Elizabeth May says C-38 is Imperfect and she is right

from: http://www2.macleans.ca/2012/06/04/point-of-order-2/


‘To allow C-38 to masquerade as a legitimate omnibus bill will bring our institutions into greater disrepute’
by Aaron Wherry on Monday, June 4, 2012

Elizabeth May has just risen in the House on a point of order to argue that C-38 is an “imperfect” bill—see Standing Order 68(3)—and should be ruled out of order by the Speaker.

Below, the prepared text of Ms. May’s point of order.

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 6th 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 Security 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, 2012, 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.

This is how the speaker responded:



The Speaker: previous intervention next intervention
    I am now prepared to rule on the point of order raised on June 5, by the hon. member for Saanich—Gulf Islands regarding the form of Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.

[Translation]

    I thank the hon. member for Saanich—Gulf Islands for having raised the matter, as well as the hon. Leader of the Government in the House of Commons, the hon. House Leader of the Official Opposition, the hon. House Leader of the Liberal Party, and the hon. members for Winnipeg Centre, Winnipeg North and Thunder Bay—Superior North for their comments.

    The foundation of the arguments brought forward by the member for Saanich—Gulf Islands is that Bill C-38 has not been brought forward in a proper form and is, therefore, imperfect and must be set aside. Specifically, the member relies on Standing Order 68(3) which states that, “no bill may be introduced either in blank or in an imperfect shape”.

[English]

    In laying out her case, she argues that in its current form the bill fails the test of being “a proper omnibus bill”; first, because it lacks one central theme, that is “one basic principle or purpose”; second, because it fails to provide a link between certain items in the bill and the budget itself; and third, because it “omits actions, regulatory and legislative changes” that are purported to be included in it by representatives of the government.

    In response, the government House leader indicated that Bill C-38, as a budget implementation bill, had as its unifying theme the implementation of the budget. This, he reminded the House, arose from the adoption of the budget by the House. To use his words, “The budget sets the clear policy direction and the budget implementation bill implements that direction” and is “a comprehensive suite of measures designed to ensure jobs, economic growth and long-term prosperity”.

[Translation]

    Before I address the arguments put forward in this case, it is perhaps useful to remind members of what the provisions of Standing Order 68(3)—the basis of the point of order raised by the Member for Saanich—Gulf Islands—refer to. House of Commons Procedure and Practice, Second Edition, at page 728, states:

[English]

        Since Confederation, the Chair has held that the introduction of bills that contain blank passages or that are in an imperfect shape is clearly contrary to the Standing Orders. A bill in blank or in imperfect shape is a bill which has only a title, or the drafting of which has not been completed. Although this provision exists mainly in contemplation of errors identified when a bill is introduced, Members have brought such defects or anomalies to the attention of the Chair at various stages in the legislative process. In the past, the Speaker has directed that the order for second reading of certain bills be discharged, when it was discovered that they were not in their final form and were therefore not ready to be introduced.

[Translation]

    Furthermore, at pages 730 to 734, members can find a description of the various elements that comprise a bill. A bill must have a number, a title, an enacting clause, and clauses. It may also have a preamble, interpretation and coming-into-force provisions, and schedules.

    Having reviewed Bill C-38, I can assure the House that it contains all of the required elements and is therefore in proper form in these respects. In addition, the requisite notice was given for its introduction and the bill was preceded by a ways and means motion, as is required. It is also duly accompanied by a royal recommendation.

[English]

    Now the member for Saanich—Gulf Islands has taken the argument of imperfect shape one step further in stating that Bill C-38 is not in the proper form and that it is not, in her words, “a proper omnibus bill”.

    Here again it is perhaps useful to return to House of Commons, Procedure and Practice, second edition which states, at page 724, in reference to omnibus bills, “Although this expression is commonly used, there is no precise definition of an omnibus bill”.

[Translation]

    It then goes on to state that:

        In general, an omnibus bill seeks to amend, repeal or enact several acts, and is characterized by the fact that it is made up of a number of related but separate initiatives. 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.

[English]

    At page 725, O'Brien and Bosc goes on to state:

        It appears to be entirely proper, in procedural terms, for a bill to amend, repeal or enact more than one Act, provided that the requisite notice is given, that it is accompanied by a royal recommendation (where necessary), and that it follows the form required.

  + -(1210) 

[Translation]

    Naturally, there have been a number of rulings on the subject. Among these is a ruling given by Speaker Sauvé on June 20, 1983, which can be found at pages 26537 and 26538 of Debates, where she stated that:

[English]

    —although some occupants in the Chair have expressed concern about the practice of incorporating several distinct principles in a single bill, they have consistently found that such bills are procedurally in order and properly before the House.

[Translation]

    On April 11, 1994, Speaker Parent faced similar objections to another budget bill—C-17—when a member argued that the House was being asked to take a single decision on a number of unrelated items. As can be found at pages 2859 to 2861 of the Debates, the Speaker disagreed, noting that in the Chair’s opinion:

[English]

    —a common thread does run through Bill C-17; namely, the government's intention to enact the provisions in the recent budget, including measures to extend the fiscal restraint measures currently in place.

    The second argument raised by the member for Saanich—Gulf Islands, which is irrevocably linked to her first argument regarding the need for a central theme, was that there were elements found in Bill C-38 that were not provided for in the budget. It would be useful, at this juncture, to remind members that the long title of Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures, is very broad, as is typical in bills of this kind. Clause 1 of the bill, which contains its short title, provides that “This act may be cited as the Jobs, Growth and Long-term Prosperity Act” and thus restates the very broad scope of the measure. O'Brien and Bosc, at page 731, notes that the long title sets out the purpose of the bill, in general terms, and must accurately reflects its content.

     Speaker Fraser, on June 8, 1988, at page 16257 of the Debates, also referred to the use in our practice of generic language in bill titles and stated that, “every act being amended need not be mentioned in the title”.

    If the long title had been specific and limited in scope, then the hon. member might have had a sounder basis for claiming that the bill went beyond what was contained in the budget. However, the title of Bill C-38 is wide in scope, and therefore, it is an accepted practice that the content of the bill could be similarly broad.

[Translation]

    The third point raised by the member for Saanich—Gulf Islands relates to her contention that representatives of the government, during debate at second reading of Bill C-38, claimed that the bill gave legislative effect to policy decisions that are not in fact contained in the bill.

    What the member is raising here is perhaps a question of relevance in debate or a dispute as to facts. As Speaker Milliken stated at page 5411 of the Debates on October 27, 2010:

[English]

        It is not the Speaker's role to determine who is right and who is wrong. I know there are disagreements over some things that are said in this House, but it is not up to the Speaker to decide either way.

    It may well be that members, in their remarks, spoke about elements of the government's fiscal or regulatory policy intentions that were not contained in the bill, or that may flow from the bill if it is passed. These are matters that are beyond the purview of the Speaker. Given the generous latitude for relevance which is typically accorded to members on such wide-ranging debates, including that on the budget, it is in keeping with parliamentary practice that issues raised in debate would not exactly mirror the contents of legislation in every respect. As such, while these concerns are certainly pertinent to the wider debate surrounding the bill, they do not, in and of themselves, point to a technical deficiency in the bill itself.

[Translation]

    As the member for Saanich—Gulf Islands noted, my predecessors have frequently been called upon to rule on matters pertaining to omnibus bills. In this regard, her argument that, “… there is a compelling case that the House must act to set limits around omnibus legislation” is one that has been made before. On these occasions, the key question faced by Speakers has been: What is the role of the Chair in dealing with such matters?

[English]

    As Speaker Sauve said on March 2, 1982 at page 15532 of the Debates:

        It may be that the House should accept rules or guidelines as to the form and content of omnibus bills, but in that case the House, and not the Speaker, must make those rules.

    Speaker Fraser, in the June 8, 1988 ruling referred to by the member, advanced his own view of the role of the Chair in dealing with omnibus bills, by stating, at page 16257 of Debates:

        Until the House adopts specific rules relating to omnibus bills, the Chair's role is very limited and the Speaker should remain on the sidelines as debate proceeds and the House resolves the issue.

    Indeed, the member for Saanich—Gulf Islands herself also recognized the limited role of the Speaker in such circumstances, stating:

         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 may well be time for members to consider our practices for dealing with omnibus bills. However, in the absence of any clear rules, I find myself agreeing with Speaker Fraser, that the most appropriate role for the chair is to step aside and allow the House to determine the matter.

  + -(1215) 

[Translation]

    When addressing similar matters in relation to omnibus bills, Speaker Jerome on May 11, 1977, at page 5523 of Debates, and Speaker Parent on April 11, 1994, at page 2861 of Debates, both suggested that members could propose amendments at report stage to delete clauses they felt should not be part of a bill, or vote against it. We all know that this has certainly been done with respect to Bill C-38.

[English]

    In the same ruling by Speaker Parent, again at page 2861 of Debates, he stated:

    —it is procedurally correct and common practice for a bill to amend, repeal, or enact several statutes. There are numerous rulings in which Speakers have declined to intervene simply because a bill was complex and permitted omnibus legislation to proceed.

    Perhaps the Standing Committee on Procedure and House Affairs, which is engaged in a review of the Standing Orders, could examine this thorny issue as part of its study, but until such time as the House feels compelled to set new limits on omnibus legislation, as your Speaker, I must continue to be guided by current rules and practice.

    Having reviewed the submissions made by hon. members and the relevant precedents, including the many rulings just cited, the Chair cannot agree with the hon. member for Saanich—Gulf Islands to conclude that Bill C-38 is not in the proper form and therefore should not be allowed to proceed.

    In the absence of rules or guidelines regarding omnibus legislation, the Chair cannot justify setting aside Bill C-38 and accordingly must rule that Bill C-38, in its current form, is in order.

[Translation]

    I thank hon. members for their attention.