121122-CullenreC-45ReportStage.docx

7/30/2019 121122-CullenreC-45ReportStage.docx

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Point of Order, reference of C-45

INTRODUCTION

Thank you Mr. Speaker,

It is often said that committees are the masters of

their own domain. Its a nice phrase, and it makes an

important point about a committees autonomy, but

perhaps you will agree with me when I say that it may be

a phrase that is exaggerated from time to time.

It means, essentially, that each of our Standing

Committees is in charge of its own affairs. That when

it is formed by order of the House, and when work is

assigned to them by this House, it is largely up to them to

decide how to tackle it.

But it is not true, as some suggest, that this means

committees can do whatever they want, whenever

they want, however they want, Mr. Speaker. There are

rules set out in the procedural texts, standing orders

and precedents of our legislature and those in other

jurisdictions, and committees cant simply throw those


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rules out whenever it pleases them. Each committee

may be the master of its domain in many respects,

Mr. Speaker, but there are clear and distinct borders on

their domains that committees must respect, even if it

doesnt suit some members of the governing majority.

In the case of C-45, the government has been stretching

the limits of what can and should be tolerated from a

majority government in this parliament. Our procedural

references are clear that, notwithstanding the

oppositions right to delay things that are unacceptable

to them, the government must have the right to make

progress on their legislative agenda in a reasonable

manner.

But this government has already tested - and we

would argue, broken - the democratic limits of our

legislature by packing a legislative agenda of an entire

parliamentary session into one or two bills, and then

cynically adding the words budget implementation

to the front cover. In the previous incarnation of thistactic, on C-38, you heard multiple submissions from

opposition members who felt that the government

had simply gone well beyond the reasonable limits of


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what might be honestly included in their budget bill.

Mr. Speaker, you disagreed with the interventions of

the opposition then, but I hope that you will conclude

after this submission, that the government has simply

played too fast and loose with the rules that must govern

the passage of legislation. And, Mr. Speaker, that such

action undermines parliaments essential ability to do its

work on behalf of Canadians namely, be able to hold

government to account.

Je ne vais pas discuter aujourdhui de la lgitimit, ni

mme de la valeur des projets de loi omnibus. Cest

ironique, Monsieur le Prsident, que ce gouvernement,

dans sa grande sagesse, soit en train, lui seul,

dapprendre aux Canadiens des termes et des phrasesqui leur seraient demeurs inconnus sans laide des

conservateurs.

Il y a quelques annes, le gouvernement a ressorti

le mot prorogation des livres procduraux,

et en a fait le sujet de discussion autour destables manger, et finalement le sujet dnormes

manifestations travers le pays.


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Grce eux, les Canadiens ont du revoir leur

dfinition de responsabilit ministrielle

puisque, malheureusement, sous ce premier

ministre les ministres ne semblent tre aucunement

responsables. Et ils ont fait du mot omnibus un gros mot,

en vitant systmatiquement la surveillance

du Parlement en utilisant cet outil lgislatif et

en abusant du pouvoir de leur gouvernementfaiblement majoritaire.

C-45 DETAILS

But during the committee process on their most recent

monstrosity of a budget omnibus bill, I believe they

have simply gone too far in their casual relationship with

parliamentary rules, and that the legislation should be

thrown out and made to start over as a result.

Ill remind you, Mr. Speaker, along with this House and

the Canadians hoping for better from their parliament,

of what has transpired with respect to C-45, the

governments second omnibus budget implementation

bill for the 2012-2013 budget.


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On October 18th of this year, following the adoption

of Ways and Means Motion number 13, the Minister

of Foreign Affairs moved, on behalf of the Minister

of Finance, that the bill C-45 be read a first time and

Printed. On October 24 th , the Minister of Public safety Moved

that Bill C-45 be read a second time and referred

to a committee, and after using time allocation

to shut down debate, second reading of Bill C-45ended with the passage of the following motion on

October 30th of this year: That Bill C-45, A second

Act to implement certain provisions of the budget

tabled in Parliament on March 29, 2012 and other

measures, be now read a second time and referred to the Standing Committee on Finance.

As a matter of record, Hansard on October 30th

specifically quotes the speaker saying: I declare

the motion carried. Accordingly, the bill stands

referred to the Standing Committee on Finance. The reference of this bill to committee, as set out

in the motion the House adopted, was always to

the finance committee, and only to the finance

committee.


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Ce point est important, Monsieur le Prsident,

parce que cette Chambre est aussi matresse de ses

activits, et afin de protger ses propres droits, cette

Chambre doit tre certaine que ses ordres de renvoi

sont respects. Comme vous le savez, Monsieur le

Prsident, en vertu du processus lgislatif que la

Chambre a adopt, un projet de loi peut uniquement

tre renvoy un seul comit, et ce comit doit tre

celui qui a t dsign par la Chambre elle-mme.

COMMITTEES CREATION AND RIGHTS:

Committees, as you will also know, Mr. Speaker,

derive their existence and authority from the House of Commons. The House creates committees specifically

through Standing Order 104, which further regulates

how they are constituted and governed under Standing

Order 106. The House also sets out the specific

mandate of each Standing Committee under Standing

Order 108.

An excellent summary of this regime can be found in

House of Commons Procedure and Practice , second


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edition, which I will refer to as OBrien and Bosc ,

on Pages 960 and 962 which say about standing

committees that:

They are empowered to study and report to the Houseon all matters relating to the mandate, management,organization and operation of the departmentsassigned to them. More specifically, they can review:

the statute law relating to the departmentsassigned to them;

the program and policy objectives of thosedepartments, and the effectiveness of their implementation thereof;

the immediate, medium and long-term expenditure plans of those departments and the effectivenessof the implementation thereof; and

an analysis of the relative success of those

departments in meeting their objectives.In addition to this general mandate, other mattersare routinely referred by the House to its standing committees: bills, estimates, Order-in-Council appointments, documents tabled in the House

pursuant to statute, and specific matters which theHouse wishes to have studied. [59] In each case, the

House chooses the most appropriate committee onthe basis of its mandate.
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I make particular note, Mr. Speaker, that all abilities

cited in this passage flow from the House, not from

another committee.

Ill emphasize, Mr. Speaker, the fact that the reference

on Bill C-45 to committee was only ever to the finance

committee. The motion passed in the house only

referred to the finance committee.

OPTIONS FOR OTHER CMTES:

Autrement dit, Monsieur le Prsident, cela nempche

pas dautres comits dtudier le contenu des

diffrentes sections dun projet de loi omnibus. Les

comits ont toujours ce droit, mais cette tude doittre spare de celle ralise en vertu de lOrdre de

renvoi que la Chambre donne au comit responsable

de ltude officielle de la loi en question. La seule faon

pour dautres comits dtudier des parties dun projet

de loi omnibus en toute lgitimit est de le diviser enplusieurs mesures lgislatives et de demander la

Chambre dmettre un Ordre de rfrence pour le ou

les nouveaux projets de loi ces comits.


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national police force under the bus.

And here we arrive at the essential problem with the

Conservatives approach to parliament and making law.They think the rules dont apply to them, and their

majority means they can cook up any scheme they

want, just to meet the communications goals of the

PMO. Heres what they cooked up in the Standing

Committee on Finance in response to intense pressure

from the official opposition and others in order to

give the appearance of due diligence on C-45s

committee study.

On October 31 st , 2012 the Standing Committee on

Finance adopted the following motion, and Im reading

from the minutes of that meeting:

Parliamentary Secretary to the Minister of Finance moved, That, in relation to theOrder of Reference of Tuesday, October 30,2012, respecting Bill C-45, A second Act toimplement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures,(a) the Chair of the Standing Committee write,as promptly as possible, to the Chairs of the


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following Standing Committees inviting thoseStanding Committees to consider the subject-matter of the following provisions of the said

Bill:(i) the Standing Committee on Aboriginal Affairsand Northern Development, clauses 206 to 209,(ii) the Standing Committee on Agriculture and

Agri-Food, clauses 351 to 410,(iii) the Standing Committee on Citizenship and

Immigration, clauses 308 to 314,(iv) the Standing Committee on the Environment and Sustainable Development, clauses 425 to432,(v) the Standing Committee on Fisheries and Oceans, clauses 173 to 178,

(vi) the Standing Committee on Health, clauses269 to 298,(vii) the Standing Committee on Human

Resources, Skills and Social Development and the Status of Persons with Disabilities, clauses219 to 232,

(viii) the Standing Committee on Justice and Human Rights, clauses 210 to 218,(ix) the Standing Committee on Public Safetyand National Security, clauses 264 to 268, and


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(x) the Standing Committee on Transport, Infrastructure and Communities, clauses 156 to165, 179 to 184, 316 to 350 and 411 to 424, and

schedules 1 and 2;(b) each of the Standing Committees, listed in paragraph (a), be requested to conveyrecommendations, including any suggested amendments, in both official languages, inrelation to the provisions considered by them, in

a letter to the Chair of the Standing Committeeon Finance, in both official languages not later than 5 p.m. on Tuesday, November 20, 2012;(c) any amendments suggested by the other Standing Committees, in the recommendationsconveyed pursuant to paragraph (b), shall bedeemed to be proposed during the clause-by-clause consideration of Bill C-45, provided that the recommendations are received prior to therelevant clauses being considered, and further

provided that the members of the Standing Committee on Finance may propose amendmentsnotwithstanding the recommendations received

from the other Standing Committees;(d) the Committee shall proceed to clause-by-clause consideration of Bill C-45 no later thanWednesday, November 21, 2012, provided that the Chair may limit debate on each clause to a


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maximum of five minutes per party per clausebefore the clause is brought to a vote;(e) amendments to Bill C-45, other than theamendments deemed to be proposed pursuant to

paragraph (c), be submitted to the Clerk of theCommittee 48 hours prior to clause-by-clauseconsideration and distributed to members in bothofficial languages; and (f) if the Committee has not completed the

clause-by-clause consideration of Bill C-45 by11:59 p.m. on Wednesday, November 21, 2012,the Chair shall put, forthwith and successively,without further debate or amendment, each and every question necessary to dispose of clause-by-clause consideration of the Bill, to report the Bill to the House, and to order the Chair to report the Bill to the House on or before Thursday,

November 22, 2012.Monsieur le Prsident, vous remarquerez

immdiatement plusieurs faits importants. Le comit

na pas fait rapport du projet de loi la Chambre le

jeudi 22 novembre ou plus tt. Le comit aseulement fait rapport du projet de loi cet aprs-midi.

Pourquoi? Parce que le comit a enfreint ses propres

rgles procdurales lorsque le gouvernement sest


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retrouv dans un nouveau gchis communicationnel.

Vous noterez galement, Monsieur le Prsident, que

cette examen par dautres comits que le comitdes finances est la tactique que le troisime parti a

employ pour, daprs que jen comprends, amliorer

la surveillance parlementaire de ce projet de loi. Eh

bien, les libraux ont eu ce quils voulaient, mais

seulement parce que le gouvernement tait tout fait

dispos DIRE quil tait coopratif, alors quen fait

tout le processus na t quune comdie procdurale,

dont la responsabilit revient au gouvernement et

ses allis involontaires du Pari libral qui ont oubli

le vieil adage qui dit de faire attention ce que lon

souhaite.

On the other end of the procedurally spectrum,

the motions that the official opposition proposed

to split the bill in a legitimate fashion, which were

quickly rejected by the government, would have

referred the separate policy areas in C-45 to theappropriate committee for an actual study. Then,

each committee could have held hearings, calling a

variety of witnesses, with critical expertise, and then


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after hearing these points of view on the bill, could

have created reasonable amendments for debate and

decision in a clause by clause meeting. And finally, Mr.

Speaker, each committee could then have reported to

their bill back to the House in due course. This would

have dramatically improved a flawed bill, corrected

the twisting of procedure from this government and

reconfirmed our collective commitment to respect for

taxpayers money and their parliament.

In this sham-of-a-process, various committees were

asked by the Finance Committee, not the House, to

study and propose amendments to a bill for which

they had no order of reference. Not only was this a

procedural disaster, but because of the impossiblyshort timeline, there was no opportunity for reasoned

debate at the other committees anyway. That last

point is a matter of debate, I realise Mr. Speaker, but

it further emphasizes that the process set up by this

government was a true disregard and disrespect for

our legislative process.

What we have been left with, Mr. Speaker, is an

illegitimate process that flies in the face of our


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Procedures and Practices. The implication of which

is summed up best in OBrien and Boscs passage on

committee reports, at page 985, where it says:

In the past, when a committee has gone beyond its order of

reference or addressed issues not included in the order, the

Speaker of the House has ruled the report or a specific part of the

report to be out of order. [190]

Monsieur le Prsident de la Chambre qui avez vous-

mme renvoy ce projet de loi un comit spcifique,

jestime que le Comit permanent des finances

navait tout simplement pas lautorit de renvoyer

des sections du projet de loi C-45 un autre comit

permanent. Le droit et le devoir du comit taitdtudier ce projet de loi et den faire rapport la

Chambre, avec ou sans amendement.

Let me review quickly for the benefit of those

watching at home or those government members who

cant seem to acknowledge that there are rules in thisplace that should be followed how a committee is

supposed to deal with a complex bill referred to it by

the House after second reading.
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Normally, after passage at second reading, the

committee which received the bill would organize

its time, call for a variety of witnesses based on the

lists provided by the recognised parties in proportion

to their representation at the committee, hear the

witnesses, formulate amendments, schedule a clause

by clause meeting, call each clause, hear amendments

to the clauses, vote on the amendments and the

clauses, and then vote on the bill. The results of thesedecisions would then be reported to the House. This

has been a time-honoured practice and regardless of

the bill, the intensity of the debate or the divisions,

it has been a process practiced by governments of all

political stripesThe House, in its wisdom, has even provided a

mechanism to allow for a variation on this normal

progress of a bill through committee, which is called

the motion of instruction.

Ill call upon the sage guidance of OBrien and Boscagain this time under their chapter on the legislative

process at page 752 where it says:


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Once a bill has been referred to a committee, the House may

instruct the committee by way of a motion authorizing what

would otherwise be beyond its powers, such as, for example,

examining a portion of a bill and reporting it separately,[227]

examining certain items in particular, [228] dividing a bill into

more than one bill, [229] consolidating two or more bills into

a single bill, [230] or expanding or narrowing the scope or

application of a bill. [231] A committee that so wishes may also

seek an instruction from the House. [232]

So, If the government was interested in following therules of this place, and wanted to have a variety of

committees study this bill, then it could have moved to

instruct the committee to do what it should otherwise

be powerless to do. In this case, that is to have other

committees conduct a review of the portions of the bill

that deal with their policy areas, allow amendmentsto those portions, and to report them separately. The

committee, if it felt incapable to deal with the sections

of the bill that have so little to do with finance and

the budget, could equally have asked the House for

instruction. But the power to authorise this variancein the legislative process rests only with the House of

Commons, and not the Finance committee.
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Parce quaucun autre comit na reu un ordre de

renvoi de la Chambre afin dtudier le projet C-45, et

parce quil ny a pas eu dinstruction de la Chambre

qui serait venu complter lordre de renvoi, jestime

quil est inacceptable quun comit autre que le

Comit des finances ait tenu des votes concernant des

amendements au projet C-45, ce qui est exactement ce

que le Comit des finances a fait. Des votes ont donc

eu lieu, Monsieur le Prsident, et comme la motiondu secrtaire parlementaire du ministre des Finances

lindique clairement, la dcision de ces autres comits

a un effet contraignant sur le travail du comit des

Finances. Lgitimement, il sagit pourtant dun droit

que seul la Chambre possde.To be clear, Mr. Speaker, any committee has the right

to initiate a study on the subject matter that applies

to their policy area, including on the elements of C-

45 that the government SHOULD HAVE included in a

separate bill. Though even then, Mr. Speaker, those

committees cant report back to another committee,

but rather back to the House of Commons, from which

the committee derives its power and to which it is


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accountable.

As you know, Mr. Speaker, committees also have the

power to meet jointly with other committees; butthere again, a report from a joint committee must

report only to the House, not to another committee.

This point is addressed by OBrien and Bosc at page

983, where in referring to a Joint committee it says:

If a report is adopted during a joint meeting, each committeemay present to the House a separate report, even though the

two reports will be identical. [182]

I also refer you to the same chapter on page 984 and

985 where how a committee reports to the House is

covered. It says:

In order to carry out their roles effectively, committees must be

able to convey their findings to the House. The Standing Orders

provide standing committees with the power to report to the

House from time to time, [188] which is generally interpreted as

being as often as they wish. A standing committee exercises

that prerogative when its members agree on the subject and

wording of a report and it directs the Chair to report to theHouse, which the Chair then does. [189]

Like all other powers of standing committees, the power to

report is limited to issues that fall within their mandate or that

have been specifically assigned to them by the House . Every
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report must identify the authority under which it is presented.

In the past, when a committee has gone beyond its order of

reference or addressed issues not included in the order, the

Speaker of the House has ruled the report or a specific part of the report to be out of order. [190]

We have rules for committees which show that they

receive their authority from the House, and which

also say that committees report their work back to the

House, and only to the House.

CONCLUSION: WHATS WRONG WITH C-45

En conclusion, jamais on aurait d accepter la

demande prsente par le Comit des finances

dautres comits de cette Chambre afin quilsdeviennent en quelque sorte des sous-contractants

de ce qui ne peut tre dcrit que comme un travail

bcl par le ministre des Finances et son secrtaire

parlementaire. Monsieur le Prsident, jestime

que dautres comits auraient pu aisment tudiercertaines parties du projet C-45. Ces comits auraient

pu recevoir des tmoins, et faire rapport de leurs

conclusions la Chambre.
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Mais parce que la Chambre a renvoy la question

uniquement au comit permanent des Finances, et que

le gouvernement a rabaiss nos rgles de procdure

afin de servir ses objectifs de communication et

de paratre dmocratique mme en prsentant un

projet de loi omnibus, jestime, Monsieur le Prsident,

quen tant que gardien des rgles qui protgent

lintgrit de cette vnrable institution, vous devez

rejeter le rapport du comit et le retirer du Feuilleton.

Thank you Mr. Speaker, I look forward to your ruling

on this, but perhaps one final note.

A ruling in favour of this submission would be a strong

indictment of the government, without doubt. But

after all of the legislative and procedural corners

they have cut since getting their much-coveted slim

majority in the last federal election, perhaps this will

be a healthy reminder that their power is still limited

by the rules of our parliamentary democracy. Perhaps

they can use the wake-up call that they are not kingsthat lord over this country, but rather servants of its

people.

Documents

121122-CullenreC-45ReportStage.docx