Séance du matin et
de l'après-midi - jour de session 8
4th Session,
37th Parliament
4e session
37e législature
PRAYERS
10:00 A.M.
PRIÈRES
10 H
Mr. Tascona moved,
M. Tascona propose,
That, in the opinion of this
House, the Government of Ontario should enter into discussions
with the federal government forthwith pursuant to which
responsibility for immigration matters pertaining to the Province
of Ontario would be transferred to the Government of
Ontario.
A debate arising, at 11:00 a.m.,
further proceedings were reserved until 12:00 noon.
À 11 h, la suite du
débat est réservée jusqu'à midi.
Mr. Sorbara then
moved,
Ensuite, M. Sorbara
propose,
That, in the opinion of this
House, the Ontario Government should adopt Dalton McGuinty's
Growing Strong Communities platform to tackle gridlock by
dedicating 2 cents of the existing gas tax to municipalities to
use for transit, and by creating the Greater Toronto
Transportation Authority and giving it the resources and mandate
to repair the damage from years of neglect by:
· Putting more GO trains on
existing lines
· Expanding GO
parking
· New vehicles for the
TTC
· Removing highway
bottlenecks
· Establishing a seamless
integrated ticket system allowing users to move across the GTA
region with a single ticket.
The question having been put on
Mr. Tascona's Resolution Number 1, it was carried on the
following division.
La motion, mise aux voix, sur la
résolution numéro 1 de M. Tascona est adoptée par
le vote suivant.
AYES / POUR -
63
Arnott
Baird
Barrett
Bartolucci
Beaubien
Bisson
Boyer
Bradley
Chudleigh
Clement
Coburn
Crozier
Cunningham
Curling
DeFaria
Dombrowsky
Duncan
Ecker
Elliott
Flaherty
Galt
Gerretsen
Gilchrist
Gill
Gravelle
Hardeman
Hastings
Hudak
Johns
Johnson
Kells
Klees
Levac
Marland
Martiniuk
Maves
Mazzilli
McDonald
McLeod
Miller
Molinari
Munro
Mushinski
Newman
O'Toole
Parsons
Patten
Peters
Prue
Runciman
Ruprecht
Sampson
Spina
Sterling
Stockwell
Tascona
Tsubouchi
Turnbull
Wettlaufer
Wilson
Witmer
Wood
Young
NAYS / CONTRE -
12
Agostino
Bountrogianni
Bryant
Caplan
Colle
Cordiano
Di Cocco
Kennedy
McMeekin
Phillips
Smitherman
Sorbara
The question having been put on
Mr. Sorbara's Resolution Number 2, it was lost on the following
division.
La motion, mise aux voix, sur la
résolution numéro 2 de M. Sorbara est rejetée par
le vote suivant.
AYES / POUR -
26
Agostino
Bartolucci
Bountrogianni
Bradley
Bryant
Caplan
Colle
Cordiano
Crozier
Curling
Di Cocco
Dombrowsky
Duncan
Gerretsen
Gravelle
Kennedy
Levac
McLeod
McMeekin
Parsons
Patten
Peters
Phillips
Ruprecht
Smitherman
Sorbara
NAYS / CONTRE -
48
Arnott
Baird
Barrett
Beaubien
Bisson
Chudleigh
Clark
Coburn
Cunningham
DeFaria
Ecker
Elliott
Flaherty
Galt
Gilchrist
Gill
Hardeman
Hastings
Hudak
Johns
Johnson
Kells
Klees
Marland
Martiniuk
Maves
Mazzilli
McDonald
Miller
Molinari
Munro
Mushinski
Newman
O'Toole
Prue
Runciman
Sampson
Spina
Sterling
Stockwell
Tascona
Tsubouchi
Turnbull
Wettlaufer
Wilson
Witmer
Wood
Young
1:30 P.M.
13 H 30
The Speaker addressed the House
as follows:-
Members will be aware that there
appears on today's Orders and Notices Paper, two notices
of an Opposition Day to be debated next week.
Under Standing Order 42(d), the
Speaker is required to select one of these notices for
consideration, taking into account the order in which they were
received.
I would like to advise Members
that the motion by Mr. Bradley will be the one that will be
selected for debate next week.
The Speaker delivered the
following ruling:
On Thursday, May 1, 2003, the
member for Renfrew-Nipissing-Pembroke (Mr. Conway) rose on a
question of privilege to indicate that the circumstances
surrounding the presentation of the Budget speech in a private
facility in Brampton on March 27, 2003, a day on which the
Legislature stood prorogued, amounted to a prima facie
case of contempt of the House. According to the member, the
events of that day were an offence against the authority and
dignity of the House. He also indicated that the government made
a clear and deliberative choice to deliver a Budget outside the
House, thereby offending the convention of responsible government
and undermining the financial function of Parliament.
The member for Niagara Centre
(Mr. Kormos) also spoke to the incident. According to the member,
the government breached the constitutional convention of
presenting the Budget in the House. He indicated that the breach
was conscious and premeditated, that the Budget was presented in
a controlled environment with invited guests, that Budgets are
confidence matters, and that the Speaker has the authority to
remedy the breach.
The Government House Leader (Mr.
Stockwell) responded to these arguments by indicating that the
Speaker cannot deal with constitutional arguments, and that a
Budget process should not be characterized as a matter of
contempt; if anything, it is a matter of order, and as such the
process that occurred on March 27 did not offend any Standing
Order, practice or precedent.
I have had an opportunity to
review the Hansard for last Thursday, the written
submissions of the member for Renfrew-Nipissing-Pembroke and the
member for Niagara Centre, and the relevant Standing Orders,
precedents, practices and authorities.
I begin by addressing the
arguments that were raised concerning the constitutionality of
the Budget presentation, or the question of whether a
constitutional convention exists respecting the Budget
process.
As members will know, Speakers
have ruled on numerous occasions that it is not open to the
Speaker to give a decision upon a constitutional question or
decide a question of law.
It is settled in our precedents,
and indeed in the practices and precedents of parliaments
throughout the Commonwealth, that legal and constitutional issues
are best left to the courts and to litigants.
For instance, the 4th
edition of Australia's House of Representatives Practice
indicates the following (at pages 189 and 190):
[T]he obligation to interpret
the Constitution does not rest with the Chair.... [T]he only body
fully entitled to do so is the High Court. Not even the House has
the power to finally interpret the terms of the Constitution....
[I]t is not the duty of the Speaker to give a decision on (to
interpret) a question of law....
Citation 168(5) of the
6th edition of Beauchesne states that "[t]he
Speaker will not give a decision upon a constitutional question
nor decide a question of law, though the same may be raised on a
point of order or privilege," as indeed has occurred
here.
Therefore, the Speaker has no
authority make a determination of prima facie breach of
privilege or contempt where such a determination is based on the
constitutionality or legality of the presentation of the March 27
Budget outside the House; this House is not the proper place for
those questions to be resolved. However, I will consider the case
that has been made by the member for Renfrew-Nipissing-Pembroke
and the member for Niagara Centre to the extent that it does not
put the Speaker in the position of having to decide a
constitutional or legal issue.
Before doing so, I want to
reflect on the argument of the Government House Leader, who
suggests that the Speaker should address the Budget issue by
looking to the Standing Orders. He also suggests that if the
Standing Orders do not resolve the matter, then and only then the
Speaker should look to practice and precedent, and that if
practice and precedent do not resolve the matter, then and only
then the Speaker should look to the parliamentary authorities. In
effect, the Government House Leader contends that the Budget
process on March 27 was in order and that as such it is not a
matter of contempt. In view of this argument, I shall initially
address whether anything about that process raises a matter of
order.
By way of background, it should
be noted that on March 27, just before the Minister of Finance
presented the Budget in Brampton, the Budget and related papers
were deposited with the Clerk of the House pursuant to Standing
Order 39(a). That Standing Order reads as follows:
Reports, returns and other
documents required to be laid before the House by any Act of the
Assembly or under any Standing Order or Resolution of the House,
or that any minister wishes to present to the House, may be
deposited with the Clerk of the House, whether or not on a
Sessional day, and such report, return or other document shall be
deemed for all purposes to have been presented to or laid before
the House. A record of any such document shall be entered in the
Votes and Proceedings on the day it is filed except that
where it is filed on a day that is not a Sessional day, it shall
be entered in the Votes and Proceedings of the next
Sessional day.
Standing Order 39(a) does not
specifically indicate whether the Budget and related papers are
"documents" within the meaning of that Standing Order. However,
it gives ministers a wide latitude to deposit with the Clerk of
the House any documents they wish to present to the House -- and
even if the House is not meeting. I appreciate that Standing
Orders 57 and 58 provide for a Budget process inside the House,
but they do not prohibit a supplementary Budget presentation
outside the House. I doubt that the House contemplated the
occurrence of a supplementary Budget process outside the House
when it created Standing Order 39(a), but I am satisfied that the
House intended that this Standing Order should be given a broad
interpretation, and so that is what I am giving it.
I am reinforced in this view by
the knowledge that on April 20, 1988 the Votes and
Proceedings, which were published under the authority of
Speaker Edighoffer, indicate that the Budget and Budget papers
were deposited with the Clerk of the House pursuant to what is
now Standing Order 39(a).
I appreciate that the procedural
circumstances in 1988 were different than what they are in 2003.
In 1988, the calculated reading of petitions in the House by
members of one of the Opposition parties prevented the Treasurer
from making the traditional Budget presentation and speech on the
floor of the House on Budget day. In addition, the House had
denied the Treasurer's request for unanimous consent to end the
routine proceeding "Petitions" at 4 p.m. on Budget day so that he
could move the Budget motion and present the Budget. In the wake
of these developments, the Treasurer deposited the Budget and
related papers with the Clerk of the House in order to protect
the confidentiality of the Budget process and to release the
lock-up. I refer members to page 142 of the Journals and
pages 2654 and 2655 of the Hansard for April 20, 1988.
These extenuating circumstances were not present in the 2003
Budget process. Even if they were, I cannot see how they are
relevant to determining whether or not the deposit of a
particular document with the Clerk of the House pursuant to
Standing Order 39(a) is a matter of order, the interpretation of
which does not turn on the presence or absence of extenuating
circumstances.
The other distinguishing feature
about the 1988 Budget process is that the House was actually
meeting. In the case before me now, the House was not meeting
because the Legislature had been prorogued on March 12. I have
reflected on whether the Standing Orders permit the Budget to be
deposited with the Clerk of the House after the Legislature has
been prorogued. I find that our practice has been that all manner
of documents have been deposited with the Clerk of the House in
the intersession period, and that these documents have been
recorded in the Votes and Proceedings soon after the
commencement of the new session. On this point, I refer members
to the Votes and Proceedings for May 1, which indicates
(at pages 9 and 10) that 37 items, including the 2003 Budget and
related papers, were tabled in the interval between the third and
fourth sessions.
If there was nothing out of
order concerning the deposit of the Budget and related papers on
March 27, was there anything out of order in what the government
did next? I am referring here to the Budget-like speech by the
Minister of Finance, in a private facility, not inside the House
or the precincts, before an invitation-only audience selected by
the government. The argument was made that the government was not
respecting the traditions of the House -- in particular, the
tradition that the Budget should be presented formally in the
House.
Looking to our precedents, I
note that, apart from the 1988 Budget incident, there have been
other occasions when a Budget or a Budget-type speech has not
been presented inside the House. On April 21, 1993, Speaker
Warner made the following statement (at page 160 of the
Hansard for that day) concerning the government's
intention to present its Social Contract proposals, which some
members referred to as a mini-Budget, outside the
House:
I think the honourable member
for Parry Sound knows my views on this subject. I hold a very
strong view that matters of substance dealing with Parliament
should be announced in Parliament. I think that's a very sound
principle.
The member will also know that
for better or worse there is nothing in our standing orders or
procedures which compels ministers to make statements in the
House, including budgets, and indeed there is nothing out of
order about announcing a budget outside of the House, and if
memory serves, that in fact has occurred in this
province.
But I would reiterate that all
matters of substance of a parliamentary nature should be made
here. I have no control over making that happen. I can only ask
that people do that.
Immediately thereafter, the
House refused a request for unanimous consent to allow the
Treasurer to present his proposals to the House.
And on Budget day in 2001, the
House refused two government requests for unanimous consent to
recess the House so that the Budget could be presented to the
House. After the first request was refused, the Speaker indicated
that "if there is not unanimous consent [to recess], the Minister
of Finance does not need to read the speech in here." Shortly
after this ruling, the Budget speech was delivered in the House
when the government was able to secure the adjournment of the
House, which does not require unanimous consent. I refer members
to pages 559 to 562 of the Hansard for May 9,
2001.
What I am essentially saying,
then, is that the 2003 Budget process does not raise a matter of
order. The Government House Leader submits that if that is so,
then that process is not a matter of contempt. I disagree because
'order' is conceptually distinct from both 'privilege' and
'contempt'. To exemplify the distinction, let me refer to the
January 22, 1997 ruling that was mentioned by the member for
Renfrew-Nipissing-Pembroke. In that ruling, a member rose on a
question of privilege to indicate that government advertising
amounted to contempt of the House, and the Speaker responded by
finding that a prima facie case of contempt was
established. Like the case before me now, the impugned incident
occurred outside the House and the precincts. Were I to accept
the Government House Leader's argument, it would have been open
to the Speaker in 1997 to rule that there was no prima
facie case of contempt -- and that it was not necessary for
him to consider the merits of the arguments based on contempt --
because the advertising in question did not offend a House rule.
In short, then, I say that a finding that nothing is out of order
about the Budget process does not preclude the Speaker from
assessing the merits of the arguments based on contempt. The
tiered process that the Government House Leader referred to --
that is, first the Standing Orders, then practice and precedent,
and then the authorities -- is applied to consideration of
matters of order, not matters of privilege or
contempt.
Before turning to those
arguments, I want to explain the meaning of contempt, and the
best way to do that is to first explain the meaning of privilege.
Parliamentary privilege is defined at page 65 of the 22nd edition
of Erskine May. Like Erskine May, Standing Order
21(a) indicates that there are two overarching categories of
privilege. The first category consists of privileges that are
enjoyed by the House collectively -- the power to discipline
(that is, the right to punish persons guilty of breach of
privilege or contempts, and the power to expel members), the
right to regulate its own internal affairs, the authority to
maintain the attendance and service of its members, the right to
institute inquiries and to call witnesses and demand papers, the
right to administer oaths to witnesses, and the right to publish
papers containing defamatory materials. The second category
consists of privileges that are enjoyed by individual members --
freedom of speech, freedom from arrest in civil actions,
exemption from jury duty, and exemption from attendance as a
witness in the courts.
Having outlined the meaning of
privilege, I want to refer to a May 9, 1983 precedent in which
Speaker Turner ruled on a question of privilege concerning a
Budget leak. The Speaker made the following ruling, which can be
found at pages 38 and 39 of the Journals for that
day:
Budget secrecy is a political
convention as is the practice that the Treasurer presents his
budget in the House before discussing it in any other public
forum. It has nothing to do with parliamentary
privilege.
. . .
As I stated in my ruling of
February 1st, 1983, "although it is a courtesy to the Assembly
for a Minister to release information in the Assembly before
releasing it to the press or the public, it is not a breach of
the privileges or rules of the Assembly if this does not
happen."
In effect, Speaker Turner stated
that the presentation of the Budget was not a matter that fell
under any head of collective or individual privilege. Given this
ruling, I find that a prima facie case of privilege has
not been established with respect to the presentation of the 2003
Budget outside the House.
I now turn to the issue of
whether the 2003 Budget process raises a matter of contempt. Let
me begin this part of the ruling by indicating that Erskine
May defines contempt in the following terms (at pages 108,
117, and 120 of the 22nd edition):
Generally speaking, any act or
omission which obstructs or impedes either House of Parliament in
the performance of its functions, or which obstructs or impedes
any Member or officer of such House in the discharge of his duty,
or which has a tendency, directly or indirectly, to produce such
results may be treated as a contempt even though there is no
precedent of the offence. It is therefore impossible to list
every act which might be considered to amount to a contempt, the
power to punish for such an offence being of its nature
discretionary....
. . .
Indignities offered to the House
by words spoken or writings published reflecting on its character
or proceedings have been punished by both the Lords and the
Commons upon the principle that such acts tend to obstruct the
Houses in the performance of their functions by diminishing the
respect due to them.
. . .
Other acts besides words spoken
or writings published reflecting upon either House or its
proceedings which, though they do not tend directly to obstruct
or impede either House in the performance of its functions, yet
have a tendency to produce this result indirectly by bringing
such House into odium, contempt or ridicule or by lowering its
authority may constitute contempts.
That is what Erskine May
says on contempt.
In the Canadian House of
Commons, on October 10, 1989, Speaker Fraser explained the
difference between privilege and contempt in the following terms
(at page 4459 of the Hansard for that day):
[A]ll breaches of privileges are
contempts of the House, but not all contempts are necessarily
breaches of privilege. A contempt may be an act or an omission;
it does not have to actually obstruct or impede the House or a
member[;] it merely has to have the tendency to produce such
results. Matters ranging from minor breaches of decorum to grave
attacks against the authority of Parliament may be considered as
contempts.
Maingot's Parliamentary
Privilegein Canada indicates that contempt cannot be
codified -- it has no limits. It states the following (at pages
226 and 227 of the 2nd edition):
[T]he "privileges" of the House
cannot be exhaustively codified; there are many acts or omissions
that might occur where the House would feel compelled to find
that a contempt has taken place, even though such acts or
omissions do not amount to an attack on or disregard for any of
the enumerated rights and immunities.
. . .
As a Speaker said, "...the
dimension of contempt of Parliament is such that the House will
not be constrained in finding a breach of privileges of Members,
or of the House. This is precisely the reason that, while our
privileges are defined, contempt of the House has no limits. When
new ways are found to interfere with our proceedings, so too will
the House, in appropriate cases, be able to find that a contempt
of the House has occurred."
I also want to remind members
that the authority to decide whether or not there is a contempt
of the House resides with the House -- not with the Speaker. In
this regard, Maingot states the following (at page
221):
While the Speaker may find that
a prima facie case of privilege exists and give the matter
precedence in debate, it is the House alone that decides whether
a breach of privilege or a contempt has occurred, for only the
House has the power to commit or punish for contempt.
How, then, does the Speaker
decide whether or not a prima facie case has been made
out? Again, Maingot is helpful in this regard. It states the
following (at pages 221 and 227):
A prima facie case of
privilege in the parliamentary sense is one where the evidence on
its face as outlined by the Member is sufficiently strong for the
House to be asked to debate the matter....
. . .
If the Speaker feels any doubt
on the question, he should ... leave it to the House.
Having reflected on these
authorities, I will apply them to the case before me now. It is
hard to recall a time in recent memory when a matter of
parliamentary process has so incensed people inside and outside
this province. Many Ontarians from all walks of life have
complained in an overwhelmingly negative way -- to my office, to
members directly, through various media, and to the government
itself -- that the government's approach to communicating the
2003 Budget to Ontarians has undermined parliamentary
institutions and processes.
As I have already indicated,
there have been occasions in the past when a Minister of Finance
or a Treasurer has neither personally presented the Budget in the
House nor read the Budget speech in the House. In the case at
hand, however, the government indicated that the events of March
27 were motivated by a desire (in the words of a March 12 press
release issued by the Ministry of Finance) to have "a direct
conversation with the people of Ontario."
To the extent that they imply
that parliamentary institutions and processes in Ontario tend to
interfere with the government's message to the public, such
statements tend to reflect adversely on those institutions and
processes. If the government has a problem with those
institutions and processes, or if it wants to improve them, why
did it not ask the House sometime during the last session to
reflect on the problem and to consider appropriate changes?
Traditional ways to do just that would be to introduce a bill,
table a notice of motion, enter into discussions at the level of
the House Leaders, or ask the Standing Committee on the
Legislative Assembly to study and report on the problem. Given
the public's reaction to the government's decision to stage a
Budget presentation outside the House, I think Ontarians are
rather fond of their traditional parliamentary institutions and
parliamentary processes, and they want greater deference to be
shown towards the traditional parliamentary forum in which public
policies are proposed, debated and voted on.
When the government or a member
claims that a Budget presentation is needed outside the House
well before it happens inside the House in order to communicate
directly to the people or because of a perceived flaw in the
parliamentary institution, there is a danger that the
representative role of each and every member of this House is
undermined, that respect for the institution is diminished, and
that Parliament is rendered irrelevant. Parliamentary democracy
is not vindicated by the government conducting a generally
one-sided public relations event on the Budget well in advance of
members having an opportunity to hold the government to account
for the Budget in this Chamber.
I can well appreciate that
parliamentary proceedings can be animated and often emotional,
and they can be cumbersome. It may not be the most efficient of
political systems, but it is a process that reflects the reality
that members, like the people of Ontario, may not be of one mind
on matters of public policy. A mature parliamentary democracy is
not a docile, esoteric or one-way communications vehicle; it is a
dynamic, interactive and representative institution that allows
the government of the day to propose and defend its policies --
financial and otherwise. It also allows the opposition to
scrutinize and hold the government to account for those policies.
It is an open, working and relevant system of scrutiny and
accountability. If any members of this House have a problem with
the concept of parliamentary democracy, then they have some
serious explaining to do.
I have a lingering unease about
the road we are going down, and my sense is that the House and
the general public have the same unease. Let me summarize it by
posing the following questions:
First, what does the planned
presentation of a Budget speech outside the House suggest about
the relevancy and primacy of Parliament? It is one thing not to
make the traditional Budget presentation in the House because the
government is backed into such a decision by an ongoing House
process or a Budget leak; it is quite another for the government
to have a deliberate plan not to do so.
Second, if left unchallenged,
will this incident not embolden future governments to create
parallel, extra-parliamentary processes for other kinds of events
that traditionally occur in the House?
Third, why is an
extra-parliamentary process needed if there is already a process
in the House? If the answer is that it enables direct
communication with the public, to what extent does such an answer
undermine the representative, scrutiny and accountability
functions of Parliament?
From where I stand, the 2003
Budget process has raised too many questions for the House not to
reflect on them. In order to facilitate that exercise, I am
finding that a prima facie case of contempt has been
established. I want to reiterate that while I have found
sufficient evidence to make such a finding, it is now up to the
House to decide what to do. As I have said, only the House, not
the Speaker, can make a finding that there has been a contempt of
the House.
Before turning to the member for
Renfrew-Nipissing-Pembroke to move the appropriate motion, I want
to thank him, the member for Niagara Centre, and the Government
House Leader for speaking to these matters last
Thursday.
Mr. Conway then
moved,
Ensuite, M. Conway
propose,
That this House declares that it
is the undoubted right of the Legislative Assembly, in Parliament
assembled, to be the first recipient of the Budget of
Ontario.
After some time, pursuant to
Standing Order 9(a), the motion for adjournment of the debate was
deemed to have been made and carried.
Après quelque temps,
conformément à l'article 9(a) du Règlement, la
motion d'ajournement du débat est réputée avoir
été proposée et adoptée.
The House then adjourned at 6:00
p.m.
À 18 h, la chambre a
ensuite ajourné ses travaux.
le président
GARY CARR
Speaker
SESSIONAL PAPERS PRESENTED
PURSUANT TO STANDING ORDER 39(A):-
DOCUMENTS PARLEMENTAIRES
DÉPOSÉS CONFORMÉMENT À L'ARTICLE 39(A) DU
RÈGLEMENT
Board of Funeral Services /
Conseil des services funéraires, Annual Report 2001 (No.
17).
Electrical Safety Authority,
Annual Report 2002 and 2003-2005 Business Plan (No.
16).
