Parliamentary Privilege / Rights of the House

The House of Commons and Statutory Law: failure to table document as required by statute; role of Speaker

February 5, 1992

Debates, pp. 6425-7

On February 3, 1992, Mr. Derek Lee (Scarborough—Rouge River) rose on a question of privilege regarding “the failure of the Minister of Finance to lay before Parliament an order made pursuant to section 59(2) of the Customs Tariff.” In his presentation, copy of which was submitted to the Speaker and several other Members, Mr. Lee made the argument that the failure to abide by statutory tabling requirements involves a contempt of the House. This was so, he maintained, because the omission shows a lack of respect for Parliament, a persistent disregard for the law made by Parliament and could impede or obstruct Members in the discharge of their functions. Mr. Lee also observed that the matter of tabling or not was a question of fact to be determined—it was not a question of law. Furthermore, he noted that the House of Commons was the only appropriate forum which could fashion a remedy for a breach of “the right to have a copy of the order tabled in the House for the information of Members and for review by one of its Committees.” Other Members also intervened on the matter.^[1] The Speaker took the matter under advisement and returned to the House on February 5, 1992 to deliver the ruling which is reproduced in extenso below.

Decision of the Chair

The Speaker: I have a judgment to give on a question of privilege.

I would like to advise all honourable Members that I am now ready to rule on a question of privilege raised on Monday the 3rd of February by the honourable Member for Scarborough—Rouge River concerning the failure of the Minister of Finance (Hon. Michael Wilson) to table an Order in Council pursuant to section 59(5) of the Customs Tariff. The Chair has reviewed this serious issue and thanks the honourable Member for his succinct explanation of the case.

As I said during the statement, I would also like to thank the Parliamentary Secretary to Deputy Prime Minister and Minister of Finance (Mr. Pierre Vincent) and the honourable Member for Okanagan—Similkameen—Merritt for their interventions.

In his presentation, the honourable Member for Scarborough—Rouge River correctly pointed out that the Customs Tariff required that an Order in Council respecting the elimination of tariffs on certain plywood and related products under the free trade agreement be tabled in the House of Commons by the Minister of Finance on April 21, 1989 at the latest. This Order in Council was finally tabled on December 12, 1991, some 32 months later. The honourable Member did note, however, that this document was registered and published in the Canada Gazette of January 18, 1989, thus being placed in the public domain. He also stated that he was confident that the Minister’s failure to comply with the law was not intentional. The basis of his complaint was that the non-observance of a legal obligation established for the collective benefit of Members of the House amounts to a contempt of the House. Summarizing his argument, the honourable Member asked:

In short, does the omission to table a document legally required to be tabled, impede or obstruct the House and its members in the discharge of their functions or does it have the tendency to do so?

This is the question directed to the Chair.

The first point that the Chair wishes to highlight is that Speakers do not interpret or enforce matters of statutory law. There are many precedents to this effect.

On June 19, 1978, a question of privilege was raised respecting the late tabling of the Postmaster General’s annual report. In rejecting claims that the failure to respect the law constituted a breach of privilege, Speaker Jerome warned the House that the authority of the Chair did not extend to the determination of questions of law.^[2]

On two occasions—March 27, 1981 and February 10, 1983—Speaker Sauvé confirmed this principle in denying claims for the Chair to intervene in cases similar to the one raised by the honourable Member for Scarborough—Rouge River. In each of these situations, the Government had failed to live up to its statutory responsibility to table documents within a specific period of time. In response, Madam Speaker ruled that the Chair had neither the responsibility to interpret the law nor the authority to compel the Government to obey it.^[3]

These precedents served to highlight the restrictive nature of the Chair’s authority with respect to legal questions. However, while the matter raised on Monday may stem from a statutory requirement, the main thrust of the issue is not of a legal nature, but rather a procedural one. As the honourable Member for Scarborough—Rouge River so aptly stated, “This is a question of fact rather than a question of law”. In the manner of his presentation, the situation is different from earlier cases.

Another key element raised by the honourable Member relates to the failure of Government officials to act on demands for the tabling of this Order in Council. As he explained in his submission:

It is far too common for public servants to treat tabling requirements as a matter of little or no consequence with the result that over the years, Members of this House have repeatedly had to raise the issue of non-compliance with such requirements. The failure of the minister’s officials to advise him of his obligations is all the more inexcusable in this case in that the non-tabling of the order was drawn to the attention of an assistant deputy minister in the minister’s department in a letter from one of the counsel to the joint committee for the scrutiny of regulations dated May 8, 1989. Officials of the same department were reminded of this on subsequent occasions prior to December 12, 1991.

That is all a quote from the honourable Member, but I think it very clearly puts his case.

Therefore, in light of the notices given to the Department and its failure to comply with the letter of the law, the honourable Member claims that a contempt of the House has occurred and that this case should be dealt with as an offence against the authority and dignity of the House.

The Chair wishes to address some other remarks of the honourable Member for Scarborough—Rouge River. The Member stated that the purpose of tabling documents in the House “is to require documents to be laid before it in instances where it determines that the formal transmission of a document is necessary for Members of Parliament to properly discharge their responsibility of holding the executive accountable for its actions.” Tabling either by the “front door” or the “back door”, whether at the discretion of a minister or because of a legal requirement, is an action of the House and as such it is recorded in the Votes and Proceedings, the official record of the decisions of the House.

It is through tabling that Members are officially apprised of the existence of a document. Thus, when we include in legislation provisions for tabling, it is not done lightly but is done for a serious purpose.

The tabling of documents, as specified in our rules, is one of the procedures on which hinges the ability of Members to discharge their functions. In particular, with the reform of the rules in 1982, all reports, returns and papers to be laid before the House in accordance with the requirements of the statute are automatically referred to a standing committee pursuant to Standing Order 32(5). Thus, a failure to table any required document has the effect of impeding such committees from carrying out their mandate “to examine and enquire into all such matters as may be referred to them by the House” as stipulated by Standing Order 108(1).

Our capacity as elected representatives is to be ever vigilant and to protect the interests of our electors. The statutory laws which are in force, those which have been adopted by Parliament as a whole, are meant to be respected and serve no purpose if they are ignored. To quote the honourable Member for Scarborough—Rouge River, “a right which cannot be enforced is no right at all”. The fundamental question that remains to be answered is whether the Standing Committee on External Affairs and International Trade has been interfered with because it had to wait 32 months before being formally seized of the order in council.

The Chair has reflected seriously upon this matter. I have examined very carefully the circumstances surrounding this particular case and the argument presented by the honourable Member for Scarborough—Rouge River. I note that the honourable Member stated that the correspondence in question has been between counsel for the Standing Joint Committee for the Scrutiny of Regulations and officials from the Department of Finance. It appears that the matter relating to the punctual tabling of these types of Orders in Council lies more appropriately with the Committee, at least at the present time. If the Committee senses that a contempt has occurred, it is within its power to report this fact to the House. Once the House is in receipt of such a report, it can take appropriate action.

Until the Committee has reported on this matter, it could be argued that the House should not be dealing with the particular circumstances of this case. It may be that the Committee is in the process of taking some action or that it is contemplating doing so in the future.

In the view of the Chair, this would be an appropriate way of dealing with this matter for the moment, since the Committee has already initiated work in this area and may want to continue their review of this matter. As a result of their work, the Committee may want to report to the House recommending an action for the House to take or it might want to report on what it sees as a contempt, at which time the matter may once again come before the House. Without the benefit of the Committee’s view on this whole matter, I am reluctant to rule that a contempt of the House exists at this time.

I wish to add, however, a cautionary comment. Since 1985 Standing Order 32(5) was amended to read as follows:

Reports, returns or other papers laid before the House in accordance with an act of Parliament shall there upon be deemed to have been permanently referred to the appropriate standing committee.

I have to say-I think I probably speak for the House-those responsible to meet any deadlines for the tabling of documents in the House of Commons provided for in the Statutes of Canada should reflect carefully about the possible consequences of any delay. I thank honourable Members for their assistance in this matter.

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1992-02-05