Rule of Debate / Process of Debate

Appointment of an officer of Parliament: quality of consultations

May 29, 2017

Debates, pp. 11550–1

On May 17, 2017, Murray Rankin (Victoria) rose on a point of order regarding the government’s intent to appoint Madeleine Meilleur to the position of Commissioner of Official Languages. Mr. Rankin contended that section 49 of the Official Languages Act had not been complied with, because the leader of the New Democratic Party was merely sent a letter inviting him to respond to the nomination. While the leader in question did respond, he argued that the nature of the entire process had not allowed for the consultation precondition to be satisfied. Candice Bergen (Portage—Lisgar) said that the official opposition was disappointed with the scope of the consultation process as well. The Speaker took the matter under advisement.^[1]

The following day, Kevin Lamoureux (Parliamentary Secretary to the Leader of the Government in the House of Commons) said that the Prime Minister had indeed written to the leaders of the New Democratic Party and Conservative Party to ask their opinion, as required by the act, and that they had replied. He argued that the government had no obligation to follow the recommendations resulting from these consultations and that it was not the Chair’s place to rule on legal matters.^[2]

Resolution

On May 29, 2017, the Speaker delivered his ruling. He said that it was not up to the Chair to pass judgment on the adequacy of the consultations or on the legal nature of a given matter. He reminded the House that the Speaker’s role is strictly limited to determining the procedural admissibility of the motion for the appointment of the Commissioner of Official Languages. In the case at hand, he concluded that the procedural requirements had been met and that the process set out in section 111.1 of the Standing Orders could follow its course.

Decision of the Chair

The Speaker: I am now prepared to rule on the point of order raised on May 17, 2017, by the hon. member for Victoria concerning the consultations conducted in the nomination process for the next Commissioner of Official Languages.

I would like to thank the member for Victoria for having raised this matter, as well as the House leader of the official opposition and the Parliamentary Secretary to the Leader of the Government in the House of Commons for their interventions.

In raising the matter, the member for Victoria explained that when appointing a Commissioner of Official Languages, two statutory requirements must be satisfied. Both he and the House leader of the official opposition cited section 49 of the Official Languages Act, which stipulates that “The Governor in Council shall, by commission under the Great Seal, appoint a Commissioner of Official Languages for Canada after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons.”

Having acknowledged that the leader of the New Democratic Party did in fact receive a letter announcing the nomination and inviting a reply, the member argued that, nonetheless, Canadian courts have made it clear that the term “consultation”, when provided for in a statute, connotes more than mere notification. Having received no offer of further discussion from the government after the letter, he argued that this statutory precondition requiring consultation had not been met.

For his part, the Parliamentary Secretary to the Leader of the Government in the House of Commons contended that the requirement for consultation had indeed been met when the Prime Minister sent the letter on May 8, 2017, to the leaders of both recognized parties in the House, informing them of the nomination and requesting their views on the appointment. Confirming that both leaders had replied, he argued that the government was required only to consult, not abide by the recommendations of the opposition leaders.

Essentially, the Chair is being asked to judge if the actions taken by the government satisfy the requirement for consultation pursuant to the Official Languages Act. To do so would require the Chair to determine what constitutes “consultations” pursuant to that act. Past rulings set the parameters of the role of the Chair vis-à-vis consultations as they pertain to proceedings in the House. For instance, when asked to rule on the consultations required for the use of time allocation pursuant to Standing Order 78(3), Deputy Speaker Comartin explained on March 6, 2014, at page 3598 of the Debates that:

The nature of the consultation, the quality of the consultation, and the quantity of the consultation is not something that the Chair will involve himself in. That has been the tradition of this House for many years. What the Chair would have to do, in effect, is conduct an extensive investigative inquiry into the nature of the consultation. That is not our role, nor do the rules require it.

My predecessor added on June 12, 2014, at page 6717 of the Debates:

Therefore, it remains a steadfast practice that it is not the role of the Speaker to determine whether consultations have taken place or not.

The fact that, in this instance, the requirement for consultation is embedded in statute, rather than a rule of the House, does little to change the role of the Speaker in this respect. In fact, it adds an additional element in terms of the role of the Speaker: that of interpreting laws. On that front, there is a rich body of jurisprudence to confirm that the Speaker cannot adjudicate on the legality of matters, which, of course, would include whether or not specific provisions of a statute, such as the need for consultations, have been respected.

Faced with a situation regarding the statutory requirement for consultations on appointments made pursuant to the Canadian Security Intelligence Service Act, Speaker Fraser stated on December 7, 1989, at page 6586 of the Debates:

It is rather a question of law, and consequently I cannot offer my opinion as to the merits of the case.… The Chair is not in a position to decide upon questions of law. This is a matter best left to the courts.

Therefore, in this matter, the Chair cannot pass judgment as to the adequacy of the consultations, nor the fulfillment of the legal requirements. Instead, the role of the Chair is strictly limited to determining procedural admissibility of the motion for the nomination of the official languages commissioner, which was put on notice on May 17.

As Speaker, I am satisfied that the procedural requirements have been met. The motion is in order and the process prescribed in Standing Order 111.1 can follow its course.

I thank all hon. members for their attention.

Postscript

On May 31, 2017, several members rose on points of order at the end of Oral Questions to contest the answers given by Mélanie Joly (Minister of Canadian Heritage) regarding the appointment of Ms. Meilleur, which appeared to contradict Ms. Meilleur’s testimony before the Standing Committee on Official Languages. Erin O’Toole (Durham) asked the Chair to rule on whether the minister was in contempt of the House. The Speaker said that he had already ruled on that matter on May 29 but that he would come back to the House if necessary.^[3] Mr. O’Toole repeated his request on June 6, 2017.^[4] On November 24, 2017, Mr. O’Toole rose on a question of privilege regarding the same matter. He urged the Chair to deliver a ruling on the allegations raised on May 31 before the government proceeded with the appointment of the next Commissioner of Official Languages.^[5]

The Speaker delivered his ruling on December 5, 2017. He reminded members that he had already delivered a ruling on this issue on May 29, 2017, and that he had confirmed this decision on May 31, 2017. He added that he did not see a link between the point of order raised on May 31, 2017, and the ongoing process for appointing the Commissioner of Official Languages. Therefore, he considered the matter closed.^[6]