Points of Order – Bill C-38

On Monday, June 4th, 2012 in Points of Order
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Elizabeth May: Mr. Speaker, I am rising on a point of order today. It may be a little lengthy, so I would just like to establish that it will be acceptable to omit various page and section references and submit them in written form so that members are able to refer to the various precedents that I will be citing, just in the interests of time.

I rise on a point of order related to Bill C-38. My point of order is based on Standing Order 68(3), which states “No bill may be introduced either in blank or in an imperfect shape”.

First, let me set aside the argument I will not be advancing. I will not argue that C-38 goes too far as an omnibus bill or that it should be split. I will argue that C-38 is not properly an omnibus bill at all and therefore cannot benefit from the trend toward over-large and complex omnibus legislation.

I seek a ruling that the bill has not been put forward in its proper form, is therefore imperfect and must be set aside.

My first observation in relation to the standing rule and how I hope that the precedent will lead you to interpret it comes from a citation of the House in 1982 in which an hon. member said:

“Shape”, according to the Oxford Concise Dictionary, is a synonym for “form”. Therefore, a bill according to Standing Order 69 [as it then was] must not be in imperfect form. The question of a bill’s form is extensively dealt with in our parliamentary authorities…

A few of which are then cited from that era.

Having said I do not intend to argue that the bill must be split as being overly large for an omnibus bill, I still think there is a compelling case that the House must act to set limits around omnibus legislation.

Speaker Lamoureux stated his concern that some limits must be established in his well-known musings on this subject in 1971. He said at the time:

However, where do we stop? Where is the point of no return? The hon. member for Winnipeg North Centre, and I believe the hon. member for Edmonton West, said that we might reach the point where we would have only one bill, a bill at the start of the session for the improvement of the quality of life in Canada which would include every single proposed piece of legislation for the session. That would be an omnibus bill with a capital “O” and a capital “B”. But would it be acceptable…from a strictly parliamentary standpoint….

This is a critical question, but it is for another time and for the House itself. Rulings from speakers Sauvé, Fraser, Parent and Milliken have confirmed Lamoureux’s misgivings but also a general traditional view that it is not for the Speaker to say an omnibus bill has gone too far in terms of its length or in terms of the numbers of different items or complex matters in one bill.

This point of order does not rest on argumentation that 420 pages is too long for an omnibus bill, nor that amending, repealing or reinstating 70 different acts of Parliament goes too far. So long as a bill meets the tests of being an omnibus bill, tradition will allow it.

In order to respect the standing orders of this House, any proposed omnibus bill must conform to the established criteria of an omnibus bill.

Furthermore, to be accepted as a budget omnibus bill, the proposed legislation must further conform to the rule that the implementation legislation must relate to commitments made in the budget document itself.

The tests for a proper omnibus bill are well established. I cite from our current authorities O’Brien and Bosc:

An omnibus bill has “one basic principle or purpose which ties together all the proposed enactments and thereby renders the Bill intelligible for parliamentary purposes”. 

That is a closed inner quote. Then it continues:

One of the reasons cited for introducing an omnibus bill is to bring together in a single bill all the legislative amendments resulting from a [single] policy decision to facilitate parliamentary debate. 

A further citation from Beauchesne’s 6th edition, which by the way was cited with approval by Speaker Fraser in 1992, states:

Although there is no specific set of rules or guidelines governing the content of a bill, there should be a theme of relevancy amongst the contents of a bill. They must be relevant to and subject to the umbrella which is raised by the terminology of the long title of the bill.

Speaker Fraser ruled in 1988:

The essential defence of an omnibus procedure is that the Bill in question, although it may seek to create or amend many disparate statutes, in effect has one basic principle or purpose which ties together all the proposed enactments and thereby renders the Bill intelligible for parliamentary purposes.

Speaker Fraser went on to say, citing at this point a definition put forward by the hon. member, at the time, for Windsor West:

I believe that his definition will stand the test of time and be useful to the House and future chair occupants for years to come.

It is worth noting that, while back in 1982 the energy bill that was split through the action of the House due to determined action of the opposition, the famous bell-ringing episode, was not set aside by the Speaker, still Speaker Fraser cites the energy bill in the 1988 argument and by inference uses it as an example of a bill that went too far in its attempt to claim all legislative changes fit a common purpose. He compares and contrasts it with the free trade legislation, which formed a context within which his lengthy and detailed canvassing of the issues took place in 1988.

The implication is clear, that in Speaker Fraser’s view the 1982 energy bill failed the test of omnibus definition he had put forward. As such, although it is at best obiter dicta, it does serve to add weight to the notion that simply calling legislation omnibus will not assure that it can be accepted as such.

His final summation on the detailed ruling does indeed confirm that the Speaker has the authority to find if a bill is in proper shape. The Speaker has the authority to determine if a piece of legislation meets the test of being a true omnibus bill.

Speaker Fraser ruled:

Bill C-130 is indeed an omnibus Bill—it meets the definition as stated by the Hon. Member for Windsor West in that it has a single purpose, while amending various statutes but without further guidance of the House and based on the practice to this day, it should be allowed to proceed…;

It is clear that the Speaker is not, at present and in absence of rules from the House to limit the length and complexities of omnibus bills, entitled to rule that an omnibus bill is too long, too complex or too broad in scope.

It is also clear that the Speaker is entitled to determine if legislation purporting to be an omnibus bill is actually in the proper shape to be considered an omnibus bill.

The tests are also clear. To be an omnibus bill, it must have a single purpose.

Bill C-38 has been introduced in an imperfect shape. It fails the tests of being a proper omnibus bill.

First, it fails because it has no central theme—that “one basic principle or purpose”—in order to be legitimized as a reasonable basis for debate and study.

Second, it fails because it does not provide a link between items in the bill and the budget itself.

Third, it fails because it omits actions, regulatory and legislative changes described by representatives of the Privy Council as part of Bill C-38. The omission of items that the ministers and hon. members speaking for the Privy Council assert are in C-38 further confirms the bill is imperfect, unready and requiring a reworking.

I will take each of these failings in turn.

First, Bill C-38 does not have a theme of relevancy, one basic principle or purpose, nor does it arise from a single policy decision. I anticipate that the Conservative Privy Council officers will respond to this point of order and say its theme is the budget. It is entitled, “An act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures”. Clearly, a budget is no longer merely a fiscal statement comprising changes to the Income Tax Act and other tax measures. It is understood to be a policy statement, and as such, a policy statement, it can be considered a theme.

Commentators have warned us that this trend undermines the role of Parliament in proper oversight of the public purse and of individual pieces of legislation.

Professor Ned Franks, professor emeritus at Queen’s University, wrote back in 2010:

Canadian budget implementation acts…have morphed from short bills dealing with minor items mentioned in the budget speech to enormous omnibus bills…Parliament cannot study them properly…These omnibus budget implementation bills subvert and evade the normal principles of parliamentary review of legislation.

As the anti-democratic risks of omnibus bills draw greater scrutiny, the links to policy must not be accepted on faith. Nor should they be loose or sloppy in analysis. Much rides on knowing that there is a legitimate link between the measures in an omnibus budget bill and the budget itself. If the link is not there, the legislation fails to meet the test of an omnibus bill.

The failure of opposition parties in recent years to adequately challenge the creeping nature of omnibus budget bills cannot in itself create precedents. The silence of opposition parties and therefore of the Speaker does not create affirmative approval of the so-called omnibus budget bills of 2009 and 2010.

I return now to the first test of whether the bill is properly an omnibus budget bill.

Bill C-38 does not have one central theme. Even if one accepts that the budget document of March 29, with its myriad policy and fiscal initiatives, represents a theme, a single purpose, Bill C-38 contains much that was simply never mentioned in the budget and which further fails to have more than a fanciful connection to the public relations short title of the bill, jobs, growth and long-term prosperity.

This is frankly baffling. Budget 2012 covers hundreds of areas. There was no limit or restriction for the Minister of Finance on the topics that were chosen for inclusion. The Privy Council officers who signed off on the March 29 budget had abundant opportunity to ensure that nothing included in Bill C-38, the budget implementation act, would fall outside the scope of the budget itself. Had they done so, the affront to Parliament would at least fall within our rules. The respect for Westminster parliamentary tradition and our role as parliamentarians would not have been so egregiously abused.

As it is, I maintain that Bill C-38 fails to meet the first test to ascertain whether it is properly an omnibus budget bill, whether the measures in Bill C-38 are included in the budget itself.

The following examples establish that Bill C-38 fails to provide a link between the items in Bill C-38 and the budget itself. I will begin with the sections that have completely changed the Canadian Environmental Assessment Act.

While “streamlining”, eliminating duplicate reviews and time limits for the reviews found under the Canadian Environmental Assessment Act were flagged in the budget, the fact that the act was to be repealed was never mentioned in the March 2012 budget. The budget suggested important amendments to CEAA, but it simply never mentioned repealing the act and introducing an entirely new legislative scheme. It never mentioned that triggers for federal review, in place since the 1980s guidelines order, such as the presence of federal funds in the proposed undertaking as a trigger for required review, would be removed.

The budget never mentioned wholesale redefinition of the substance of review, of those impacts that require study under the act. These changes are not relevant to the proposed rationalization for streamlining. These and other changes represent a threat and a retreat from federal responsibilities for which no foundation was laid in the budget itself.

Further, the Fisheries Act was never mentioned in the budget at all. Other than reductions in available funding for the Department of Fisheries and Oceans, enhanced funding for first nations fisheries and increased funding for fisheries science, fisheries are not mentioned in the budget at all. Nowhere in the budget is it suggested, or required as a legislative change to implement other parts of the budget, that a major overhaul of the Fisheries Act is to be expected.

The changes to the Fisheries Act concealed in Bill C-38 are simply the most far-reaching, radical and fundamental changes to the Fisheries Act in Canada’s history. Nothing less would have provoked four former ministers of fisheries and oceans, representing fishery policy under three different prime ministers, to speak with one voice in urging the act to be withdrawn. Yet the proposed amendments to the Fisheries Act were not mentioned in the budget at all. They are not anchored to any promised change in the budget. Unmoored from the budget, the changes to the Fisheries Act lack all legitimacy.

Also unmentioned in the budget are changes to the functions of personnel within national parks. The amendments to the Parks Canada Agency Act are perhaps sensible. They would allow Parks Canada Agency wardens to enforce other acts for other agencies. Regardless of whether such changes would be offensive or not, and without further study of the long-term implications for Parks Canada’s core mandate, I cannot say, and whether it is a good change or not is irrelevant to the main point. These changes have nothing whatsoever to do with the budget. Parks Canada’s budget was reduced and a new national park was announced without funding for the Rouge Valley near Toronto. Neither of these budgetary mentions have any connection to the Bill C-38 amendments to the Parks Canada Agency Act.

Amendments to the Canada Oil and Gas Operations Act to give the National Energy Board authority over pipelines and power lines crossing navigable waters, removing authority held under the Navigable Waters Protection Act, were also never mentioned in the budget.

There is similarly no mention in the budget of changes to the Species at Risk Act, the Canadian Environmental Protection Act or the Navigable Waters Protection Act. The only reference to the policy area of species at risk within the budget was to provide more funding. If the act governing species at risk required overhaul to deliver on this aspect of the budget, why was it never mentioned? There is no nexus between the one reference to species at risk in budget 2012 and the subsequent legislative changes in Bill C-38. There is no reference at all to policy or legislative changes in the budget related to the Canadian Environmental Protection Act or the Navigable Waters Protection Act.

I come to the repeal of the Kyoto Protocol Implementation Act. This repeal could hardly be described as a surprise. The current executive branch has made it very clear that it wishes to repudiate Canada’s global treaty obligations. Nevertheless, I ask you, Mr. Speaker, to consider the rules and precedents of Parliament. A measure in an omnibus budget bill is only legitimate if it has some relation to a central organizing theme. The topic of climate change is never once mentioned in the budget.

The House cannot take the equivalent of judicial notice that everyone knows the Prime Minister intends to kill the Kyoto Protocol Implementation Act. The Prime Minister, or, more accurately, his Minister of the Environment has all the powers and authority necessary to present legislation to the House to repeal the Kyoto Protocol Implementation Act. The Conservatives have a majority of seats in both places, making it a foregone conclusion for this and all the other bills I have mentioned that do not belong in Bill C-38 and that properly tabled legislation will meet with parliamentary approval.

Should the Privy Council officers respond that “the jobs, growth and long-term prosperity” agenda requires the repeal of this act, they must be called upon to make proof of this assertion. The Kyoto Protocol Implementation Act provisions make its terms moot with the withdrawal of Canada from the Kyoto protocol through the action of the Minister of the Environment announced in the House in December of last year. The repeal of the act included in Bill C-38 is further evidence that the act has no central theme, purpose or principle.

Moving on from the extensive environmental aspects of Bill C-38, there are other legislative changes for which no foundation has been laid in the budget.

One of the most serious changes to Bill C-38 relates to a new supremacy of Privy Council to override decisions of the National Energy Board. This change to the National Energy Board Act was not mentioned at all in the budget document. Nor was it shared in advance explanatory notes. It is not connected to any theme, but is a significant change in the context of a quasi-judicial body with a long history of professionalism. There has been no explanation, so it is impossible to find in this change any link or theme to connect it to other aspects of Bill C-38.

The elimination of the Office of the Inspector General under the Canadian Security Intelligence Service has no connection whatsoever to the budget. Neither are the changes to consolidate the responsibility for reviewing the activities of the Canadian Security Intelligence Service into the Security Intelligence Review Committee foreshadowed in the 2012 budget. To attempt to find a theme that embraces repealing the Kyoto Protocol Implementation Act, weakening of fisheries habitat protection and eliminating the Inspector General of CSIS within C-38 is an exercise to make your head hurt.

The new provisions for conditional release decisions within the Corrections and Conditional Release Act are also completely unhinged from anything in the budget.

There is no logical—or even illogical—link between budgetary measures and the changes in Bill C-38. The repeal of the Fair Wages and Hours of Labour Act is not referenced in Budget 2012. The repeal of this act could have serious implications. In addition, it is not related to other aspects of Bill C-38, which drives home the point that the bill has no overarching theme.

One of the most profound changes to Canada contained in Bill C-38 relates to the surrendering of sovereignty in relation to law enforcement. While certain measures for improved movement of goods at the border are mentioned in the budget, the so-called “ship-rider” provisions are not mentioned. The decision to allow the law enforcement officials from another sovereign nation onto Canadian territory to enforce foreign laws is a dramatic and radical change. The Privy Council is, as noted above, entitled to table legislation to reduce the traditional understanding of Canadian sovereignty. Such a radical departure from universally understood principles of sovereignty merit legitimate debate and review. Given the majority of seats held by the Conservative Party, so long as members of Parliament are required by their whip to vote with their cabinet colleagues, any such bill will pass. However, this measure is not linked to the policy direction of the budget. It is not referenced, and as such, it is further evidence that Bill C-38 is not a proper omnibus budget bill at all.

The complete list of measures that had no connection to the budget involves the elimination of numerous bodies and consequential repeal of numerous agencies never mentioned in the budget. I know that the above list is not exhaustive, but covers many of the larger measures for which there is no link to budget 2012.

There is another group of things that I find unusual, and that is the third ground on which I make the case that Bill C-38 violates Standing Order 68(3). It fails by omitting actions, regulatory and legislative changes that were described by representatives of the Privy Council as part of Bill C-38. The omission of items that the ministers and hon. members speaking for Privy Council assert are in Bill C-38 further confirms the bill is imperfect, unready and requiring a re-working.

I will cite numerous examples from the debate at second reading of Bill C-38 in which members of the Privy Council and Conservative members of Parliament spoke favourably to aspects of the legislation that were actually not in Bill C-38 at all. I anticipate that Conservative members may claim that people make mistakes in debate and that the claims that were made about Bill C-38 are not substantive and that statements made in debate cannot add to the evidence that Bill C-38 is imperfect.

In other Parliaments that may have been true. The occasional enthusiastic slip of the tongue does not undermine a governing party’s description of its legislation.

However, these are not occasional slips. The claims of provisions in Bill C-38 that simply are not there were made by the Minister of Natural Resources and by the Minister of Environment. The claims were made, not in extemporaneous fashion, as if such exists any longer in the governing party of the day. The claims were made in prepared speaking notes. The same words and virtually verbatim text were submitted by a number of backbenchers as well.

In relation to claims of greater tanker and pipeline safety, I submit the following statements in debate at second reading. The Minister of Natural Resources said:

Mr. Speaker, the bill would do a great deal to protect the environment…tankers will have to be double-hulled, there will be mandatory pilotage, there will be enhanced navigation, there will be aerial surveillance, and [other] measures will be taken when necessary in particular cases.

The Minister of the Environment said, “The legislation before us would provide new funding in support of improving pipeline and marine safety….It would fund $35.7 million over two years to further strengthen Canada’s tanker safety regime”.

The hon. member for Prince George said, “We would enhance pipeline and marine safety through initiatives such as a strengthened tanker safety regime”

The Parliamentary Secretary to the Minister of Trade said, “I would like to speak directly to the budget bill…We will strengthen pipeline safety…Every Canadian would support strengthening pipeline safety”.

There is a further statement from the hon. member for West Vancouver—Sunshine Coast—Sea to Sky Country, a further statement from the hon. member for North Vancouver and a further statement to the same effect from the hon. member for Kootenay—Columbia.

There is absolutely nothing in Bill C-38 that advances tanker safety or pipeline safety. The budget document itself mentions such changes are planned, but Bill C-38 omits any reference to them.

Ironically, after the litany of measures never mentioned at all in the budget that are included in Bill C-38, in this case the budget promises the changes, but Bill C-38 has not a word about pilotage or double-hulled tankers or increasing pipeline inspections.

We have a choice here. We could either conclude that the ministers and other hon. members were deliberately misleading this House or, because I reject this first notion, I submit the only sensible conclusion is that there are errors in Bill C-38 that have omitted important sections that the ministers honestly believe were in the legislation they were putting before us.

In the matter of environmental assessment, ministers and other hon. members also asserted specific language to the new provisions to allow for the complete substitution of federal environment review for the provincial one. In second reading debate, the specificity of the language and its repetition suggests they honestly believe the legislation is drafted in a way that it is not. The Minister of Natural Resources said:

It would allow provincial environmental assessments that meet the substantive requirements of the Canadian Environmental Assessment Act to be substituted for the federal government assessment. In some cases, the provincial process may be deemed equivalent to the federal process. However, these provisions will only be put into effect if the province can demonstrate it can meet federal requirements.

The Minister of Natural Resources further said:

There will be an opportunity for substitution by the province but only if the particular province in question has the capacity and the willingness to conduct an identical level review.

The hon. member for Burlington said roughly the same thing. He said, “I want people to read the legislation.” Frankly, so do I. He said:

I want people to read the legislation. It talks about substitution. It does not talk about elimination. If there is an environmental assessment at the federal level and another one at the provincial level, we can substitute one for the other, but they have to be at least equal.

While substitution of reviews is contemplated in Bill C-38, there is no requirement for an identical level of review, for them to be at least equal, nor for meeting federal requirements.

The summary pages describing the legislation called the substitution “equivalent”, but the word appears nowhere in the operative sections of Bill C-38. In fact the relevant section of the new CEAA offers no criteria at all for a discretionary decision by the minister that the substitution would be “appropriate”, and I cite that section. There is no requirement for equivalency.

These examples of claims for subject matter not covered at all in Bill C-38, pipeline and tanker safety, as well as for subject areas included, but without the strength of criteria repeatedly referenced by Privy Council officers in debate, are further evidence that the legislation is imperfect. I will not accept that so many hon. members spoke in an effort to mislead the House. The members clearly believe that Bill C-38 meets the description they have given the House.

Furthermore, as all speeches delivered by Conservative Party members of Parliament are reviewed in advance by the Prime Minister’s office and given the similarity of wording were likely written by the same person on PMO staff, the Prime Minister cannot but agree that the legislation falls short of his own stated goals.

Whether through hasty drafting or other error, the legislation does not meet the description offered by three members of Privy Council as well as several hon. members. It is imperfect and unready and should be withdrawn.

In conclusion, Mr. Speaker, I wish to put forward one final argument to persuade you to reject Bill C-38, which violates the Standing Orders of the House of Commons. My argument is this: the respect of the body politic of this institution is at stake.

I recall the words of the late journalist, a great Canadian, James Travers. We happened to both be on the CBC program Sunday Edition in the spring of 2009, discussing threats to our democratic institutions. He commented that we really no longer have a democracy in Canada, and if we visit Ottawa today, what we will see is a democracy theme park. The buildings are still there and we can tour Parliament, but we will no longer see democracy.

I refuse to accept that is the case. I acknowledge that democracy is not a permanent state of existence. It can be won, as in Arab Spring, and it can be lost. It can be lost through violence; it can be lost through neglect. It does not survive without the constant application of checks on the abuse of power. It needs openness. Those things done by stealth invariably breed an unhealthy loss of respect in our democratic institutions. Sunlight is a great antiseptic. The myriad, unrelated pieces of legislation under cover of Bill C-38 should, to respect Westminster parliamentary democracy, be brought out of the shadows, be tabled separately and studied on their own merit.

To allow Bill C-38 to masquerade as a legitimate omnibus bill will bring our institutions into greater disrepute.

Bill C-38 is widely understood in the popular media as a fraud. I will cite a few examples of respected commentators on our system of government.

Andrew Coyne wrote that Bill C-38 “… is not remotely a budget bill despite its name.” He wrote that, while throwing non-budgetary matters into a budget bill is not unknown, in Bill C-38 “the scale and scope is on a level not previously seen, or tolerated. There is no common thread that runs between them, no overarching principle; they represent not a single act of policy but a sort of compulsory buffet.”

John Ivison in the National Post, noting that the excuse for this omnibus approach is the urgency to move projects to approval, maintains:

… it’s not so “urgent” that it justifies an end-run around 145 years of parliamentary tradition…. Someone, somewhere deep within the Prime Minister’s Office took the decision to try to cram as much contentious legislation in one mega-bill to minimize the political fallout. It was a dumb move and it has blown up in their faces…. condemned by all but the most blinkered of partisans.

Terry Glavin wrote in the Ottawa Citizen that:

Bill C-38…is a heck of a thing. It’s an omnibus bill that purports to be a budget bill but isn’t. It’s a statutory juggernaut that introduces, amends, or repeals nearly 70 federal laws. It’s been presented to the House of Commons in a manner that may be without close precedent in Canadian parliamentary history.

Dan Gardner wrote just this weekend in the Ottawa Citizen that:

…the government’s mammoth Bill C-38, which is theoretically the budget implementation bill, but is in reality a vast number of pieces of legislation that have nothing to do with each other, or the budget. Piling most of the government’s legislative agenda together in one bill ensures scrutiny will be kept to a minimum, which is in keeping with the government’s unprecedented use of time allocation and closure to shut down parliamentary debate.

We, as parliamentarians, must be the bulwark against abuse of power, even in a majority government. Our only shield is our traditions, the standing rules, precedent and our respect for the same. Our only hope is in a fair judge. I turn to you, Mr. Speaker, without fear or favour, sine timore aut favore, to rule fairly and protect Westminster parliamentary democracy, to restore public faith in our institutions and to order Bill C-38, a bill imperfect in form and shape, to be withdrawn pursuant to our standing rules.

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