Parliamentary Privilege / Rights of the House

Contempt of the House: tabling of Government bill in contravention of an existing statute

October 24, 2011

Debates, pp. 2404–5

On October 18, 2011, Wayne Easter (Malpeque) rose on a question of privilege in relation to Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts. Mr. Easter claimed that, as the Government had neglected to fulfill the obligations set out in section 47.1 of the Canadian Wheat Board Act, it had violated the law and infringed the privileges of all Members in tabling Bill C-18. Peter Van Loan (Leader of the Government in the House of Commons) contended that legal or constitutional questions were beyond the jurisdiction of the Speaker and that the power of Parliament to pass statutes, as well as to amend existing ones, is indisputable. Other Members made comments, and the Speaker took the matter under advisement. On October 19, 2011, Mr. Easter and the Government House Leader made additional remarks, and the Speaker again took the question under advisement.^[1]

Resolution

On October 24, 2011, the Speaker delivered his ruling. He upheld Parliament’s continued right to legislate and confirmed that it is not the role of the Chair to interpret statutes. Finding no procedural impediment to the manner in which the Government proceeded, the Speaker ruled that there was no prima facie case of privilege.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on October 18, 2011, by the Member for Malpeque concerning the admissibility of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts.

I would like to thank the Member for having raised this matter, as well as the Leader of the Government in the House of Commons, the Minister of State and Chief Government Whip, the Parliamentary Secretary to the Leader of the Government in the House, and the Members for Guelph and Winnipeg North for their interventions.

In raising his question of privilege, the Member for Malpeque stated that the Government had violated a provision of an existing statute by having introduced Bill C-18 without having previously allowed grain producers to vote on any changes to the structure and mandate of the Canadian Wheat Board as is required in section 47.1 of the existing Canadian Wheat Board Act.

In doing so, he claimed:

...my privileges have been violated due to the expectation that I will be required to engage in and cast a vote upon legislation that begins from the premise of a deliberate and overt violation of statutes passed by the House with the expectation that those provisions would be respected most of all by Members of the House.

The Member for Malpeque explained that he was not asking the Speaker to rule on the legality of section 47.1 of the Canadian Wheat Board Act but rather whether his privileges were violated as a result of the Government introducing legislation he claimed contravened an existing statute passed by Parliament.

The Government House Leader countered that the Chair was in fact being asked to make a ruling on a matter of law by interpreting provisions of a statute, despite the well-established practice that it is not for the Chair to rule on legal or constitutional matters.

He also challenged the Member for Malpeque’s contention that section 47.1 of the Canadian Wheat Board Act rendered the consideration of Bill C-18 unlawful, arguing that such an interpretation was tantamount to asserting that the enactment of a statute could fetter the House’s consideration of future legislation.

He suggested it:

...would result in a delegation of the ability of this Parliament to make decisions to individuals outside of...Parliament, effectively giving them the power to legislate the law of this land rather than Parliament….

He emphasized that Parliament is free to consider whatever legislation it sees fit, including legislation to amend existing statutes.

In addressing this very point, Peter Hogg’s Constitutional Law of Canada, Fifth Edition, Volume 1, on page 352, notes:

Not only may the Parliament or a Legislature, acting within its allotted sphere of competence, make any law it chooses, it may repeal any of its earlier laws. Even if the Parliament or Legislature purported to provide that a particular law was not to be repealed or altered, this provision would not be effective to prevent a future Parliament or Legislature from repealing or amending the “protected” law.

This citation rightfully underscores Parliament’s continued right to legislate.

The Government House Leader also spoke to the role of the Speaker in preparing rulings, and quoted from House of Commons Procedure and Practice, Second Edition, at page 261. For the benefit of the House, I would like to cite the full passage, which reads:

Finally, while Speakers must take the Constitution and statutes into account when preparing a ruling, numerous Speakers have explained that it is not up to the Speaker to rule on the “constitutionality” or “legality” of measures before the House.

The footnote to this citation, footnote 75 on page 261, refers to an April 9, 1991, ruling by Speaker Fraser at pages 19233 and 19234 of Debates, in which the Speaker ruled that the Chair must avoid interpreting, even indirectly, the Constitution, or a statute. This is a well-entrenched practice that remains in force today and to which I alluded when this matter was first raised on October 18, 2011.

Accordingly, it is important to delineate clearly between interpreting legal provisions of statutes—which is not within the purview of the Chair—and ensuring the soundness of the procedures and practices of the House when considering legislation—which, of course, is the role of the Chair.

The hon. Member for Malpeque has offered the House his interpretation of a law, in this case section 47.1 of the Canadian Wheat Board Act. He has concluded that the Government has not respected its provisions and is therefore precluded from proceeding with Bill C-18. For my part, like my predecessors, when faced with similar situations, I must decline to follow the hon. Member’s example. It is not for the Chair to interpret the meaning of section 47.1 of the Canadian Wheat Board Act. I have confined my review of the matter to its purely procedural aspects.

Having carefully reviewed the submissions on this matter, I must conclude that, while the Member for Malpeque may feel aggrieved by the Government’s approach and by its introduction of Bill C-18, there has been no evidence offered that the Government’s actions in this case have in any way undermined the ability of the Member to fulfill his parliamentary functions.

Therefore, the Chair cannot find that either the introduction of Bill C-18 or the fact that Members are being asked to consider the bill constitutes a prima facie question of privilege.

I thank all Members for their attention.

Postscript

On December 8, 2011, Frank Valeriote (Guelph) rose on a question of privilege to bring to the Speaker’s attention a decision rendered the previous day by the Federal Court.^[2] Arguing that the Court’s findings on the actions of the Government confirmed his argument that the Government had violated Members’ privileges in its management of the proceedings on Bill C-18, Mr. Valeriote asked that the Speaker reconsider his ruling of October 18, 2011. The Government House Leader argued that the Court’s decision had no bearing on Parliament’s ability to legislate and that, as the House was no longer seized with the Bill, it had no jurisdiction to amend it.^[3] On January 31, 2012, the Speaker delivered his ruling indicating that the fundamental issue remained unaltered as the Speaker’s powers are limited to ruling on matters of parliamentary procedure and not on matters of law, and he concluded that there was no prima facie question of privilege.^[4]