1st Session, 41st Parliament,
Volume 150, Issue 144

Thursday, March 7, 2013
The Honourable Donald H. Oliver, Speaker pro tempore

Rules, Procedures and the Rights of Parliament

Motion to Refer to Committee of the Whole—Debate Adjourned

Hon. Mobina S. B. Jaffer: As honourable senators are aware, Senator Cools has raised a question of privilege concerning the Parliamentary Budget Officer’s decision to refer a question of the interpretation of his mandate and power of direct request to the Federal Court under section 18.3 of the Federal Courts Act.

I should emphasize the Parliamentary Budget Officer is not suing the government. He is not seeking any orders against any member of the executive. He is merely seeking legal clarification of his mandate and power of direct requests that are laid down in law.

Under section 79.3 of the Parliament of Canada Act, the Parliamentary Budget Officer is entitled by requests made to the deputy head of a government to free and timely access to any financial or economic data in the possession of the department that are required for the performance of his or her mandate. Part of the mandate of the Parliamentary Budget Officer, according to section 79.2 of the Parliament of Canada Act, is to estimate the financial cost of any proposal that relates to a matter over which Parliament has jurisdiction when requested to do so by a member of a committee of either house.

Honourable senators, as I understand the process, a member of Parliament in the House of Commons can request the Parliamentary Budget Officer to undertake analysis and request certain information to do so. The same type of analysis and information has been said to fall outside of the legislative mandate and power of direct request of the Parliamentary Budget Officer by ministers of the Crown. This puts the Parliamentary Budget Officer in an unenviable position. On the one side, he may have a parliamentarian to whom he is directly accountable asking him to undertake work. On the other, he has ministers of the Crown asserting that he is legally incapable of doing so. Placed in such circumstances, the Parliamentary Budget Officer has little choice, stuck between a rock and a hard place: complying with the request of a member or acting in accordance with the position of ministers of the Crown.

We passed amendments to the Federal Courts Act, including section 18.3, to deal with this precise situation, assisting a federal tribunal or “federal office to clarify a point of law arising from any stage of its proceedings.” Section 18.3(1) of the Federal Courts Act reads, and I quote:

A federal board, commission or other tribunal may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Federal Court for hearing and determination.

(1550)

To clarify, honourable senators, a federal board, commission or other tribunal, according to section 2 of the Federal Courts Act, refers to any body, person or persons having, exercising or purporting to exercise jurisdictional powers conferred by or under an act of Parliament. The Parliamentary Budget Officer clearly falls under this definition.

As a non-political and non-adjudicative actor, he cannot be expected to make complex assessments about legal interpretations of his mandate when placed in such circumstances. As such, the Parliamentary Budget Officer is merely seeking the assistance of the Federal Court to instruct him on what to do next. He is asking the Federal Court, “Do I have the right to this information?” He is asking the court, “Does this work fall within my mandate?”

If the work falls within his mandate, he is entitled to the information. He will request the information and, if provided with it, carry out the work. If he is refused the information, his only remedy will lie with the Senate or the House of Commons. He will report to us the fact that he has not been provided the information, and we will, if we choose, act to assist him in the matter.

Given the seriousness of the allegation of a breach of privilege and the potential implications of moving forward with our own committee process, I would recommend caution.

At this juncture, it is of paramount importance that we ensure we are, indeed, on sound footing in sending this matter to committee. The Speaker mentioned in his decision last week that the sub judice rule was a mere constitutional convention, such that where matters of privilege are raised, it does not, by definition, apply. While this may very well be true, the action the Senate is considering at the moment is far more serious than merely talking about a breach of parliamentary privilege currently before the courts. Rather, we are thinking of referring the matter to our own committee, which would operate in tandem to judicial proceedings already afoot.

There will, therefore, be a real possibility that our committee process will result in one decision and the court’s ruling in another. I need not underscore how this undercuts the separation of powers in our constitutional system. To hold a committee hearing at this point would involve one branch of government, the legislature, replicating proceedings that another branch of government has already put in motion. Such a course represents a risk not only to the Senate but to also the integrity and harmony of our constitutional fabric, and it contains the potential to deeply offend the rule of law.

I would implore honourable senators to consider delaying this matter until the court has returned its interpretive ruling on the mandate and powers of the Parliamentary Budget Officer. As I understand it, the hearing is scheduled for March 21 and 22.

Senator Comeau’s amendment to the motion has passed, which would ensure that, if the motion itself is passed, the committee has the luxury of time. It is important that the committee ensures that the ongoing legal process outside this chamber is resolved before the Senate passes its own judgment. Delaying until after the Federal Court returns its interpretive ruling represents a slight compromise in expediency, especially given the fact that if this matter engages our privileges, they have been so engaged since November 2012 when the Parliamentary Budget Officer filed his application with the court.

I suspect we would all agree that, given the gravity of the impact on the separation of powers by holding our own proceedings in tandem to those of the judicial branch, the attendant possibility of different outcomes and the fact that this matter has existed since late last year, a slight delay of a few weeks is more than acceptable. Such a course would tend to protect and preserve the position of the Senate, maintain constitutional harmony between the different branches of government and substantially achieve the objective of assessing whether or not our privileges have been engaged.

Honourable senators, Senator Tardif has put to us that if we want to hear the Parliamentary Budget Officer, then — and I support her — we should hear him as a Committee of the Whole, as we all need to hear from him. Thank you.

Some Hon. Senators: Hear, hear.

Hon. Pierrette Ringuette: Would the honourable senator take a question?

The Hon. the Speaker pro tempore: Senator Jaffer, will you accept a question?

Senator Ringuette: She is a little bit shy about it, but I will ask her a question.

I have spent quite a lot of time in my life in Parliament, whether it was at the Legislative Assembly of New Brunswick, the House of Commons or here. Every time an issue touched a matter in front of the court, whichever court, the executive would not answer a question in front of the courts, as far as I know. It is part of our ruling.

Could the honourable senator explain to me, because I did not know that our Speaker, the same day that he made that ruling, also filed to be an intervenor in the court case specific —

Senator Cools: No, it is not true.

Senator Ringuette: I am really beginning to question.

Senator Cools: The integrity of the Speaker?

Senator Ringuette: Whether it is proper. I am not a lawyer. I have been in Parliament for quite a long time. I am, first, questioning whether it is proper for the Speaker to rule on this issue, as it was in front of the court and he had filed to be an intervenor.

An Hon. Senator: You cannot do that!

Senator Ringuette: I am listening to Senator Tardif, and the entire issue of the Senate’s prohibiting, or potentially prohibiting, a Canadian from appearing in front of the court.

I know that the honourable senator has a legal background. Could she clarify these two issues that I am questioning?

Senator Jaffer: Senator Ringuette has raised a very important question. It is a question that has many different facets to it. All I can say is to repeat what I said in my speech. The steps we take here will affect us for many years, and so I ask that we take them with caution and be very careful what we do. At the minimum, let us have a Committee of the Whole so that we can hear from the Parliamentary Budget Officer.

Hon. Anne C. Cools: I would like to raise a couple of questions to whomever.

The Hon. the Speaker pro tempore: Are you prepared to accept another question, Honourable Senator Jaffer?

Senator Jaffer: I do not know whom she means by “whomever.”

The Hon. the Speaker pro tempore: You have the floor.

Senator Jaffer: I will answer it, if I can.

Senator Cools: I would like to know on what authority and on what ground the ruling of the Speaker of the Senate is being questioned and impugned at this moment. I want to know the constitutional and parliamentary authority on which that is happening. That is number one.

My understanding of the rule is that if there are any questions about the Speaker’s ruling, those are to be handled through a process by which the house appeals the ruling. Thereafter it cannot be a matter of debate because the Speaker’s ruling is already established and is already a part of the jurisprudence of this place. It cannot be questioned.

What is going on here is an extremely unusual —

Senator Ringuette: What is the question?

Senator Cools: I just asked her for the authority on which she was questioning the ruling of the Speaker.

The Hon. the Speaker pro tempore: Senator Jaffer, you have the floor to respond to the question.

Senator Cools: That is the first question.

Senator Jaffer: With the greatest of respect, I do not remember and may want to be corrected. I never questioned the Speaker’s ruling. I was speaking to the motion, the one Senator Cools had stated.

The Hon. the Speaker pro tempore: You have a second question, Senator Cools?

Senator Cools: Yes. Maybe I should do all these as a point of order.

Senator Fraser: Oh, God, no.

Senator Cools: We will see.

(1600)

However, I want to know, again, the authority for the senator’s statements in respect of section 79.3 of the Parliament of Canada Act, which is the section of the Parliament of Canada Act in respect of the Parliamentary Budget Officer’s powers. I would like to know her authority for her claim in this place that the Federal Court of Canada has jurisdiction over these sections or any section of the Parliament of Canada Act. I want to know what her authority is.

My integrity has been impugned here. Oh, yes, I understand exactly what is happening here. Somehow there is an attempt here to shift the debate away from the propriety, the legality and the constitutionality of the activities of the PBO and onto, one, the Senate Speaker, and then, two, onto me. Motivations have been attributed that I just cannot recognize.

I want to know the authority, the parliamentary authority and the constitutional authority, that the senator is relying on when she is essentially asserting that the Parliamentary Budget Officer has a right to appeal to a court to hear and determine sections of the Parliament of Canada Act. I just want to know the authority.

Senator Jaffer: My remarks speak for themselves.

The Hon. the Speaker pro tempore: Further debate?

Senator Cools: Your remarks are no authority.

Hon. Wilfred P. Moore: I have a question.

The Hon. the Speaker pro tempore: Will the Honourable Senator Jaffer accept a question from Senator Moore?

Senator Moore: The honourable senator mentioned that she learned that the Speaker filed for intervenor status — did she not? Does she know whether or not he did?

Senator Jaffer: It is my understanding he did, just from what I have read, but I do not want to speak for the Speaker.

Senator Cools: Someone has to defend the Speaker.

An Hon. Senator: Time is up.

The Hon. the Speaker pro tempore: I regret to advise the Honourable Senator Moore that the Honourable Senator Jaffer’s time for speaking has expired.

(On motion of Senator Tkachuk, debate adjourned.)