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ENGLISH VERSION

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RULING ON THE QUESTION OF PRIVILEGERAISED ON March 6, 2013,

BY THE MEMBER FOR Winnipeg Centre (Mr. Martin)REGARDING THE MINISTER OF JUSTICE’S STATUTORYOBLIGATION TO EXAMINE GOVERNMENT BILLS ANDREGULATIONS TO DETERMINE WHETHER THEY ARE

INCONSISTENT WITH THE CANADIAN CHARTER OF RIGHTSAND FREEDOMS AND THE CANADIAN BILL OF RIGHTS

March 27, 2013

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I am now prepared to rule on the question of privilege raised onMarch 6, 2013, by the Member for Winnipeg Centre (Mr. Martin)regarding the Minister of Justice’s statutory obligation to examinegovernment bills and regulations to determine whether they areinconsistent with the Canadian Charter of Rights and Freedoms andthe Canadian Bill of Rights.

I would like to thank the hon. Member for Winnipeg Centre forhaving raised this matter, as well as the Minister of Justice and AttorneyGeneral for Canada (Mr. Nicholson), the hon. Leader of the Governmentin the House of Commons (Mr. Van Loan), the hon. House Leader forthe Official Opposition (Mr. Cullen), and the Members for Saanich—GulfIslands (Ms. May), Winnipeg North (Mr. Lamoureux), Mount Royal(Mr. Cotler), and Gatineau (Ms. Boivin) for their comments.

In raising this question of privilege, the Member for WinnipegCentre explained that, pursuant to certain statutory requirements, theMinister of Justice is required to examine all government bills andregulations in order to determine whether they are actually inconsistentwith the Charter of Rights and Freedoms and the Bill of Rights. Hecited Section 3 of the Canadian Bill of Rights, which states:

(quote) “the Minister of Justice shall … examine everyregulation… and every Bill introduced in or presented to theHouse of Commons by a Minister of the Crown, in order toascertain whether any of the provisions thereof are inconsistentwith the purposes and provisions of this Part and he shall reportany such inconsistency to the House of Commons.” (unquote)

The hon. Member then claimed that, if the allegations contained inan action filed in the Federal Court by Mr. Edgar Schmidt, a Departmentof Justice official, are proven to be true, the Minister has flouted thesestatutory requirements. He contends that the Minister manages the riskof inconsistency in a cavalier fashion, and he argues that, by allowinglegislation to be introduced in the House that has a possibility of beinginconsistent with the Charter of Rights and Freedoms or the Bill ofRights, the Minister misleads Parliament, thus leaving Members with noreliable assurance that proposed legislation is not in violation of theCharter and the Bill of Rights. The Member asked that the Chair findthat the Minister’s approach had thus effectively impeded Members inperforming their duty to exercise due diligence in considering

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government bills. I note that to do so the Chair would first need toestablish whether the Minister of Justice had acted in accordance withhis statutory obligations.

That said, while the Member for Winnipeg Centre went on to admitthat there exists no evidence that the Minister of Justice deliberately, oreven implicitly, gave the House inaccurate information, he claimed thatthere are serious deficiencies in the examination and vetting of draftgovernment legislation by the Minister of Justice as evidenced by anumber of legal challenges to legislation believed to be inconsistentwith the Charter and the Bill of Rights.

The Member contended that even though the matter is before thecourts, the sub judice convention does not prevent the House fromconsidering this question of privilege as it is in no way dependent uponthe findings of the court, nor will debate on the question of privilegeinterfere with the court in carrying out its duties.

Acknowledging that questions of privilege must be raised at theearliest opportunity, the Member for Winnipeg Centre assured theHouse that he brought this matter to the attention of the House asquickly as he could bring the research together given the complexity ofthis question of privilege.

In response, the Minister of Justice insisted that the matter wasnot raised at the first opportunity since the court action in question wasfiled on December 14, 2012, leaving the Member many opportunities tohave raised this matter in the intervening months—as many otherMembers had done in both committees and in the House. Second, theMinister argued that the Chair has no jurisdiction over questions of law,which are for the courts alone to decide. Third, the Minister suggestedthat the sub judice convention dictates that since the matter is beforethe courts, the House should allow the courts to resolve the matterbefore undertaking any debate on the matter.

The Minister of Justice noted that the Member for WinnipegCentre had failed to provide any evidence that the House and itsMembers were in anyway impeded in carrying out their duties. TheMinister stated categorically:

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(quote) “…this Government has never introduced any legislationthat I believe was inconsistent with the Canadian Charter ofRights and Freedoms or the Canadian Bill of Rights.” (unquote)

He went on to remind the House that the Member for WinnipegCentre had acknowledged that he had (quote) “no evidence” (unquote)to suggest that the Minister provided deliberately inaccurate informationto the House about government bills.

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

Regarding timeliness, both the Member for Winnipeg Centre andthe Opposition House Leader explained that it is only after sometime­consuming initial research that the Member felt compelled to raisethe matter in the form of a question of privilege. Furthermore, I wasinterested in the statement of the Member for Gatineau who noted thatthis question of privilege was raised only after efforts to consider thematter in committee had failed. While I might come to a differentconclusion if the question at issue related directly to a specific incidentin the House, with regard to this particular question of privilege, I amsatisfied with the explanations offered and will not rule this question outof order purely on the basis of timeliness.

The suggestion has also been made that the sub judiceconvention, in and of itself, prevents the consideration of this questionof privilege at this time. House of Commons Procedure and Practice,Second Edition, at page 627 states:

(quote) “The interpretation of this convention is left to theSpeaker since no “rule” exists to prevent Parliament fromdiscussing a matter which is sub judice.” (unquote)

As Speaker, I must endeavor to find a balance between the rightof the House to debate a matter and the effect that this debate mighthave. This is particularly important given that the purpose of the subjudice convention is to ensure that judicial decisions can be made free

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of undue influence. While O’Brien and Bosc states on page 628, inreference to a March 22, 1983, ruling by Speaker Sauvé,

(quote) “ … the sub judice convention has never stood in theway of the House considering a prima facie matter of privilegevital to the public interest or to the effective operation of theHouse and its Members.” (unquote),

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

(quote) “The sub judice convention is important in the conduct ofbusiness in the House. It protects the rights of interested partiesbefore the courts, and preserves and maintains the separationand mutual respect between the legislature and the judiciary.The convention ensures that a balance is created between theneed for a separate, impartial judiciary and free speech.”(unquote)

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

But arguments over the timeliness of the intervention of theMember for Winnipeg Centre and the extent of the restraints we mightchoose to impose on ourselves because of the sub judice conventionare ancillary matters. It seems to me that the central element of thisquestion of privilege asks the Speaker to determine if the Governmentis meeting its obligations under the law, as set out in Section 3 of theCanadian Bill of Rights and Section 4.1 of the Department of JusticeAct and their relevant regulations. The Member for Mount Royal distilledthis issue down to its fundamental element in stating:

(quote) “What is rightly before the House, raised as a question of

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privilege, is whether the Minister has satisfied himself of theconstitutional compliance of legislation.” (unquote)

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

Numerous previous Speakers’ decisions point to a very clearpractice for the Chair to follow in instances such as this. In a rulinggiven by Speaker Fraser, on April 9, 1991, which can be found at pages19233 and 19234 of the Debates, he said:

(quote) “The Speaker has no role in interpreting matters of eithera constitutional or legal nature”. (unquote)

In a ruling given by Speaker Jerome, on June 19, 1978, which canbe found at page 6525 of the Debates, he addressed a complaint thatthe government of the day may have acted illegally. He stated:

(quote) “The hon. Member also alleges the Government actedillegally in the manner in which postal rates have beenincreased. Hon. Members will be aware that I have a duty todecide questions of order, not of law, and furthermore, Iunderstand that this issue is now before the courts. In myopinion, therefore, it is an issue to be settled by the courts, andthe Chair should not intervene.” (unquote)

House of Commons Procedure and Practice, Second Edition, atpage 261 also provides valuable insights. It states:

(quote) “…while Speakers must take the Constitution andstatutes into account when preparing a ruling, numerousSpeakers have explained that it is not up to the Speaker to ruleon the “constitutionality” or “legality” of measures before theHouse”. (unquote)

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 orconstitutional matters that the Chair could rule on. He stated at that time:

(quote) “What they may decide is whether the terms of a bill are

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in compliance with a prior resolution of this House, a ways andmeans motion, for example, or a royal recommendation inrespect of a money bill, but beyond that, Speakers do notintervene in respect of the constitutionality or otherwise ofprovisions in the bills introduced in this House.” (unquote)

More recently, I have also been called upon to make rulings whicheffectively asked me to interpret the law. On October 24, 2011, at page2405 of the Debates, I stated:

(quote) “…it is important to delineate clearly betweeninterpreting legal provisions of statutes—which is not within thepurview of the Chair—and ensuring the soundness of theprocedures and practices of the House when consideringlegislation—which, of course, is the role of the Chair.” (unquote)

Given the Chair’s limited scope to consider legal matters, andbased solely on what is within my purview to consider, I cannotcomment on the adequacy of the approach taken by the Government tofulfill its statutory obligations.

I can therefore find no evidence that the Member for WinnipegCentre’s privileges have been breached, and cannot see how this risesto a matter of contempt. Accordingly, I cannot find a prima faciequestion of privilege.

I thank all Members for their attention.