Mr. Craig Scott (Toronto—Danforth, NDP):
Mr. Speaker, I rise to speak on behalf of the official opposition on the question of privilege that was raised on June 5 by my hon. friend from Avalon with regard to whether or not the members for Selkirk—Interlake and Saint Boniface should be allowed to continue to sit and vote in the House, despite having allegedly contravened certain sections of the Canada Elections Act.
The member for Avalon makes some very good points, relying on a ruling from Speaker Lamoureux in 1966, on the role of the House in relation to the courts and the House in relation to the Speaker in a situation that involved the right of an MP to sit and vote in the House when he had not complied with the then-in-force 1960 Canada Elections Act provisions with respect to filing campaign expense returns.
At the outset of my remarks, I would note that it is passing strange that once again the House is seized of a matter relating to the government's so-called interpretation of the Canada Elections Act.
Over the past number of years we have seen time and again questions cast over Conservative campaign dealings, from the in- and-out scandal of the 2006 election campaign to the recent Federal Court judgment on widespread fraudulent robocalling to suppress the electoral process in 2011 to the many questions around Peter Penashua's campaign expenses, and the list goes on.
The legitimacy of our electoral system is constantly being called into question by the Conservatives, and this is something that does leave many Canadians concerned.
The Chief Electoral Officer, whom I will refer to as the CEO, has determined that two members of the House, the MPs from Saint Boniface and Selkirk—Interlake, have breached the Canada Elections Act, section 457(2) by refusing to correct their expenses returns from the 2011 election as requested by the CEO.
It is important to read section 457(2) for the record. It says, “The Chief Electoral Officer may in writing request the candidate or his or her official agent to correct, within a specified period, a document referred to in previous subsections”.
A letter was sent by the Chief Electoral Officer to the Speaker of the House of Commons, drawing his attention to the breach and also drawing to his attention section 463(2) of the Canada Elections Act, which says, “Suspension of the MPs from sitting and voting is mandatory if corrected returns are not filed”.
Section 463(2) reads:
|| An elected candidate who fails to provide a document as required by section 451 or 455 or fails to make a correction as requested under subsection 457(2) or authorized by 458(1) shall not continue to sit or vote as a member until they are provided or made, as the case may be.
In his letter, which I have read online on the CBC's website as it has not yet been tabled in this House, the CEO did not state expressly what action he expected would follow receipt of the letter, whether from the Speaker or from the House. He noted 463(2) did require a mandatory suspension of the MPs right to sit and vote, but he also noted that the MPs had a right to challenge him in court. While he did not cite the provisions, the Canada Elections Act itself provides for this right of recourse to a judge in section 459.
Section 459 reads:
|| A candidate or his or her official agent may apply to a judge who is competent to conduct a recount for an order...relieving the candidate or official agent from complying with a request referred to in subsection 457(2).
Those are the three applicable provisions in the act.
Before addressing the argument from the member for Avalon, please allow me to first address the closely related issue that was also raised last week by my colleagues in the third party in the House, namely that of tabling the correspondence between the Chief Electoral Officer and the Speaker. The Speaker stated on Friday that no statutory authority or Standing Order suggested that the tabling of this correspondence was required and that, as a result, he did not agree that tabling of the correspondence filed was within his responsibility as Speaker.
I would acknowledge that the Chief Electoral Officer's letter was never framed as a letter to the House directly and that in the letter the CEO appeared to indicate the provision in the Canada Elections Act on access to a judge had some relevance to the application of the suspension provisions 463(2).
Nonetheless, I would respectfully submit that disclosure of this type of information is preferred and that the letter should nonetheless have been tabled for the information of all members of the House. Here I would observe that just as there may be no statutory or Standing Order obligation on the Speaker to table a letter in these circumstances, there is also no prohibition. There is accordingly, at the very least, a power to table the letter and for that reason alone, it would have been desirable to do so.
Given the way in which the letter from the Chief Electoral Officer was framed and the ambiguity over what actions the Chief Electoral Officer expected from the Speaker, it is understandable that the Speaker would have wished to take a little time to determine how to present the significance of the letter at the time of tabling it, but from the moment the Speaker decided that no suspension was in order until court proceedings had dealt with the matter, it was desirable for the House to have known about the letter along with his explanation as to how he understood what followed from that letter. That would have given members of the House a better basis for deciding whether their own privileges had been breached, because they would have heard his arguments for why he at least preliminarily believed, that is if the Speaker remains open to changing his view on this, that one, suspensions under 463 are not triggered until court rules and two, it is for the Speaker to make this determination on behalf of the House.
I have just expressed the issue of tabling the letter in terms of at least a power that the Speaker has and I have also talked in terms of it being desirable. However, I must now add, with great respect, that the official opposition believes that while there is no express obligation to table, either found in the Canada Elections Act or the Standing Orders, there is nonetheless an implied obligation. This obligation, we believe, both flows from the relationship between the Speaker and the House and from the substantive issues addressed in the letter.
On the obligation to disclose flowing from the relationship between a Speaker and members of the House, I would observe that this honourable House cannot function without the Speaker and the House as a whole working in concert. As such, there should be a strong presumption of disclosure with respect to any correspondence that implicates, or may implicate, the House and the privileges of its members.
That said, perhaps disclosure that is obligatory for this reason, that is due to the relationship between the Speaker and the House, need not necessarily always be done by way of tabling. Perhaps the Speaker may judge that disclosure be done among the respected parties' House officers, who are well positioned to receive and share this information with their caucuses. Of course independent members of the House would also need to be informed if a tabling to all MPs is not chosen as the mechanism. Perhaps this is something that the Standing Committee on Procedure and House Affairs could look at as it looks at other proposed changes to the Standing Orders in order for there to be future clarity on expectations.
On the obligation to disclose flowing from the underlying substantive issue, here there is something of a chicken and egg challenge. If the correct position is that members should be suspended under section 463, at the moment that the Chief Electoral Officer has determined that section 457(2) has not been complied with, the House, acting in concert with the Speaker, would need to give effect to that consequence, but members cannot know of the violation and the fact that two of their colleagues should not be permitted to sit and vote if the Speaker does not make the House aware the moment the Speaker is himself made aware of the state of affairs. Members would not even know their privileges are being breached unless, as was the case here, the media discovers the two MPs considered to be in violation of section 457(2) are seeking judicial review through the courts.
Restated, for MPs to be able to raise a question of privilege about their privileges being breached by the fact members continue to sit and vote, members need to be aware that the Chief Electoral Officer has in fact determined that section 457(2) of the Canada Elections Act has been violated and that section 463(2) has therefore become applicable. They should not have to rely, I respectfully submit, on media reports about a court case having started, nor an access to the letter through other avenues. Obviously, the Speaker may want to start with the chicken where members may want to start with the egg.
Statements from spokespersons for the Speaker did suggest that he may not see any possibility of privilege arising because suspensions are not yet applicable. If that is correct, then it is understandable that the Speaker may have taken the view that therefore no obligation to disclose the letter is generated, at least until a court has ruled and upheld the Chief Electoral Officer.
I am not sure about how the Speaker would characterize the state of affairs exactly. He may view the situation as being one whereby section 463 does not yet apply, pending the outcome of court proceedings, or perhaps he sees section 463 suspensions as having actually been triggered by the Chief Electoral Officer's determination but has then, in some sense, decided to stay the suspension as a court might stay an administrative order.
Put differently, for two sets of institutional reasons—the role of the courts and the Speaker's role—he may take the view that suspensions were triggered but are to be held in some sort of abeyance for the time being.
Mr. Speaker, you can see how speculative I have been in the foregoing, for the very reason that we have not had a statement or ruling from the Speaker on how he interprets his and the House's roles with respect to the three relevant sections I quoted earlier. For this reason alone, we do indeed look forward to hearing from the Speaker.
The Speaker will, of course, now be ruling in response to the question of privilege raised by the member for Avalon, who raised the matter only because word had emerged via the press of the Chief Electoral Officer's determination. However, with the benefit of hindsight, I would suggest that it probably would have been much cleaner if we had had from the outset a tabling of the letter simultaneously with an explanation of the Speaker's proposed approach.
All of this requires me to speak to the question of privilege raised by the member for Avalon beyond the interconnected question of the disclosure of the letter.
In a nutshell we, the NDP and official opposition, believe that one way or another, the two MPs should not be sitting or voting for as long as either they fail to provide corrected returns as requested by the Chief Electoral Officer or they have not yet secured a court judgment in their favour.
We are conscious that the Canada Elections Act specifically provides for recourse to a judge at first instance in section 459, and we in no way question the legal right of the two MPs to go to court nor the right of the House to lift any suspension if the MPs do prevail before that judge.
However, we view the burden as having always been on the members to satisfy the Chief Electoral Officer that their returns are correct within the structure of the Canada Elections Act. There is nothing expressed or implied in subsection 459(1) that says the burden of persuasion shifts to the Chief Electoral Officer now that the matter is going to court.
It is also important to note that administrative orders or determinations are not stayed as a matter of course in our legal system when the subject of such an order decides to seek judicial review. Normally, an applicant for judicial review must apply to court to stay the order while the case is being heard, and usually a statute creates a specific procedure for applying for such a stay, a procedure not found in the Canada Elections Act. If the court decides not to stay, often on the basis that an irremediable harm test has not been made out, the order stays in effect while the court proceedings continue.
The House is sovereign in applying those parts of statutes relevant to its own internal proceedings with respect to the rights and obligations of MPs, of which the rights to sit and to vote are very much core rights. Thus the House, acting through or with the Speaker, can—and, I submit, should—look at this as essentially a question of whether the suspensions triggered under subsection 463(2) should be stayed pending the outcome of the judicial review.
We believe that no such dispensation should be given under the circumstances at hand. We reach this in large part on the basis of our understanding of and respect for the Chief Electoral Officer's role within the compliance scheme of the Canada Elections Act.
To understand the deference we feel is owed to the CEO in this context such that we should treat the determinations he made as correct until proven otherwise, it is helpful to know more about the role of the Chief Electoral Officer.
The Chief Electoral Officer is an officer of Parliament who is charged with wide management and supervisory powers over the electoral system.
In the recent 2011 Federal Court of Appeal judgment in the case of Callaghan, which concerned the in-and-out scheme used by the Conservative Party in the 2006 election, the Federal Court of Appeal, in a unanimous three-judge decision, upheld the position of the Chief Electoral Officer. The court accepted that it was reasonable for the Chief Electoral Officer to conclude that the Conservative Party and official agents for Conservative candidates had operated what some would characterize as a kind of or analogous to a money laundering scheme to allow the Conservative Party to exceed its national election spending limits.
The court noted that 67 Conservative candidates' official agents have participated in this in-and-out scheme, along with the Conservative Party.
In the course of vindicating the position of the Chief Electoral Officer, the court described the Chief Electoral Officer's role.
In paragraph 22, the Federal Court of Appeal emphasized the “neutrality of the office” of the Chief Electoral Officer and further went on to note:
|| To underline the importance of the position to the maintenance of democracy in Canada, the [Chief Electoral Officer of Canada] is a Parliamentary officer, who holds office on terms similar to those of a superior court judge....
In general, the court of appeal observed that:
||...the [Chief Electoral Officer] has wide supervisory responsibilities for the conduct of elections, and the powers and functions necessary to administer the Act.
Just as relevant is how the Federal Court of Appeal in the Callaghan case contrasted the Chief Electoral Officer's approach to the Canada Elections Act with what would have been the results if the court had not agreed with the Chief Electoral Officer and instead had interpreted the Canada Elections Act in a way the Conservative Party was advocating before it.
The court of appeal found that the Conservative Party's arguments would:
||...reduce the role of the [Chief Electoral Officer]...in connection with candidates’ statements of their election expenses to a degree that does not fit with the statutory scheme and its objectives.
It also dismissed what I can only see as, frankly—and these are harsh words—an Orwellian argument of the Conservative Party that the Chief Electoral Officer was somehow himself a threat to democracy:
||...to interpret the CEOC's powers as including the power to look beyond the documents submitted by candidates and registered political parties in their electoral campaign returns cannot plausibly be said to compromise democracy. Questioning the propriety of an election expense is a routine matter....
Finally in this case, the court of appeal also had the following to say about the nature of the arguments that the Conservative Party had been using to justify its election expenses scheme, this cost-shifting arrangement, as it was euphemistically called:
|| The respondents’ interpretation of subsection 465(1) would weaken compliance with the limits set by Parliament on the amount of money that candidates may spend on their election and can recover by way of reimbursement from public funds. Abuses could well proliferate, and the statutory objective of promoting a healthy democracy through levelling the electoral playing field undermined.
That was paragraph 77.
To the extent that the House does have the power to hold in abeyance the suspension under subsection 463(2), which I have been calling in effect “staying” the suspension, the facts of the concrete situation before this House are relevant on the question of whether the members in question should benefit from a stay.
Here we would note that the members for Saint Boniface and Selkirk—Interlake have interacted for two years with the Chief Electoral Officer in a manner that, quite frankly, does not suggest a great urge to co-operate with the Chief Electoral Officer.
It is generally recognized that the practice of Elections Canada is to give candidates, official agents and parties the benefit of the doubt and to do what it can to assist these actors to be in compliance with the act, yet this situation has dragged on for two years, with the two members of Parliament, our colleagues, advancing interpretation of the expenses sections of the act that, as far as we know, no other candidates, official agents, or parties across Canada have had difficulty complying with.
We are now virtually as close to the next election as to the one in 2011. Justice delayed is justice denied.
All of this is relevant to whether or not the House should hold the suspensions in abeyance, that is, to exercise its discretion to do that, keeping in mind that the members do have a right to access the court under section 459 but do not have a right to have their suspensions stayed in the meantime. If those suspensions were to be stayed, it would be a matter of the exercise of discretion by the House.
There is another part of the concrete context that the NDP believes to be relevant as to whether the House should exercise its discretion to hold the suspensions of the two members in abeyance. Here I am referring to the proven record of the Conservative Party and some of the Conservative MPs of abusing court processes so as to delay and obstruct, as well as the pattern of non-co-operation with Elections Canada by the government for seven years across a range of issues starting with the in-and-out cost-shifting scheme as far back as 2006.
With respect to this latter point, we are all well aware by now of the findings of the Federal Court in the McEwing case, decided recently on May 25, in which Justice Mosley found that there had been orchestrated and widespread fraud across Canada, very likely using data from the Conservative Party's voter information database, while there was insufficient evidence of the consequences of this fraud to justify nullifying the elections of six Conservative MPs.
While the government has done its level best to present the judgment as some sort of victory, it has ignored and, frankly, tried to get Canadians to ignore other findings by the judge, who, I might add, is one of the most respected judges in Canada.
Justice Mosley first observed that the Conservative Party had “made little effort to assist with the investigation at the outset despite early requests”.
It is a well-known fact that this began with a Conservative Party of Canada lawyer dragging his heels for three full months before even responding to a request from Elections Canada's investigators to interview Conservative Party campaign staff, after which we have no idea how much longer things then continued to drag out before some interviews took place. This is the same lawyer, I understand, who is now representing the members for Saint Boniface and Selkirk—Interlake in their court challenges against the Chief Electoral Officer.
Second, in the McEwing case Justice Mosley roundly condemned the behaviour of the Conservative Party during the proceedings, making it clear that the Conservative Party of Canada is more interested, frankly, in burying the truth than anything else. He observed variously that the six Conservative MPs—and really, that means the Conservative Party and its lawyers—“...engaged in trench warfare in an effort to prevent the case from coming to a hearing on the merits”, that they engaged in “...transparent attempts to derail this case” and that “...the stance taken by the respondent MPs from the outset was to block these proceedings by any means”.
Keeping in mind the trust placed in the Chief Electoral Officer by the Federal Court of Appeal in the Callaghan case, a trust shared by the official opposition, and the reasons there are no special factors favouring the exercise of the House's discretion in favour of the members for Saint Boniface and Selkirk—Interlake that would speak in favour of suspending their suspensions, so to speak, let us consider some more of the facts so we understand why the official opposition does not believe that there are factors that would suggest the House should exercise the discretion to hold the suspensions in abeyance.
It transpires that Elections Canada has been interacting with these two members with respect to the accuracy and adequacy of their election returns from the 2011 general election, with the matter under contention concerning the correct costing of signage used by the candidates during the election as well as, at least for one of them, a donation website.
The Chief Electoral Officer evidently came to the conclusion that the two members could not be counted on to co-operate and correct their returns as Elections Canada had requested them to do under subsection 457(2) of the Canada Elections Act by a deadline of May 17 of this year. The members sent a response that the Chief Electoral Officer determined did not comply with this subsection 457(2) request because the requested corrections simply were not made.
Accordingly, when the May 17 deadline passed, the Chief Electoral Officer determined that subsection 463(2), the suspension provision that I read out earlier, was now applicable.
It will be noted that subsection 463(2) states a legal consequence, namely that a violation of section 457(2) triggers mandatory suspension of a member of Parliament from the right to sit and vote.
However, it is silent in at least three salient respects: one, it does not expressly say that the Chief Electoral Officer's determination that there has been a violation is all that is necessary for the suspension to be triggered; two, it does not expressly say that a suspension may be delayed until a court has determined whether the CEO is correct that the required amendments had not been made to the return; and, three, section 463(2) does not state or even hint at the mechanism within the House for a suspension to be effectuated. Is it for the Speaker to determine and, if so, when, or is it for the Speaker to put before the House for the House to determine and, if so, when?
It can be seen that the silences in section 463(2) both point to and generate the special complexity of the matter before the House, which is that there are no fewer than four institutional actors who may have either an interpretive or implementing role with respect to whether section 457(2) has been violated and, if so, what the consequences are of such a violation. These are the Chief Electoral Officer, the courts, the Speaker and the House itself. Layered onto this complexity are the interests, of course, of the two MPs, whom the Chief Electoral Officer has found not to be in compliance with the act, in two respects: on the one hand, their legal rights under the Canada Elections Act statute, and, on the other hand, their privileges as elected MPs in the House.
The next essential point is that the Chief Electoral Officer evidently determined that the way to initiate a section 463(2) suspension is to write to the Speaker of the House of Commons to inform the Speaker of the relevant facts and legal provisions. This is, as I am repeating myself on this point, what the Chief Electoral Officer did in two separate but virtually identical letters relating to each MP, dated May 23, 2013. Because these letters are central to both the question of the trigger for a section 463(2) suspension, as well as to the merits of the question of privilege raised by my hon. friend from Avalon, allow me, please, to summarize several important features of the Chief Electoral Officer's letters. I believe it to be especially important to summarize these elements because I imagine the careful formulations found in the Chief Electoral Officer's letters likely influenced the Speaker's own view on what the correct course of action was in response to those letters.
The first point is that each letter is addressed to the Speaker and, while the addressee is referenced in the address section as the Speaker of the House of Commons, there is no other reference to the House in the body of the letter. The second point is that each letter takes the form of bringing to the attention of the Speaker a series of what I might call legal facts, but there is no explicit request that the Speaker do anything in particular in relation to those facts.
The third point is that the CEO does make plain that in his official capacity, he has determined that the members for Selkirk—Interlake and Saint Boniface have violated section 457(2) by failing to correct their returns. The fourth point is that the Chief Electoral Officer then observed that the effect of the failure to correct returns under section 457(2) is suspension of the members from sitting or voting until the returns are corrected, again pursuant section 463(2). However, he leaves this observation as a general statement and does not draw explicit conclusions as to whether this means the MPs must now be prevented from sitting or voting as a matter of law as an immediate consequence of his determination that section 457(2) has been violated.
On the surface of the letters, the most that can be said about the approach the CEO has taken is that he has drawn to the Speaker's attention that section 463(2) is applicable, but he does not expressly talk about the timing or mechanism for that suspension, other than the simple fact that section 457's violation triggers section 463's applicability. That said, such circumspection on the part of the Chief Electoral Officer would, of course, be consistent with the Chief Electoral Officer recognizing that Parliament is in control of its own processes and the Chief Electoral Officer assuming that it was not for him to specify what the Speaker and the House may, must, or should do.
The fifth point is that the Chief Electoral Officer then observes that a person in the position of the members from Saint Boniface and Selkirk—Interlake can go to court to seek relief from the requirement they comply with his request to correct their returns, but he does not specify the legal basis for being able to go to court, although we can assume that he is referring to section 459(1), which I read out earlier.
One can only surmise that the Chief Electoral Officer viewed it as relevant, and views it as relevant, to what the Speaker may or must do in response to his letter, that the act provides for judicial recourse. Again, of course, this is also consistent with the Chief Electoral Officer accepting that it is a matter for the House to decide whether, in effect, to stay the effects of the Chief Electoral Officer's determination; that is, to hold the suspensions in abeyance while the matter went to court and also, with prudent judgment on the part of the Chief Electoral Officer, not to appear to be instructing either the Speaker or the House.
Sixth, and finally, with respect to the letter, the CEO does note that the MPs had not yet, at the time of the letter, applied for relief to the courts under section 459, but he would alert the Speaker if they did. Allow me to observe that after the Chief Electoral Officer did send his letter to the Speaker, the two MPs did indeed file applications in Federal Court under section 459(1), as was noted in the interventions of the member for Selkirk—Interlake and the member for Saint Boniface last Friday.
My understanding is the Chief Electoral Officer then did alert the Speaker, as he said in the letter he would do, that applications to challenge his determination of a breach of section 457(2) had been filed by the MPs. It would appear that the trial date for the member for Saint Boniface has been set down for June 21, and that for the member for Selkirk—Interlake for a date in September.
If I have understood his arguments properly, and I may have not, the member for Avalon would seem to be asserting two interconnected propositions.
First, section 463(2) suspensions apply immediately upon the Chief Electoral Officer determining there is a breach. In this respect, in a subsequent intervention a colleague of the member for Avalon added that the rationale for the immediacy of the suspensions is that section 463(2), in his estimation, is intended as a tool to force or coerce members into complying with the duty to file accurate returns. The provision in that sense is neither about criminal nor civil remedies, but it is a compliance mechanism if this is an accurate paraphrase of what the member for Winnipeg North intended. The implication of this position is that we should operate on the presumption that the Chief Electoral Officer is accurate in his interpretation of the act, but the presumption will only be rebutted after an MP decides to go to court and if that court then does side with the member over and in preference to the Chief Electoral Officer.
Second, the member for Avalon recognizes that immediate application of the suspension cannot occur without some kind of institutional action; it does not occur in the air, so to speak. Suspensions occur within the province of Parliament and thus a mechanism or process in Parliament must take place in order to give effect to the legal state of affairs ordained by section 463(2). The member for Avalon argues that the House decides whether members should be suspended from sitting or from voting, and not the Speaker, relying on a precedent from a 1966 ruling by Speaker Lamoureux in particular. One assumes the member for Avalon is referring to a plenary vote in this House, but perhaps he is also still leaving it open, although he did not speak to this, that an appropriate committee of this House may be charged with the matter, such as the procedure and House affairs committee; or perhaps he would also accept some sort of staged procedure whereby the Speaker takes some initial step and the House then backs up the Speaker with respect to that step.
These two points together seem to ground the breach of privilege that the member for Avalon claims existed and continues to exist. On the one hand, his and other members' privileges, including my own, are breached because the members for Selkirk—Interlake and Saint Boniface are still sitting and voting rather than being suspended. On the other hand, privileges are breached because the Speaker has not placed this matter in the House's hands for its determination.
There are two further contentions. I will call them the third and fourth propositions, which are implied, not actually stated, by the member for Avalon, but I think they follow.
Third, if the mechanism the member for Avalon believes is applicable is a vote by all MPs in the House, this would seem to imply that it is the duty of all MPs to simply give effect to the interpretation of section 463(2), according to which a suspension is immediate because the Chief Electoral Officer has determined that an inadequate return has been filed. That is, while we would vote, we really should only be voting in one way.
It bears noting that there is something less than a guarantee that this reconciliation of the first and second propositions—that a suspension is immediate and that the House carries out the suspension—will actually be what would result from a vote in this House were a vote to take place. Here, I would note two rather obvious points: one is that the governing party has a majority of votes in the House; and the other is that the government House leader has already stated that he interprets section 463(2) suspensions not to apply immediately, but, rather, only once court proceedings have confirmed that the Chief Electoral Officer is correct. If I had to predict, a vote at this stage in this House is not likely to result in the immediate suspension of the MPs.
It is for this reason, Mr. Speaker, that we believe it is especially important for this House to hear from you on what you believe to be the mutual relation and limits of your and members' powers when it comes to this issue of suspension of members' rights to sit and vote.
There is a fourth proposition that would seem to be necessarily implicit in the views of the member for Avalon that the House, not the Speaker, decides whether a suspension will take place. Here I am looking back to the opening comments I made at some length about the letter sent to the Speaker by the Chief Electoral Officer. That proposition is that the House must know whether a violation has occurred that triggers section 463(2) suspensions. That translates into a corollary proposition that the Speaker must have a duty to inform the House when he becomes aware that the Chief Electoral Officer considers section 457(2) to have been breached. It is somewhat unclear to me whether the member for Avalon intended to contend that his privileges were also breached because the letters had not been tabled, but, to me, such a contention does flow logically from the argument that MPs' privileges are breached if the Speaker decides to delay the suspension of members after receiving letters from the Chief Electoral Officer rather than putting the matter to the House for decision.
It is here that the member for Avalon relies on the precedent of the ruling of the Speaker on March 1, 1966 in the House of Commons Debates 1966, page 1939, when Speaker Lamoureux addressed a question of privilege raised by the then member for Yukon, Mr. Nielsen. The then member for Yukon had argued that his privileges as an MP had been breached because the then member for Montmagny—l'Islet, Mr. Berger, had continued to vote despite not having filed his elections return by the deadline.
While by no means identical to the current Canada Elections Act language or the structure found in sections 457 to 463, the detailed section 63 of the old 1960 Canada Elections Act, which was in force in 1966, does have some close parallels to the current law, at least in three respects. One, failure to file an adequate return is a breach of the act, which, two, produces a suspension of the MP until the return is filed, but, three, that also provides for the MP to apply to a court to seek relief from the application of the act. Section 63(12), in effect, allowed a candidate, Mr. Berger, to apply to a judge to have the judge declare that he had a good excuse for not filing his return on time.
With respect to this third and final element, Speaker Lamoureux noted that a government minister had risen to argue on behalf of Mr. Berger that “...section 63...provides that if members fail to carry out the provisions of the act, there is a remedy provided in the courts, and that therefore this would be a matter for the courts to consider.” This does parallel the argument we heard from the government House leader here in this House.
The Speaker goes on to discuss the 1966 ruling, and refers obliquely to, “the judgment delivered on February 24...by Chief Justice Dorion”. He does not clarify what the judgment is within that ruling. However, a little bit of digging turned up the fact that the judgment had actually been read into the record three days earlier by the Speaker on February 28, 1966. The judgment is reproduced in the House of Commons Debates 1966 on page 1843 and it reads very briefly indeed, and I will read it:
|| We, the undersigned, Chief Justice of the Superior Court of the Province of Quebec, sitting for the district of Quebec, on the applicant's petition, after having examined the facts alleged in the petition and the documents produced, excuse the applicant....
That is Mr. Berger.
||....for failing to file his election expenses return;
|| AUTHORIZE the applicant to submit the said return within fifteen days from the date of the present ruling;
|| AUTHORIZE the applicant to act as if his return had been filed within the time limit prescribed by law.
It is unclear from reading only the text of Speaker Lamoureux's ruling in 1966 that a court had already granted relief to Mr. Berger for failing to file his return on time. This ruling had occurred on February 24, three days after Mr. Neilsen had raised the question of privilege on February 21.
Thus, when the Speaker ruled on March 1, the question of whether he or the House had the power to suspend the MP was addressed in the context of the court having already absolved the MP, and thus the grounds for suspension having been dissolved in that sense, at least from the point of view of the act as it had been applied by the courts.
What is interesting here—and this does support the way in which my colleague, the member for Avalon, argued the relevance of the 1966 ruling—is that Speaker Lamoureux did not rule that the matter underlying the question of privilege had become moot because the court had already absolved Mr. Berger, despite the fact of that determination.
Instead, the Speaker treated it as still a live issue, as to whether Mr. Berger could still be suspended. The reason he treated it as a live issue was that he relied on the reasoning in a classic English case called Bradlaugh v. Gossett, decided in 1884 by the three-judge Court of Queen's Bench.
He took it as a given that the judiciary, based on this judgment, could not intervene in matters relating to the internal management of the affairs of the House of Commons to the point that the House has the power to decide on an interpretation of a statute for its own purposes that may conflict with the interpretation that the courts had given or would give the same statute.
In that 1884 Bradlaugh case, the Speaker had refused to allow a recently elected MP to be sworn in because he had been disruptive in the House. I am assuming that was prior to the election.
The House of Commons then backed the Speaker with a resolution calling on the Sergeant at Arms to enforce the Speaker's ruling by barring the MP from the House. The MP went to court to seek an injunction against the Sergeant at Arms enforcing the House resolution, and members can guess what the result was.
He argued that the House had acted contrary to the Parliamentary Oaths Act, had misinterpreted it. Lord Coleridge, Chief Justice of the Court of Queen's Bench, in writing the lead judgment commented, simply, in a longer judgment:
|| If injustice has been done, it is injustice for which the Courts of law afford no remedy.
To make it clear, Speaker Lamoureux decided that a decision by a court that Mr. Berger was no longer in violation of his duty to file his return on time did not mean the House could not itself act on a differing interpretation of the Canada Elections Act.
Now we come to his second and final step in his reasoning. Speaker Lamoureux then decided that he as Speaker did not have the authority to decide whether Mr. Berger should be suspended on behalf of the House. Here, he invoked a Speaker's precedent from this House of Commons in 1875, in which the issue arose of whether an MP could take a seat and vote despite not having signed the roll and taken the MP's oath.
The Speaker, in 1875, had called the House's attention to the issue and the House sent the matter to a House committee, after which the MP's vote was annulled.
Speaker Lamoureux ended his ruling by concluding, from this precedent, the following:
||...it is not within the competence of the Speaker to decide as to the question of substance or as to the disallowance of a vote, and that such decisions are to be made by the house itself.
What then transpired? I cannot say for sure, but the last record I can find in the House of Commons Debates seems to have been a brief comment right after the Speaker's ruling by Mr. Neilsen, when he said:
||...I would like to study it in more detail before deciding whether any further procedure should be taken.
The reason for my being able to find nothing more after that, I submit, is very likely that the matter ended there. It would not seem a stretch to assume that Mr. Neilsen decided to let the matter drop, because after Mr. Berger had acted on his right to seek relief in the courts, he was no longer in violation of the act from the point of view of the judicial system.
For the House of Commons to have nonetheless invoked its pure right to do so, for it to have acted on its formal right to suspend a member for violation of the Canada Elections Act based on its own view of whether a member was in violation, would most likely have raised eyebrows from the point of view of the rule of law, as there is some sort of coherence between what the House does and what the courts do.
Allow me to restate that the NDP believes that, as a general rule, formal suspension should be carried out within the House when the Chief Electoral Officer alerts the Speaker and thus this House that non-compliance with section 457(2) has triggered the applicability of section 463(2). The whole compliance framework of the Canada Elections Act works properly only if there is due deference to the special role of the CEO within that framework, as well as acknowledgement that the system can only really work when MPs and parties co-operate in good faith with Elections Canada and the Chief Electoral Officer.
Also, we cannot forget the importance of the role of the Chief Electoral Officer as an officer of Parliament. Such officers must surely have a reasonable expectation that Parliament will assist them when Parliament is in a position to. In this context, the act would need to be clear, certainly a lot clearer than it is, or create a necessary implication that the procedural rights of MPs to challenge the Chief Electoral Officer in court include not only the right to go to court but the right to have their suspension in this chamber held in abeyance. The act simply does not go that far.
I end by noting that we respectfully leave it to the Speaker as to how to deal with the 1875 Speaker's ruling precedent relied on in the 1966 Speaker Lamoureux ruling and with Speaker Lamoureux's ruling itself. The House will recall that this ruling said that the Speaker may not suspend a member, but only the House can do so; yet we should also be aware that it is a single precedent that is almost half a century old and that may be operating on the basis of a somewhat too stark division of labour as between the Speaker and the members of the House. In this regard, we note the description found at page 306 of House of Commons Procedure and Practice, second edition, where it is stated:
|| The office of the Speaker derives its authority from the House and the holder of the office may accurately be described as its representative and authoritative counsellor in all matters of form and procedure.
We trust the good counsel of the Speaker on this matter and appreciate the position the Speaker may find himself in as a result of the absence of an express prescription in the Canada Elections Act or guidance in our Standing Orders as to how the suspension of a member pursuant to section 463(2) can be executed. Suspension likely does need a procedure within the House beyond a decision of the Speaker himself, but there may be mechanisms to achieve this beyond an immediate and direct putting of the matter to a majority vote in the House. In this regard, I would end by observing that this honourable House cannot function without the Speaker and the House as a whole working in concert. We look forward to the Speaker's view on how this can take place in future in this matter.