I now have the honour of debating the omnibus budget bill, Bill C-44, at report stage. I find this so ironic, because I truly believed that the era of the omnibus budget bill would end when the new Liberal government took power. In fact, the new government promised that it would not use this strategy to cram several measures into one bill.

I want to start in this debate by setting out some of the background around the category of omnibus budget bills, because much has been said and only some of it, in my view, actually captures the problem that we have.

It needs to be said that omnibus budget bills were not offensive in the period of time before 2006. If we go back, we find that between 1994 and 2005, the average budget bill was 73.6 pages long. However, it is ironic—I am using the word “irony” a lot today and I apologize for that, but it does seem to be the appropriate word—that back in 1994, the then Reform Party MP and backbencher Stephen Harper objected vigorously to the 1994 omnibus budget bill put forward by former prime minister, the Right Hon. Jean Chrétien. The Reform MP, as he was then, said:

Mr. Speaker, I would argue that the subject matter of the bill is so diverse that a single vote on the content would put members in conflict with their own principles.

…there is a lack of relevancy of these issues. The omnibus bills we have before us attempt to amend several different existing laws.

…in the interest of democracy I ask: How can members represent their constituents on these various areas when they are forced to vote in a block on such legislation and on such concerns?

Now, that was referring to the omnibus budget bill of 1994. I would love to ask members here if they could guess how many pages it was, but I am not sure it would be proper form to ask members to shout out answers. However, I doubt that on a pop quiz members here assembled would guess that it was 24 pages long. Yes, Stephen Harper was complaining in 1994 about an omnibus budget bill of 24 pages.

The longest omnibus budget bill we had in the history of Canada, until Mr. Harper became prime minister, was when the Right Hon. Paul Martin was prime minister in the spring of 2005. He put forward the longest omnibus budget bill in Canadian history to that point. It was 120 pages long. I remember Stephen Harper complaining about it, because one of the measures the government was going to take in that omnibus budget bill was to amend the Canadian Environmental Protection Act to ensure that greenhouse gases could be regulated under CEPA.

The Liberals defended it as a budget measure by saying that so much of the budget was their plan to reduce greenhouse gases that therefore this measure to amend CEPA was all right. In fact, in response to the vigorous criticism from opposition parties, the government of the day backed down and took that section out of the budget bill of 2005.

We began to see the use of omnibus budget bills a significant way in 2009 and 2010. The 2009 omnibus bill topped 580 pages, and the 2010 omnibus bill topped 883 pages, leading professor of political science and professor emeritus at Queen’s University Ned Franks to write that the use of omnibus budget bills “subvert and evade the normal principles of parliamentary review of legislation.”

The use of them in a minority Parliament made sense, because how else could a governing party that had the minority of the vote force Parliament to accept measures that it would clearly, if given the opportunity, defeat? Since budgetary measures are confidence measures, and parties for one reason or another did not want to have an election quite yet, there was always a sort of propping up of the Conservatives in minority, and big changes were made to the Navigable Waters Protection Act and to the Canadian Environmental Assessment Act. They were pushed through because it was a minority Parliament, and putting them in a budget bill was a very clever device.

The fact that Stephen Harper continued to use them in majority had a lot to do with the fact that when the Conservatives had the majority, they moved things through very rapidly and precluded proper study at committee. We had the double-barrelled omnibus budget bills Bill C-38 and Bill C-45 in 2012 that basically dismantled Canadian environmental law, from the Fisheries Act to the Navigable Waters Protection Act to the Canadian Environmental Assessment Act to the National Energy Board Act itself.

What makes omnibus budget bills offensive? It is not solely because there are many bills or many measures all in one bill. The point of an omnibus bill, which is not offensive in and of itself, is that every measure relates to the same purpose or to an overriding theme. There is much that has been written and decreed by Speakers, going back to former Speaker Lucien Lamoureux, who was the first to rule on this in the 1960s. He said that they were moving in a direction where a government could say here is our bill, and it is all the legislative work of an entire session, but it is omnibus.

We have to be careful about omnibus bills. This one has too many measures that should not be in it, although it is a far cry from the abuse we saw in the 41st Parliament.

These are the measures that should not have been included in an omnibus budget bill, because they are not receiving proper study. One is a change to the Board of Internal Economy. It is very welcome that the Board of Internal Economy meetings would be made public, but back to the position of members of Parliament and parties with fewer than 12 MPs, we would not be given any more access to the Board of Internal Economy than the public would get. In other words, the larger parties could still decide that this should not be open to the public and close the meeting of the Board of Internal Economy, and those of us who are members of Parliament would not get any new access to the Board of Internal Economy, any more than the public would get. I find that unacceptable.

Second are the sections relating to the parliamentary budget officer. I provided numerous amendments at committee. My amendments were defeated. There were government amendments to try to deal with what has become very controversial. The Liberals promised in the platform that the parliamentary budget officer would be made an officer of Parliament and given independence, although they promised no more omnibus budget bills either, which they described in the 2015 platform as “undemocratic practice”. Many of the sticky ropes put around the parliamentary budget office, particularly in the first draft of this bill at first reading, reduced the independence of the PBO. Some of those have been improved, but not enough. We still have work plans the PBO has to file. They can make changes as situations change, but it is certainly not the independent officer of Parliament we expected to see.

As my time is running out, I will now turn to the infrastructure bank. If ever there was a piece of legislation that should have been stand-alone to be properly studied, it is the Canadian infrastructure bank. Given the lack of detail and precision, it still might not be as dangerous as it appears to be in some aspects, but we do know that the Auditor General in Ontario found that using privatization schemes for projects, so-called P3 projects, actually boosts the cost. The Ontario Auditor General found an $8 billion increase for the 74 projects studied.

In my last 10 seconds, I will merely say that at third reading, Bill C-44 is moving through this place too quickly. It is not as damaging an omnibus budget bill as the ones we saw in the 41st Parliament, but I urge the Liberal government to be far more cautious and to set a better standard on budget bills.

Kevin Lamoureux – Parliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, I am sympathetic to what the leader of the Green Party is saying. Having said that, in fairness, it is not as much the length as the content of the legislation itself.

One of the examples the member makes reference to is the infrastructure bank. We have had a great deal of debate about the infrastructure bank. One only needs to look at question period to get a sense of the type of debate we have been having and at discussions and so forth, both in committee and inside the House. I find it very difficult to believe that someone could argue that the infrastructure bank is not part of the budget.

That is what the budget implementation bill is all about: to implement measures that were presented in the budget, a good budget, I would suggest, so that Canadians will be able to derive the many benefits of this particular bill passing.

How would the member ultimately articulate that the infrastructure bank is not part of the 2017-18 budget?

Elizabeth May

Mr. Speaker, a budget, as understood by the concept that a Parliament controls the public purse, is about expenditures. Increasingly, budgets are big fat pamphlets that declare what a government intends to do. They are almost an expansion of election platforms or a thicker version of a Speech from the Throne.

A budgetary measure is one that relates to a tax, a tariff, a subsidy: Liberal budgetary measures. The more the budget is used as the big fat spring brochure and the less it is actually about the finances of the country, the more we go down the slippery slope where many things are thrown together and pushed too quickly through Parliament.

Garnett Genuis – Sherwood Park—Fort Saskatchewan, AB

Mr. Speaker, during the Standing Orders debate, I had an opportunity to read the Green Party’s discussion paper on changes to the Standing Orders. I certainly did not agree with all of it, but I thought it raised some interesting ideas.

One of the questions in this discussion is what is meant by an omnibus bill. It is a concept that is actually very different to define. From the government’s perspective, it seems to define a bill as omnibus if it was proposed by a different party, which is obviously an incoherent definition. However, the Green Party discussion paper says that an omnibus bill is one where members might want to vote for some parts but not others. Of course, that is pretty routine in this place, even on a bill that deals with a relatively small number of pages. I can think of the issue around supervised consumption sites, where our party strongly agreed with and wanted to expedite some parts of it but disagreed with others.

I wonder if the Green Party leader can develop this idea of what actually is an omnibus bill. How do we identify it and how do we not identify it, because it is not exactly a clear-cut thing?

Elizabeth May

Mr. Speaker, that is actually a very great question. Omnibus means a lot of things altogether. There was an omnibus bill, for instance, a long one that touched on many pieces of legislation, that enacted NAFTA. We could say that even though there were many different pieces of legislation, and we might have liked some but not other bits, the reality was, and this comes from Speakers’ rulings over the years, it had a unifying theme. It was to the same purpose.

Of course, that was not an omnibus budget bill. That was an omnibus bill changing our legislation to accommodate NAFTA. When we look at an omnibus budget bill, I think all the pieces in an omnibus budget bill, to be legitimate, must relate directly to the fiscal aspects of a budget and not to the various things that were announced on budget day to distinguish them.

On the question of the same theme, a unifying theme, one of the pieces I hope we can pursue, because it was in the government’s proposal for changing our rules, was to give the Speaker explicit powers to split apart omnibus bills when they are clearly different pieces of legislation that are not intrinsic to the spending of the government accounts.

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However, since she did, I would like to point out that while it is commendable that we have extended the boundaries of national parks and have added new ones, it is lamentable that the fundamental purpose of national parks, the highest possible category of protection for ecological integrity, is being systematically undermined by decisions of the government, such as privatizing the hot springs in Banff, creating a privatized ice walk in Jasper, privatizing golf courses in Nova Scotia, and worst of all offences, creating a national park on Sable Island where the primary regulator will be the Canada-Nova Scotia Offshore Petroleum Board, to allow seismic testing and drilling in that park. The national park system is being undermined as they expand its boundaries.

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The bill has many provisions which are non-controversial and would not excite concerns from myself or very many members of Parliament. There are technical changes to the tax code that are certainly acceptable.

However, we are now being told that the process, once again, of including things in omnibus bills is a tradition. There is a spring omnibus budget bill and a fall omnibus budget bill, which means that since 2012, each federal budget has had approximately 800 pages of ancillary legislation, described as an omnibus budget bill, but which in point of fact often has provisions that have absolutely nothing to do with the budgetary process.

Again, I know it is popular on some sides of the House to say that what is happening now is just like what the Liberals used to do. The longest Liberal omnibus bill, which was the one that was brought in 2005 under Paul Martin’s administration, was about 100 pages.

By 2009, we were seeing 800-page omnibus bills from the Conservative minority. Another one in 2010 was closer to 900 pages. Now they are split between spring and fall and the combined legislative package is over 800 pages.

It is certainly anti-democratic. It certainly defies the meaning of a proper omnibus bill, which is many different parts of the bill, all meeting the same purpose, serving the same theme and delivering a policy instrument through the changes in numerous pieces of legislation.

I also appeared before the finance committee to speak to the bill. Under the new rules developed by the Conservatives ensure that at report stage members of Parliament in my position are no longer allowed to submit substantive amendments. They have actually changed the legislative process. For the first time in the history of our country, a majority party has found it so inconvenient to allow smaller parties to put forward views at report stage and has changed the legislative process to deny me my rights.

I have a simple amendment at this point. It is deletions. However, let me speak to Bill C-31 in terms of the pieces that disturb me the most.

Report stage should not go by without it being noted that the Canadian Bar Association, among others, has identified that the trademark changes in the bill will hurt Canadian business. This is found in part 6, division 25. These are completely new changes. As far as anyone can find, the most knowledgeable experts in trademark law were not consulted.

The changes will, on the advice of expert witnesses before the committee, hurt Canadian business. In their view, the change has probably been driven by the internal inefficiency of the trademarks office. It does not meet a public policy purpose. In fact, after some time, we will have to go back to try to fix the mistakes that are being made by ramming through changes in trademark legislation.

We also have changes in hazardous products and materials. Most of those are non-controversial, but they were pushed through and the committee did not even have a chance to hear witnesses on those sections.

The Conservatives were in such a rush that when I brought forward amendments to this, even the experts from the department dealing with that policy area were unable to answer questions. It was because there had been no study and no witnesses. When we got to clause by clause, suggestions for changes to the hazardous products aspect of the bill left members of the committee, as well as technical experts from departments, unable to answer simple questions.

When things are rushed through in an omnibus bill, mistakes are made and things are passed without study. In the case of this legislation, everything in here on hazardous products had no study and no witnesses. That needs to be underscored.

The piece my hon. friend from Victoria mentioned is the most controversial. It will certainly be the piece that will cause the greatest grief to this administration. It could cause real grief and hardship for about a million Canadians who may find themselves swept up, not as U.S. citizens, but described as U.S. persons.

I refer again to the Foreign Account Tax Compliance Act. This is unusual in a lot of ways. My friend from Victoria and I are both lawyers. I no longer practise in a way which anyone would notice. I am not a practising lawyer. I am not insured to practise law, but I know my legal principles.

It is certainly remarkable that U.S. legislation has been accepted in Canada as having extraterritorial application. Canada is prepared to say okay. I do not know if this would be allowed if, say, Iran decided to pass legislation to say that anyone with an Iranian connection in Canada had to be treated differently than other Canadians.

In the case of the United States and this piece of legislation, it is based on the implementation of something called the Intergovernmental Agreement, or IGA. Obviously, the United States is our greatest trading partner and closest friend. This is nothing against the United States, but as a matter in principle of law, one nation’s laws do not apply extraterritorially to citizens of other countries. In this case, we have agreed, as though it were a treaty, to implement the IGA.

What is fascinating about this is that the United States does not treat it as a treaty at all. It has not been sent to the U.S. Senate for ratification. In other words, the U.S. does not treat it as a treaty. The U.S. treats it as sort of a clarification of previous agreements. However, it contains substantive new obligations for foreign countries, and somehow Canada feels that we are obligated to enforce it.

Not all experts in tax law accept that. There was a particularly useful submission to Finance Canada prepared by Allison Christians, who is the H. Heward Stikeman Chair in Tax Law at McGill University, and Professor Arthur Cockfield of Queen’s University. Together they have looked at this and have urged Finance Canada to slow down. They say that the steps we have already taken completely vouchsafe Canadian business and protect Canadian banks. We do not need to push FATCA through, and we certainly should not be pushing it through in an omnibus budget bill.

Their recommendation I think is worth reading into the record this evening:

We are looking at a piece of legislation that imposes on Canada requirements that the U.S. does not have to reciprocate without a treaty having been ratified in the United States.

What are the implications for Canadians? Well, as I just mentioned, Professors Christians and Cockfield talked about charter implications. My office some time ago filed an access to information request. That is how Professor Peter Hogg’s constitutional advice to Finance Canada became public.

Professor Hogg’s letter, dated December 12, 2012, was advice to Finance Canada that what he saw in FATCA definitely violated the Charter of Rights and Freedoms, specifically section 15 of the charter, which says:

This is clearly discrimination, and Professor Hogg went on is his letter to point out the following:

Further on in his letter, he puts it very strongly and clearly:

That is not a tentative conclusion. It is an authoritative conclusion from the most respected constitutional law expert in the land. He wrote the book on constitutional law that I studied when I was in law school. He taught constitutional law to our dear late friend, Jim Flaherty. Jim claimed that he gave him an A, but we cannot verify that.

However, we know that this piece of legislation, I say without qualification, clearly is unconstitutional, and it brings shame to this place to knowingly pass an unconstitutional act.

Raymond Côté: Mr. Speaker, I have to admit that the speech by the member for Saanich—Gulf Islands has left me scratching my head. I do not know why, but at the beginning she seemed to be trying to absolve Liberal governments or indicating that, when they were in power, introducing omnibus bills was less serious than it is today.

We should not ignore the fact that the Conservative government is going much further compared to what we have seen in the past. It is a complete abuse of our institutions. The government is doing away with our right to defend the opinions of our constituents. It is holding that right hostage.

However, I would like to understand what motivated the member for Saanich—Gulf Islands to downplay the Liberals’ actions when they were in power.

Elizabeth May: Mr. Speaker, I thank my colleague.

My motivation is that I like the truth. I think it is important that we tell the truth in this place. It is not true that former Liberal governments have the same record as the Conservatives when it comes to introducing omnibus bills.

When Mr. Martin was prime minister, he introduced a 100-page omnibus bill. It was the biggest in Canada’s history. I believe that the current government’s abusive practice truly threatens real democracy.

I believe that it is important to tell the truth. In recent years under this Conservative government, we have had bigger and more egregious omnibus bills, which are unparalleled in Canada’s history.

Marc Garneau: Mr. Speaker, I thank my colleague from Saanich—Gulf Islands for raising the issue of the Charter of Rights and Freedoms, because we in the Liberal Party are also concerned, based on what we have seen from constitutional experts, that there may be violations of the charter.

Let me get to my question, which deals with FATCA. As we know, under FATCA, Canadian banks must report to the IRS the accounts held by clients who happen to have U.S. citizenship. In Canada there are about a million of them. Otherwise they face the prospect of a 30% withholding tax on their U.S. income.

The government seems to have been very motivated to protect the banks from this. It has come up with some alternate arrangements and changes. As it turns out, the banks would report to the CRA, which would then report to the IRS.

However, there does not seem to be the same concern for the citizens themselves. In fact, it seems that the government has folded its tent here, and it seems quite happy to do the work of the IRS insofar as citizens are concerned.

I would like to hear more from my hon. colleague on why she thinks the banks would be protected but not Canadian citizens with dual nationality.

Elizabeth May: Mr. Speaker, I will try to use less than that in case there are other questions.

I think what has happened here is that there have been threats made by the U.S. administration to sanction Canadian banks. The expert legal advice we have is that the best approach would be to push back on that internationally and to say that there is no right on the part of the U.S. government to penalize banks operating within the United States on the basis of this treaty, which the U.S. has not even ratified itself.

Murray Rankin: Mr. Speaker, my hon. friend was there at the committee stage. Why does she think the government would not accept an amendment that would say, for greater certainty, that the provisions would comply with the Charter of Rights and Freedoms and the Privacy Act, and it would not accept the need for notice of Canadians before their information was released?

Elizabeth May: Mr. Speaker, there were some concessions the Canadians officials gained, such as making sure that RRSPs and other pension and tax savings funds would not be caught under this web. They felt so good about those that they felt they did not dare do anything to protect Canadians and that they got the best deal they could get. They should be listening to legal advice, particularly constitutional law.

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