As you might imagine, Mr. Speaker, I have been in a quandary, unable to imagine exactly how I would put to you the various ways in which I feel my rights are being infringed upon by this turn of events with the finance committee. I would like to reserve the ability to work to put my arguments together for you to present them tomorrow.

I turn to you, Mr. Speaker, as, in your own words in your ruling in April on the matter raised by the member of Parliament for Langley, it is “the unquestionable duty of the Speaker to act as the guardian of the rights and privileges of members and of the House as an institution”. I turn to you as the guardian of my rights and ask that I be allowed the right to present my response tomorrow to the excellent point of order of the House leader of the official opposition.

The post Points of Order – Standing Committee on Finance appeared first on Elizabeth May.

Parliamentary democracy in Canada has been on the ropes for awhile. The Prime Minister does not act as ‘first among equals’, but increasingly like a Roman Emperor. The Prime Minister and his cabinet do not respect principles of the supremacy of Parliament, but act in arrogant and unaccountable ways—denying Parliament key information, even information as essential to good government as basic background to fiscal decisions.

RELATED: Elizabeth May Tables Bill Targeting Excessive Party Discipline

Fundamental to these dangerous trends is the rise in control of MPs by political parties. The political party overlay on Westminster parliamentary democracy is a relatively new and growing phenomenon. Not until the late 1960s did the name of the candidates’ political party appear on the ballot. Simultaneous with that development, the Elections Act was amended to require the leader’s signature to verify that a candidate was properly from the party claimed. A seemingly innocuous change has led to the ability of leaders of political parties to use the threat, that nomination papers will not be signed, to keep their MPs in line.

And the role of leaders of parties has started to ape the US system to such an extent that federal (and provincial) election campaigns are run as though the ballot choice was the election of a Prime Minister (or Premier). We do not elect Prime Ministers in Canada, but this confusion is undermining the essence of representative democracy.

Compounding these trends, which to greater or lesser degree pre-date Stephen Harper’s administration, we now have the political arm of the Prime Minister’s Office (PMO) reaching into previously off-limit areas. The PMO operatives are bullying the civil service into corrupting the policy making process with blatant spin and doctoring of evidence.

When Kevin Page, Canada’s first Parliamentary Budget Officer (PBO), spoke on April 4 at a Green Party sponsored lecture at UVic (well worth watching in its entirety on Youtube: http://www.andrewjweaver.ca/video_an_evening_with_kevin_page), he noted that ‘every Parliamentary institution is under assault.’ His two take-away messages: that the control of the public purse must return to the House, and that decisions must be based on evidence.

The Court Ruling

For a while, knowledgeable commentators have taken to pondering if Canadian democracy has a pulse. Then on April 22 and 23, two unrelated events took place, quickening the pulse of Canadian democracy.

The first was the ruling of the Federal Court of Canada on the lawsuit launched by the PBO. Kevin Page refused to accept the refusal of the Clerk of Privy Council, shamefully telling the PBO that none of what he wanted was available; accepting commands from the PMO and denying that the impacts of the falling of the axe must be transparent to MPs and to Canadians.

And so Kevin Page went to court. The court ruled that the PBO was within its mandate to request information about the impact of the cuts in the 2012 budget. The Federal Court confirmed the supremacy of Parliament, the right of each MP to have access to information: about where the budget cuts landed and what effect they have on government programmes. In fact, the court ruled this information should be available to any back-bencher.

Thanks to Kevin Page, the right of any MP, and the PBO itself, to access documentation about government finances has been confirmed. The court went on to find that Page had not fully demanded the information after the clerk said he couldn’t have the information. So, on that technicality, it might appear Page lost. But the right to access that information has led the acting PBO to demand the information.

The SO31 ‘Game’ – Not

The very next day, the Speaker ruled on a recent complaint by Mark Warawa, Conservative MP from Langley, BC. To understand his complaint, you need to know that for 15 minutes every day in the House of Commons, there is something called Members statements (under Standing Order 31, so sometimes called “SO31s”). An SO31 allows a member 60 seconds to make an uninterrupted statement. They are usually about events in the riding, or eulogies for recently departed local heroes. Lately, the Conservatives have mis-used the opportunity for prepared attacks on the NDP claiming they want a $21 billion carbon tax.

Each party whip coordinates which MPs are going to make their SO31s. Apparently, the Conservative whip also vets (and censors) the statements. One day, Mark Warawa was told his statement was unacceptable and his chance to speak was withdrawn. He did something unprecedented in the life of Mr. Harper’s reign. He complained to the Speaker.

Over a few weeks, many MPs supported the complaint, making the case that MPs have the right of free speech. Of course, I spoke in support of Warawa’s complaint, but so did about 7 other Conservative MPs.

The Chief Government Whip argued that the Speaker was a mere ‘referee’ and that the party leader and his operatives were like the coach with the right to decide which players to play.

On April 23, Speaker Scheer’s ruling supported the right of free speech. He completely rejected the sports metaphor and confirmed that only the Speaker has the right to recognize MPs. The convention of the party whips in giving the Speaker a list of MPs to call on was only adopted to assist a previous speaker who had difficulty remembering names (or so goes the story).

The Speaker’s ruling confirmed the absolute right of Members of Parliament to free speech. And it is the duty of the Speaker to maximize that right of free speech. The Speaker, similar to the PBO court ruling, went on to find that Mark Warawa had not tried to speak, by catching the speaker’s eye and trying to get the floor. As such, the Speaker found his rights had not been infringed.

Nevertheless, two rulings, back to back have confirmed the absolute right of free speech and of the right of all MPs to have fiscal information essential to the role of the Parliament as a whole to govern.

We have a pulse!

The post Canadian democracy – pulse found! appeared first on Elizabeth May.

Some hon. members: Hear, hear!

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The post Presence in Gallery – Raffi appeared first on Elizabeth May.

Please accept this letter as further background to the letter I submitted on Friday, October 26, 2012 requesting an Emergency Debate on the investment treaty between the Peoples’ Republic of China and the Government of Canada, signed September 9, 2012, and tabled before this House on September 26, 2012.

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In that letter I briefly set out the accepted tests set out in Standing Order 52, submitting that the matter is indeed within the “administrative responsibilities of government,” is a specific matter of obvious and acute national importance to Canada, and is an urgent matter.

I recognize that it is traditional for a Speaker to rule on such requests without giving reasons, and further that on such matters, you are not bound by precedent.  Looking through recent emergency debates, we have had debates on food safety and on drug shortages. In 2009, there was an emergency debate on the Ottawa bus strike, while going further back, in 2003 there was an emergency debate on the approaching war in Iraq, and still further back, in 1989 the House debated the slaughter in Tiananmen Square.  This short review is only to suggest that the matter constituting an emergency is not confined to any one suite of issues.  They can be national, or global; concerned with public health, or local labour concerns.

As my last letter confirms, I will move adjournment later today on the same matter a second time. In doing so, I am inferring that your reasons for rejecting my request October 1st could be related to this portion of the rule: “and the Speaker shall also have regard to the probability of the matter being brought before the House within reasonable time by other means.” 

I submit that the situation has changed between October 1 and October 29, 2012.  As noted, all Opposition Days available to the Official Opposition and the Liberal Party have now been used on other issues.

No doubt, the Minister of Trade is likely to take the same position that he has in response to my questions, and those of other Opposition MPs, in Question Period that if the treaty is to be debated, the option for debate is solely in the hands of the Opposition Parties, or rather with the two out of four Opposition Parties in the House with the right to utilize Opposition Days.

To take aim at this presumption, let me first review the nature of this treaty and of the approval process.

As a matter of international treaty making, and in the absence of any necessity for implementing legislation (as is the case with this treaty), it is true that it is possible to ratify the treaty with no debate or vote in the House.  However, this strict interpretation of what is legally possible runs against a tradition of respect for Parliament in the implementation of treaties. 

Professor Peter Hogg pointed out in Constitutional Law of Canada:

Despite the absence of any constitutional obligation to obtain parliamentary approval, it has been the practice of Canadian governments to obtain parliamentary approval of the most important treaties in the interval between signing and ratification.

(Toronto, Carswell and Company, 1977, p.184)

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In this case, the interval between signing and ratification, is September 9 until (at the earliest) November 2, 2012.  Following the convention described by Professor Hogg in 1977, the current administration put in place a requirement to table the treaties with the House between signing and ratification for 21 sitting days.  For minor treaties, the tabling process is adequate, but the tabling process should not replace the convention that on important treaties, parliamentary approval is appropriate.

What can be the purpose of a rule that requires the treaty be placed before the House for 21 sitting days, if there is to be no opportunity for review prior to ratification? 

Given the precedent in constitutional law described by Professor Hogg, it is clear the onus to allow Parliamentary review for significant treaties is that of the Privy Council Officers, not of the opposition parties.    Nevertheless, even if the proposition that the onus rests with the larger Opposition Parties, it certainly deprives members of the two recognized parliamentary parties with less than twelve members, as well as the two recognized Independent MPs of any opportunity to debate the issue, if the emergency provision is unavailable.

Returning to Professor Hogg’s rule, would we consider the Canada-China Investment Treaty to qualify as one that is “most important”?

If ratified on November 2, Friday of this week, as the Privy Council is entitled to do, Canada will be bound by its terms for a minimum of 15 years to 31 years.  Exiting the treaty is far more difficult than withdrawing from NAFTA (which went to a vote in the House) or the Kyoto Protocol (which is the same class of treaty as this one, and which went to a vote.)  To exit the China-Canada Investment Treaty one year written notice is required and any existing investments from China in Canada at the time of withdrawal are covered by the agreement a further 15 years.

The scope of the agreement is massive.  The Peoples’ Republic of China is entitled to make claims for damages against the Government of Canada for decisions at sub-national levels of government for any decision China regards as “arbitrary.”  The decisions that give rise to multi-billion dollar complaints can be those of municipal, provincial , territorial or federal governments, or from decisions of our courts. The nature of the complaint is not limited.  It need only be claimed as “arbitrary.”

It is clearly an important treaty and the Prime Minister and Privy Council should have made provisions for a parliamentary review and vote.  Failing that, the tabling of the treaty for 21 sitting days becomes a ritualistic denial of democracy.

As noted, no Opposition Day debate took place on this topic of the four available since September 26, 2012.  As well, efforts by Opposition members of the Trade Committee to hold hearings on the treaty were unsuccessful.  Only one hour was made available in committee to hear from technical experts.

In sum, whereas on October 1, there remained a hypothetical potential for a debate on this treaty to take place, on October 29^th, there is none.  I cannot imagine greater urgency than being four days from the ratification of a treaty that will bind us for decades with the potential to undermine our domestic laws.     

Please allow this one chance for the House of Commons to probe the implications and exchange views on a major investment treaty with the world’s emerging superpower.

Yours sincerely,

Elizabeth May, O.C.
Member of Parliament

The post Letter to the Speaker of House of Commons asking for an emergency debate on FIPA appeared first on Elizabeth May.

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The Acting Speaker (Bruce Stanton): The member for Saanich—Gulf Islands will know that members, in the course of their comments, can explore any number of ideas with which they can refer or relate to their comments in the course of their speech. I am sure the hon. parliamentary secretary will be well into summarizing toward the end of her comments, in any case, and I am sure she will get around to the question that is in front of the House.

The post Point of Order – Jobs and Growth Act, 2012 (Bill C-45) appeared first on Elizabeth May.

“…budget implementation acts…have morphed from short bills dealing with minor items…to enormous bills”.

He said:

These omnibus budget implementation bills subvert and evade the normal principles of parliamentary review of legislation.

As such, they are at the heart of respect for Westminster parliamentary tradition. I am not going to cite any specific examples of the misuse of an omnibus bill, of which there have been many, but most of them have been in recent years: the 700-page omnibus bill of 2009, the enormous omnibus bill of 2010 and, of course, the most recent one this spring.

I think my hon. friend’s speech has already answered the question of whether we need to get this to a committee. How quickly can we get this to a committee? When can we set these limits?

Nathan Cullen: Mr. Speaker, there are two places where these limits get to be set. One is that, with the good intentions and hope of all members of Parliament, we would suspect that the government would be open to this. This is something that can happen through the Conservatives’ voting for this motion today, and they clearly are vitriolic in their opposition to anything that would curtail any of their power whatsoever, any sensible or reasonable conversation about limitations on power. The Conservatives think it might need to be absolute.

The second place, and this is an important one, is the effort we make beyond this chamber to talk to our constituents. We know some Conservatives actually heard from their constituents and agreed with them that the last iteration of this omnibus bill, this abuse of power, was something that should have been broken up, that it was incomprehensible and not justifiable in its massive form. The member of Parliament from British Columbia who had that moment of reflection, new to the Conservative caucus, had his mind changed for him within a number of hours. I lament that, because we should all be meeting with our constituents and reflecting their interests, not reflecting what the PMO thinks back to them, which is so common a case with my Conservative colleagues.

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Hon. Peter Van Loan: Mr. Speaker, the hon. member says that we should not be allowed to speak about a carbon tax in the House now. Every member of Parliament is responsible to his or her constituents who, if they were faced with a $21.5 billion carbon tax, would have to pay that and their personal lives would be affected by it. Nothing could be more important for a member of Parliament than to stand up for constituents on issues like taxes. I cannot imagine why she would want to shut down that debate, other than she does not like it.

The Speaker: There have been previous Speaker rulings on what S. O. 31s should and should not be used for. I will go back and look at the particular S. O. 31 that the member has complained about and, if necessary, I will come back to the House after the Thanksgiving break.

The post Points of Order – Statements by Members appeared first on Elizabeth May.

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They are getting really quite despicable, for lack of a better word. I refer in particular to one yesterday by the member for Wild Rose, who used his S. O. 31 to attack me. In fact, I was flabbergasted by this. I am making more of a generic point that they are going downhill.

Hon. Peter Van Loan: Mr. Speaker, for the benefit of the hon. member, I will read to her what Standing Order 31 actually says. It states:

A Member may be recognized, under the provisions of Standing Order 30(5), to make a statement for not more than one minute. The Speaker may order a Member to resume his or her seat if, in the opinion of the Speaker, improper use is made of this Standing Order.

There is nothing saying that the content must be local, there is nothing saying it must be national, there is nothing saying that it cannot touch on policy. There is broad scope and range to it. In fact, there is no limitation whatsoever, other than the Speaker’s normal ability to determine that something is unparliamentary. Therefore, I fail to see what she is complaining about.

I would add one final point. I can understand, perhaps having fewer members than some of the other parties, that she is frustrated that other people get to say more than her, but that is not a reason to try to suppress the rights of others to have their say in this place.

The post Points of Order – Statements by Members appeared first on Elizabeth May.

Elizabeth May: Mr. Speaker, I think this is a critical issue.

I have been attentive to this debate. I have already made my submissions on the substantive question of privilege and do not intend to enter into that again. I have had my opportunity. However, the hon. member for Skeena—Bulkley Valley made his point in an approximately 20-minute statement of argument around that question of privilege. I responded briefly. Now the Liberal Party in the House has chosen this moment to provide its guidance.

The Speaker has not yet ruled on that question of privilege. Falling back on parliamentary tradition, it seems to me that this is akin to what we would have in the British Commonwealth tradition of natural justice. One must allow all parties, in a timely fashion, to put forward their argumentation.

I agree, it would not be appropriate to talk forever. On the other hand, I think it is awkward for the Speaker to comment on the quality of a presentation until the hon. member for an official party of this House has concluded his or her remarks. This is not to criticize you, Mr. Speaker, I never would, but I think it is an important point.

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Mr. Speaker, I rise on a point of order related to Bill C-38.  My point of order is based on Standing Order 68(3):

“No bill may be introduced either in blank or 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 and is therefore “imperfect” and must be set aside.

The first observation deals with the nature of the “shape” of a bill at First Reading.

“ ‘Shape,’ according to the Oxford Concise Dictionary, is a synonym for ‘form.’  Therefore a bill according to Standing Order 69 must not be in imperfect form.  The question of a bill’s form is extensively dealt with in our parliamentary authorities, such as Beauschene and Erskine May…” (p.15479)

(Per Harvie Andre (Calgary Centre) March 1, 1982, referring to same Standing Order as previously numbered SO 69).

Having said I do not intend to argue the bill must be split as being overly large for an omnibus bill, I do believe 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 (January 26, 1971):

“However, where do we stop? Where is the point of no return?  The honourable member for Winnipeg North Centre, and I believe the honourable 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 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?” (p.2768).

This is a critical question, but for another time and for the House itself.  Rulings from Speakers Sauvé, Fraser, Parent, and Milliken have confirmed Lamoureux’s misgivings, but as well 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.

My point of order does not rest on argumentation that 420 pages is too long for an omnibus bill, nor that amending, repealing and/or re-instating seventy 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 honour and 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:

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.’  One of the reasons cited for introducing an omnibus bill is to bring together in a single bill all the legislative amendments arising from a single policy decision in order to facilitate parliamentary debate.” (at p.724, emphasis added)

Citation 626 of Beauchesne’s 6^th edition (quoted by Speaker Fraser at p. 9148, April 1, 1992):

“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 content of a bill. There must be a theme relevant to and subject to the umbrella which is raised by the terminology of the long title of the bill.”(Emphasis added)

Per Speaker Fraser June 8, 1988 (p 16255):

“The essential defence of an omnibus procedure is that the bill in question, although it may seem to create or to 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.”  (citing Hon Member for Windsor West in debate)

Speaker Fraser went on to say, “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.” (June 8, 1988, p.16255)

It is worth noting that while the 1982 Energy Bill was split through the action of the House, due to the determined action of the Opposition, and not by the Speaker, Speaker Fraser holds the Energy Bill up 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 the context in 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 the 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 the 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 from the House and based on the practice to this day, it should be allowed to proceed without interference from the Chair.”  (p. 16258, June 8, 1988)

It is clear that the Speaker is not (at present and in the 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 its scope.  It is also clear that a 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 is “imperfect.” It fails the tests of being a proper omnibus bill:

1. It fails to have a central theme, “one basic principle or purpose,”  in order to be legitimized as a reasonable basis for debate and study;
2. It fails to provide a link between items in C-38 and the budget itself ;
3. It fails by omitting 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 honourable members speaking for Privy Council assert are in C-38 further confirms the bill is imperfect, unready and requiring a re-working.

I will take each of these failings in turn.

Bill C-38 has no theme, no basic principle

Firstly, 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 that its theme is the budget.  It is titled “An act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.”

A budget is no longer 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 that can be considered a theme.

Commentators have warned that this trend undermines the role of Parliament in proper oversight of the public purse and of individual pieces of legislation.  Professor Ned (C.E.S.) Franks, Professor Emeritus at Queen’s University, wrote in 2010 that:

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. (“Omnibus bills subvert our legislative process,”  Globe and Mail, July 14, 2010).

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 tests 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, do not create affirmative approval of the so-called omnibus budget bills of 2009 and 2010.

Returning to the first test of whether the bill is properly an “omnibus” bill, Bill C-38 does not have one central theme.

Even if one accepts that the budget document of March 29, 2012, 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 in 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 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 the Westminster Parliamentary tradition and our role as Parliamentarians would not have been so egregiously abused.

As it is, I maintain that C-38 fails to meet the first test to ascertain whether it is properly an omnibus budget bill —   whether the measures in C-38 are included in the budget itself.  The following examples establish that C-38 fails to provide a link between items in C-38 and the budget itself.

Aspects of C-38 not found in budget 2012

While “streamlining,” eliminating duplicative reviews and time-limits for of reviews 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 the Canadian Environmental Assessment Act, 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 re-definition 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 retreat from federal responsibilities for which no foundation was laid in the budget.

Further, the Fisheries Act was not mentioned in the budget at all.  Other than reductions in available funding for the Department of Fisheries and Oceans (at p. 266, Budget 2012), enhanced funding for First Nations fisheries (p. 150, Budget 2012), and increased funding for fisheries science (at p. 120, Budget 2012), 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 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 fisheries policy under three different Prime Ministers from 1985-2006) to speak with one voice in urging the act be withdrawn.  And yet, the proposed amendments to the Fisheries Act were not mentioned at all in the Budget.  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 (found in Division 9, Part 4 of C-38 at p. 241) are perhaps sensible.  They would allow Parks Canada Agency park wardens to enforce other acts for other agencies.  Regardless of whether such changes are offensive or not (and without further study of the long-term implications for Parks Canada’s core mandate, I cannot say) is irrelevant to the main point – these changes have nothing whatsoever to do with Budget 2012.  Parks Canada’s budget is reduced (p.264) and (at p, 185) a new National Park is announced (without funding) for the Rouge Valley, near Toronto.  Neither of these budgetary mentions have any connection to the C-38 amendments of the Parks Canada Agency Act.

Amendments to the Canada Oil and Gas Operations Act (Part 3, Division 3) to give the National Energy Board authority over pipelines and power lines crossing navigable waters (removing the 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 in the budget was to provide more funding (p. 183, Budget 2012).   If the act governing species at risk required overhaul to deliver on this aspect of the budget, why was it never mentioned in the budget?  There is no nexus between the one reference to species at risk in Budget 2012 and the subsequent legislative changes in 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.

The repeal of the  Kyoto Protocol Implementation Act could not 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 Environment, has all the powers and authorities necessary to present legislation to this House to repeal the Kyoto Protocol Implementation Act.  And the Conservatives have a majority of seats in both places, making it a foregone conclusion that properly tabled legislation will meet with Parliamentary approval. Should the Privy Council officers respond that the “jobs, growth and long-term prosperity” agenda is related to repealing this act, they must be called upon to make proof of that assertion.  The KPIA provisions make its terms moot with the withdrawal of Canada from the Kyoto Protocol, through the action announced by the Minister of Environment in December 2011.  The repeal of the act included in C-38 is further evidence that the act has no central theme or purpose or principle.

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

One of the most serious changes in C-38 relate to a new supremacy of Privy Council to over-ride decisions of the National Energy Board (Division 2, Part 3, s. 54).  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 C-38.

The elimination of the office of the Inspector General under the Canadian Securities Intelligence Service has no connection whatsoever to the budget (Division 15, Part 4).  Neither are the changes (found in the same section) to consolidate the responsibility for reviewing the activities of the Canadian Security Intelligence Service, or CSIS, into the Security Intelligence Review Committee foreshadowed in the Budget2012. To attempt to find a theme that embraces repealing the KPIA, weakening of fisheries habitat protection and elimination of 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 found at (Division 37, Part 4).

The repeal of the Fair Wages and Hours of Labour Act is not referenced in Budget 2012. The repeal of this Act could have widespread implications.  It is not related to other aspects of C-38 and it further drives home the point that there is no “theme” to C-38.  (Division 23, Part 4).

One of the most profound changes to Canada contained in 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 (Division 12, Part 4).   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 the 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.  But, Mr. Speaker, this measure is not linked to the policy direction of the budget. It is not referenced. And as such, it is further evidence that C-38 is not a proper omnibus budget bill.

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 not link to Budget 2012.

Items that Privy Council Officers believe to be in C-38, that are not there

The third ground on which I make the case that C-38 violates Standing Order 68(3) is that it fails by omitting 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 honourable members speaking for Privy Council assert are in 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 C-38 in which Members of the Privy Council and Conservative Members of Parliament speak favourably to aspects of the legislation that are 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 C-38 are not substantive; that statements made in debate cannot add to the evidence that 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, Mr. Speaker, 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 in the ranks of 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 back-benchers as well.

In relation to claims of greater tanker and pipeline safety, I submit the following statements in debate at Second Reading of Bill C-38:

“Mr. Speaker, the bill will do a great deal to protect the environment… As I mentioned in my remarks, tankers will have to be double-hulled, there will be mandatory pilotage, there will be enhanced navigation, there will be aerial surveillance and additional measures will be taken in particular cases when necessary.”  Minister for Natural Resources, May 2, 2012 ( at 1610)

“The legislation before us…. (It) would provide new funding in support of  pipeline and marine safety…..It would provide $35.7 million over two years to further strengthen Canada’s tanker safety regime, including ensuring appropriate legislative and regulatory frameworks related to oil spills and emergency preparedness and response.” Minister of the Environment, May 3, 2012, (at 1125.)

“We would enhance pipeline and marine safety through initiatives such as a strengthened tanker safety regime and a substantial increase in the number of inspections for oil and gas pipelines.” Hon. Member from Prince George,  May 4,2012, (at 1255)

“I would like to speak directly to the budget bill…. We will strengthen pipeline safety.  Every Canadian would support strengthening pipeline safety. … The reality is that pipeline inspections will increase from 100 to 150 inspections. I am sure that is something that everyone in this House would support.”  Hon. Parliamentary Secretary to the Minister of International Trade, May 7, 2012, (at 1240.)

“There is an additional $35.7 million proposed over the next two years to further improve the safety regimen for oil tankers and pipelines, to support ongoing environmental studies and better prepare for emergencies… The act also proposes an additional $13.5 million over two years to support the work of the National Energy Board that we may further reduce any risk, with more oil and gas pipeline inspections, moving from 100 to 150 per year, and double the number of annual audits designed to discover and resolve potential issues before they become a concern for Canadians…These unparalleled safety precautions for oil tankers were recently the subject of an excellent series in North Shore Outlook, a community newspaper serving the a region in the riding I represent.” Hon. Member for West Vancouver-Sunshine Coast- Sea to Sky Country, May 8, 2012

(just before 1055 and on.)

“…the safe navigation of oil tankers is very important to our government. Oil tankers have been moving safely and regularly along Canada’s west coast since the 1930s. For example 82 oil tankers arrived at Port Metro Vancouver in 2011.  Nearly 200 tankers visited the ports of Prince Rupert and Kitimat over the past five years,  They all did this safely….Canada’s regulatory system had a lot to do with that.  Oil tankers in Canada must comply with the safety and environmental protection requirements of international conventions, and, while in Canadian waters, with Canada’s marine safety regulatory regime….These requirements include double-hulling of ships, mandatory pilotage, regular inspections and aerial surveillance. In fact, in 2011, almost 1,100 inspections were carried out across Canada, 147 of them on oil tankers.

“We have a strong system, but any responsible government must continually work to make it stronger.  That is why economic action plan 2012 includes further measures to support responsible energy development, including: new regulations which will enhance existing tanker inspection regime by strengthening vessel inspection requirements, a review of handling requirements for oil products by an independent international panel of tanker experts, improved navigational products, such as updated charts for shipping routes, research to improve our scientific knowledge and understanding of risks and to manage the impacts on marine resources habitat and users in the event of a marine pollution incident, and much more.”  Hon. Member for North Vancouver, May 10, 2012, (at 1115.)

“I have heard much about the concern of tanker traffic specific to our west coast.  Oil tankers have been moving safely and regularly along Canada’s west coast since the 1930s. For example 82 oil tankers arrived at Port Metro Vancouver last year, and over the past five years nearly 200 oil and chemical tankers visited the ports of Prince Rupert and Kitimat.  They all did so safely.

“We propose to invest $13.5 million over two years to strengthen pipeline safety. We will do this by increasing the number of inspections, moving from 100 to 150, and we will double the number of annual comprehensive audits from three to six, to identify issues before incidents happen. Why? Because we value the importance of economic stewardship.”  Honourable Member for Kootenay-Columbia, May 10, 2012, at 1200

Mr, Speaker, there is absolutely nothing in Bill C-38 that advances tanker safety or pipeline safety.  The budget document itself mentions that such changes are planned, but C-38 omits any reference to them. Ironically, after the litany of measures never mentioned in Budget 2012 that are included in C-38, in this case, the budget promises these changes, but C-38 has not a word about pilotage or double-hulled tankers or increasing pipeline inspections.

We have a choice here: either to conclude that ministers and other honourable members were deliberately misleading the House, or, and I submit this is the only sensible conclusion, that there are errors in C-38 that have omitted important sections.

In the matter of environmental assessment, ministers and other honourable members also asserted specific language to the new provisions to allow the complete substitution of federal environmental review with a provincial one. The specificity of language and its repetition suggest they honestly believe the legislation is drafted in a way that it is not.

“It would allow provincial environmental assessments that meet the substantive requirements of the Canadian Environmental Assessment Act to be substituted for the federal environmental 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.” Minister for Natural Resources, May 2, 2012 at (1610)

“Mr. Speaker, the whole point of the exercise is to ensure that we have a robust environmental review of major projects….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.” Minister for Natural Resources, May 2, 2012 at (1615)

“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 at the provincial level, we can substitute one for the other, but they have to be at least equal. “ Honourable Member for Burlington, May 3, 21012, at 1635

Mr. Speaker, while substitution of reviews is contemplated in Bill C-38, there is not a requirement for “an identical level of review,” for it “to be at least equal,” nor “for meeting federal requirements.”  The summary pages describing the legislation call the substitution “equivalent,” but that word appears nowhere in the operative sections of 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:”

“If the Minister is of the opinion that a process for assessing the environmental effects of designated projects that is followed by the government of a province …that has the powers, duties or functions in relation to an assessment of the environmental effects of a designated process would be an appropriate substitute, the Minister must, on request of the province approve the substitution.” (s 32)

These examples of claims for subject matter not covered at all in C-38 (pipeline and tanker safety), as well as for subject areas included, but without the strength of criteria repeatedly referenced in debate, are further evidence that the legislation is imperfect.  I will not accept that so many honourable members spoke in an effort to mislead the House.  The members clearly believe that 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 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 Honourable Members.  It is imperfect and unready and should be withdrawn.

Conclusion

In conclusion, Mr. Speaker, I wish to put forward a further compelling reason with which I beg that you reject C-38 as violating the Standing Orders of this place.  And that is this: the respect of the body politic for this institution is at stake.  I recall the words of the late journalist, a great Canadian, James Travers.  We were both on CBC Sunday Edition in the spring of 2009, discussing the threats to our institutions.  He commented that we really no longer have democracy in Canada. He said (and I am paraphrasing) “you can visit Ottawa and what you’ll see is a democracy theme park. The buildings are still there. You can tour Parliament, but you will no longer see democracy.”

I refuse to accept that such 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 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 C-38, should, to respect Westminster Parliamentary democracy, be brought out of the shadows, and be tabled separately, and studied on their own merit.

To allow C-38 to masquerade as a legitimate omnibus bill will bring our institutions into greater disrepute.  C-38 is widely understood in the popular media as a fraud.

Andrew Coyne wrote in the National Post that C-38 “is not remotely a budget bill, despite its name…,” further noting that while throwing non-budgetary matters into a budget bill is not unknown, in C-38 “the scale and scope are 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.” (“Bill C-38 shows us how far Parliament has fallen,” National Post, April 30, 2012)

John Ivison in the National Post, noting that the excuse for the omnibus approach is the “urgency” to move projects to approval, maintained “But it is 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 in order to minimize the political fall-out. It was a dumb move and it has blown up in their faces… condemned by all but the most blinkered of partisans.” (“Liberty lost in stampede to pass Tories’ omnibus budget bill,” National Post, May 7, 2012).

Terry Glavin wrote, “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,” (“Something’s fishy with Bill C-38,” Ottawa Citizen, May 7, 2012).

Dan Gardner wrote: “…the government’s mammoth Bill C-38, which is theoretically the budget implementation bill…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 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.” (“Tories governing from the extreme centre,” Ottawa Citizen, June 1, 2012.)

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 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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