Point of View 2-Book Bundle. Douglas L. Bland
such information and the PMO instructed compliant members of the committee to gut the bill.
The committee performed a charade in which they pretended to study the legislation. Not a single witness who testified was in favour of raising the salary disclosure bar. Regardless, amendments were proposed to raise the bar to a level that would ensure it would apply to no deputy minister, and then, without any debate on the amendment, compliant members of the committee did the PMO’s bidding.
How is it possible that such a well-orchestrated political manoeuvre can be executed? It is the result of a little-known process not established by the standing orders, regarding committees: the pre-committee meeting. It is at the all-important pre-committee meeting that specific decisions are conveyed to the members of the caucus sitting on a specified committee. All concerns are addressed and the instructions are made clear by executive staffers to the elected committee members.
No detail is left to chance; the entire committee process is managed by executive staffers from the minister’s office affected by the proceeding. When ministerial staff run into logistical problems that they have insufficient clout to resolve they call for back-up heavies from the PMO. Even the questioning of witnesses is decided on by executive staffers — they provide “suggested” questions for the use of the members when posing questions during committee hearings. If the minister is the witness, there is nothing “suggested” about the questions distributed to committee members — the distributed questions are scripts that are to be followed to the letter.
Similarly, decisions regarding amendments proposed by Opposition members are discussed, and a designated MP, generally the parliamentary secretary, will be provided with speaking notes as to why an opposition amendment is inappropriate and why the government members will not support it.
I used to pride myself on my ability to cross-examine hostile witnesses at Justice Committee meetings (that is, witnesses not supportive of the proposed government legislation). Although limited by strict time limits (often five minutes), I was nonetheless frequently able to poke holes in the witness’s analysis or point out contradictions. However, I eventually learned that my contributions were not appreciated. As the hearings are a sham and voting instruction are determined by executive staffers prior to the commencement of the hearing, nobody really cares what evidence comes out or how it stands up to cross-examination. The entire process is a farcical show. Accordingly, the executive staffers would prefer it if members simply lobbed softball questions to supportive witness, rather than giving any more of the committee’s limited time to unsupportive witnesses.
The entire committee process is micromanaged by executive staffers to the extent that the committee members are often little more than their puppets. As a result, there is no separation of powers between legislative committees and the executive.
In April 2013, in an extraordinary meeting of the sub-committee of the Procedure and House Affairs Committee (PROC), which deals with the votability of private members’ bills and motions, the sub-committee was considering Motion 408. M-408 would have condemned discrimination against females through sex-selective pregnancy termination. As is the procedure for vetting the votability of such bills and motions, the committee relies on the expert advice from an analyst regarding the constitutionality (both jurisdictional and Charter compliance)of an issue and whether the matter is redundant.
On these points, the analyst stated clearly his determination: “It is within federal jurisdiction. It does not offend the Constitution, and there’s no similar motion currently on the Order Paper.” In other words, the motion was, in the view of the non-partisan analyst, entirely votable.
After a couple of clarifying questions for the analyst, the Conservative member of the committee moved that “Bill C-408 should not be deemed vot[a]ble because it does not meet these two criteria.” This motion was carried unanimously without any further discussion. So, with swift adjudication, Motion 408 was dead, prevented from being debated and voted on in the House of Commons.
What is disturbing about this, firstly, is the haste and carelessness with which the motion was dispatched. The mover of the motion three times referred to it as a bill, when, in actuality, M-408 was a motion. This is more than mere nitpicking; the analyst clearly pointed out in his analysis that the standard of review is different for bills than for motions. Because motions are not binding and do not invoke statutory rules, the test is relaxed slightly.[4] So, any misunderstanding of what the committee was considering was most relevant.
But what was more disturbing than the committee’s haste was their apparent disregard for the rights of the private MP. Private members may bring matters of importance up for debate in the form of motions or bills. In a parliamentary calendar largely comprised of government business, subject to rules and a lottery that determines precedence, this is the most significant tool a private member maintains.
Undoubtedly, the issue of pregnancy termination is a subject that makes some MPs uneasy and most party leaders nervous, but that is entirely irrelevant. If members are opposed to a motion, they can vote against it. If leaders are strongly opposed to it, they can use moral suasion, or, more likely, whip their caucuses to vote against a motion. But to essentially censor a motion right at the gate, against the advice of an independent analyst, is heavy-handed and, I would suggest, contrary to the expectations of constituents, who rightly believe that their MPs have a voice and can represent them in Ottawa.
Predictably, a subsequent appeal to the entire PROC Committee was conducted in camera (i.e., privately) and purportedly summarily dismissed. By moving the vote in camera, the government ensured that the public would not know what, if anything, the committee considered before dismissing the appeal. This is a disturbing trend: moving the operation of committees in camera, preventing scrutiny of how Parliament operates. It requires majority support to move a matter in camera; the members of the majority government caucus can, when convenient, vote to move a motion away from the prying eyes of the public and the media.
As well as moving inconvenient committee discussions in camera in order to avoid the glare of publicity, the government has also taken to attempting to control — to the point of preventing it — committee work that it takes exception to. At a Justice Committee meeting in the winter of 2013, the NDP justice critic put forward a perfectly reasonable motion, requiring that the committee conduct a study regarding a whistle-blower’s allegation that the minister of justice was not vetting government legislation for Charter compliance before tabling the legislation, as required by statute.
This was, in my view, a serious allegation, especially given the growing number of the government’s tough-on-crime bills that had been struck down by the courts for being in violation of some Charter-protected right. I was not satisfied by the assurance given me by the parliamentary secretary to the minister of justice that all proposed legislation was indeed being properly vetted. She described some vague process that was being followed, which did not seem particularly similar to the very specific process prescribed and allegedly not followed according to the whistle-blower’s assertion.
However, the government, apparently not believing it was answerable to the committee, and certainly not to the NDP justice critic, instructed its majority on the committee to vote the motion down. Given the serious nature of the allegations, and since I was not feeling particularly compliant that day, I suggested that Ms. Boivin table her motion for forty hours (until the next meeting) to allow me to do my own research and allow the parliamentary secretary the opportunity to provide a more credible assurance that the government was, in fact, living up to its statutory Charter-vetting obligations.
I have never in my professional life caused such chaos or such a ruckus! Multiple staffers were literally running in and out of the committee room. Blackberries were buzzing constantly, as the executive staffers tried to figure out what the hell was going on. Did a backbencher just vote to hold over a motion potentially embarrassing to the justice minister rather than vote it down as instructed? This may have been precedent setting: a Conservative backbencher looking for assurance that the minister of justice was complying with the law!
The entire process concluded with an invitation to attend the principal’s office (that is the