in the order of precedence, and this bill does not concern questions that are currently on the Order Paper or Notice Paper as items of government business.
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