Parliamentary Privilege / Rights of the House

Contempt of the House: Minister of Justice alleged to have not reviewed legislation for conformity with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights

March 27, 2013

Debates, pp. 15292–3

On March 6, 2013, Pat Martin (Winnipeg Centre) rose on a question of privilege regarding the Minister of Justice’s statutory obligation to examine Government bills and regulations to determine whether they are inconsistent with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. Based on allegations made by a senior official of the Department of Justice in a claim before the courts, Mr. Martin stated that while he had no evidence the Minister had deliberately provided inaccurate information to the House, he argued that Members could not have confidence that legislation presented to them had been adequately reviewed by the Government for conformity with the Charter and Bill of Rights. If the allegations are found to be true, he argued, this effectively meant that the Minister was misleading the House and impeding Members in their consideration of Government bills, constituting a contempt of the House. Peter Van Loan (Leader of the Government in the House of Commons) responded that the issue was not raised in a timely fashion, that the sub judice convention should be considered, and that the question was actually a question of law and, therefore, not for the Speaker to decide. Several other Members made comments, and the Speaker took the matter under advisement.^[1] On March 18, 2013, Rob Nicholson (Minister of Justice and Attorney General of Canada) added that there was no evidence that the House had been deliberately misled nor that he had ever introduced legislation counter to the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights. Other Members participated in the discussion and the Speaker again took the matter under advisement.^[2]

Resolution

On March 27, 2013, the Speaker delivered his ruling. He stated that he was satisfied that the Member had raised the question at the earliest opportunity and that, while the sub judice convention did not prevent debate on the matter, he believed that the House should be cautious in taking steps that might result in a process that would run parallel to court proceedings. On the central issue of whether the government was meeting its statutory obligations with respect to the constitutional compliance of legislation, he indicated that it is not within the Speaker’s purview to interpret matters of a constitutional or legal nature. Therefore, he could not find a prima facie case of privilege.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on March 6, 2013 by the Member for Winnipeg Centre regarding the Minister of Justice’s statutory obligation to examine Government bills and regulations to determine whether they are inconsistent with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.

I would like to thank the hon. Member for Winnipeg Centre for having raised this matter, as well as the Minister of Justice and Attorney General of Canada, the hon. Leader of the Government in the House of Commons, the hon. House Leader of the Official Opposition and the Members for Saanich—Gulf Islands, Winnipeg Centre, Mount Royal and Gatineau for their comments.

In raising this question of privilege, the Member for Winnipeg Centre explained that, pursuant to certain statutory requirements, the Minister of Justice is required to examine all Government bills and regulations in order to determine whether they are actually inconsistent with the Charter of Rights and Freedoms and the Bill of Rights. He cited section 3 of the Canadian Bill of Rights, which states:

...the Minister of Justice shall…examine every regulation…and every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons.

The hon. Member then claimed that if the allegations contained in an action filed in the Federal Court by Mr. Edgar Schmidt, a Department of Justice official, are proven to be true, the Minister has flouted these statutory requirements. He contends that the Minister manages the risk of inconsistency in a cavalier fashion, and he argues that by allowing legislation to be introduced in the House that has a possibility of being inconsistent with the Charter of Rights and Freedoms or the Bill of Rights, the Minister misleads Parliament, thus leaving Members with no reliable assurance that proposed legislation is not in violation of the charter and the Bill of Rights.

The Member asked that the Chair find that the Minister’s approach had thus effectively impeded Members in performing their duty to exercise due diligence in considering Government bills. I note that to do so, the Chair would first need to establish whether the Minister of Justice had acted in accordance with his statutory obligations.

That said, while the Member for Winnipeg Centre went on to admit that there exists no evidence that the Minister of Justice deliberately, or even implicitly, gave the House inaccurate information, he claimed that there are serious deficiencies in the examination and vetting of draft Government legislation by the Minister of Justice as evidenced by a number of legal challenges to legislation believed to be inconsistent with the Charter and the Bill of Rights.

The Member contended that even though the matter is before the courts, the sub judice convention does not prevent the House from considering this question of privilege, as it is in no way dependent on the findings of the court, nor will the debate on the question of privilege interfere with the court in carrying out its duties. Acknowledging that questions of privilege must be raised at the earliest opportunity, the Member for Winnipeg Centre assured the House that he brought this matter to the attention of the House as quickly as he could bring the research together, given the complexity of this question of privilege.

In response, the Minister of Justice insisted that the matter was not raised at the first opportunity since the court action in question was filed on December 14, 2012, leaving the Member many opportunities to have raised this matter in the intervening months—as many other Members had done in both committees and in the House. Second, the Minister argued that the Chair has no jurisdiction over questions of law, which are for the courts alone to decide. Third, the Minister suggested that the sub judice convention dictates that since the matter is before the courts, the House should allow the courts to resolve the matter before undertaking any debate on the matter.

The Minister of Justice noted that the Member for Winnipeg Centre had failed to provide any evidence that the House and its Members were in any way impeded in carrying out their duties. The Minister stated categorically that “this Government has never introduced any legislation that I believe was inconsistent with the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights.”

He went on to remind the House that the Member for Winnipeg Centre had acknowledged that he had “no evidence” to suggest that the Minister provided deliberately inaccurate information to the House about Government bills.

The Chair has listened attentively to Members’ interventions on this matter and it seems to me that this question of privilege involves three key points: namely, the timeliness of the question of privilege; the sub judice convention; and the Speaker’s role in determining matters of law.

Regarding timeliness, both the Member for Winnipeg Centre and the Opposition House Leader explained that it was only after some time-consuming initial research that the Member felt compelled to raise the matter in the form of a question of privilege.

Furthermore, I was interested in the statement of the Member for Gatineau, who noted that this question of privilege was raised only after efforts to consider the matter in committee had failed.

While I might come to a different conclusion if the question at issue related directly to a specific incident in the House with regard to this particular question of privilege, I am satisfied with the explanations offered and will not rule this question out of order purely on the basis of timeliness.

The suggestion has also been made that the sub judice convention, in and of itself, prevents the consideration of this question of privilege at this time.

House of Commons Procedure and Practice, Second Edition, at page 627 states:

The interpretation of this convention is left to the Speaker since no “rule” exists to prevent Parliament from discussing a matter which is sub judice.

As Speaker, I must endeavour to find a balance between the right of the House to debate a matter and the effect that this debate might have. This is particularly important given that the purpose of the sub judice convention is to ensure that judicial decisions can be made free of undue influence. While O’Brien and Bosc states on page 628, in reference to a March 22, 1983, ruling by Speaker Sauvé,

…the sub judice convention has never stood in the way of the House considering a prima facie matter of privilege vital to the public interest or to the effective operation of the House and its Members.

it also speaks of another aspect of this convention that is too critical to ignore when at page 100 it states:

The sub judice convention is important in the conduct of business in the House. It protects the rights of interested parties before the courts, and preserves and maintains the separation and mutual respect between the legislature and the judiciary. The convention ensures that a balance is created between the need for a separate, impartial judiciary and free speech.

Strictly speaking, in the case before us, while the sub judice convention does not prevent debate on the matter, the fact remains that the heart of this question of privilege is still before the courts, which have yet to make a finding. I believe that it would be prudent for the House to use caution in taking steps that could result in an investigatory process that would, in many ways, run parallel to the court proceedings, particularly given that the Minister of Justice and Attorney General of Canada is already a party to the court proceedings and would be a central figure in any consideration the House might give this matter.

Arguments over the timeliness of the intervention of the Member for Winnipeg Centre and the extent of the restraints we might choose to impose on ourselves because of the sub judice convention are ancillary matters. It seems to me that the central element of this question of privilege asks the Speaker to determine if the Government is meeting its obligations under the law, as set out in section 3 of the Canadian Bill of Rights and section 4.1 of the Department of Justice Act and their relevant regulations. The Member for Mount Royal distilled this issue down to its fundamental element in stating:

What is rightly before this House, raised as a question of privilege, is whether [the] Minister has satisfied himself of the constitutional compliance of legislation.

This is the very matter the Member for Winnipeg Centre has placed before me for my consideration in raising this question of privilege.

Numerous previous Speakers’ decisions point to a very clear practice for the Chair to follow in instances such as this. In a ruling given by Speaker Fraser, on April 9, 1991, which can be found at pages 19233 and 19234 of the House of Commons Debates, he said:

The Speaker has no role in interpreting matters of either a constitutional or legal nature.

In a ruling given by Speaker Jerome, on June 19, 1978, which can be found at page 6525 of the House of Commons Debates, he addressed a complaint that the Government of the day may have acted illegally. He stated:

The hon. Member also alleges the Government acted illegally in the manner in which postal rates have been increased. Hon. Members will be aware that I have a duty to decide questions of order, not of law, and furthermore, I understand that this issue is now before the courts. In my opinion, therefore, it is an issue to be settled by the courts, and the Chair should not intervene.

House of Commons Procedure and Practice, Second Edition, at page 261, also provides valuable insight. It states:

...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.

In a ruling on a similar matter, Speaker Milliken, on April 12, 2005, at page 4953 of the Debates, did articulate the limited kinds of legal or constitutional matters the Chair could rule on.

He stated at that time:

What they may decide is whether the terms of a bill are in compliance with a prior resolution of this House, a ways and means motion, for example, or a royal recommendation in respect of a money bill, but beyond that, Speakers do not intervene in respect of the constitutionality or otherwise of provisions in the bills introduced in this House.

More recently, I have also been called upon to make rulings which effectively asked me to interpret the law. On October 24, 2011, at page 2405 of the Debates, I stated:

…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.

Given the Chair’s limited scope to consider legal matters, and based solely on what is within my purview to consider, I cannot comment on the adequacy of the approach taken by the Government to fulfill its statutory obligations. I can therefore find no evidence that the Member for Winnipeg Centre’s privileges have been breached and cannot see how this rises to a matter of contempt. Accordingly, I cannot find a prima facie question of privilege.

I thank all Members for their attention.