Wednesday 4 May 1994

Subcommittee report

Committee business

Draft report: Freedom of information


*Chair / Président: Hansen, Ron (Lincoln ND)

*Vice-Chair / Vice-Président: Wessenger, Paul (Simcoe Centre ND)

Dadamo, George (Windsor-Sandwich ND)

Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND)

MacKinnon, Ellen (Lambton ND)

Mathyssen, Irene (Middlesex ND)

*McClelland, Carman (Brampton North/-Nord L)

*Morin, Gilles E. (Carleton East/-Est L)

*Sterling, Norman W. (Carleton PC)

Sullivan, Barbara (Halton Centre L)

Sutherland, Kimble (Oxford ND)

*Villeneuve, Noble (S-D-G & East Grenville/S-D-G & Grenville-Est PC)

*In attendance / présents

Substitutions present / Membres remplaçants présents:

Brown, Michael A. (Algoma-Manitoulin L) for Mrs Sullivan

Cooper, Mike (Kitchener-Wilmot ND) for Mr Paul Johnson

Hope, Randy R. (Chatham-Kent ND) for Mr Dadamo

White, Drummond (Durham Centre ND) for Mr Sutherland

Wiseman, Jim (Durham West/-Ouest ND) for Mrs MacKinnon

Clerk / Greffière: Freedman, Lisa

Staff / Personnel:

Girouard, Pat, Hansard Reporting Service

Sibenik, Peter, research officer, Legislative Research Service

The committee met at 1551 in room 151.


The Chair (Mr Ron Hansen): I bring to order the standing committee on the Legislative Assembly. I'm going to report on the subcommittee meeting we had. The subcommittee recommends the following:

(1) That the committee seek permission from the House leaders to travel to New Orleans for the National Conference of State Legislators.

(2) That the committee submit a budget to the Board of Internal Economy in the amount of $16,800 to cover accommodation, and that registration expenses be covered by the committee budget.

It was recommended by the subcommittee that members who were to travel would cover their own expenses -- the cost of the flight is approximately $400, and you would cover your own meals -- so that going would be open to all members of the committee.

Mr Jim Wiseman (Durham West): Do that again.

The Chair: The subcommittee decided that it would pay registration and accommodation and that members would pay their own expenses travelling to and from New Orleans and their meal expenses.

Mr Norman W. Sterling (Carleton): It's either that or nothing.

Mr Noble Villeneuve (S-D-G & East Grenville): The last time I was on one of these it was in Indianapolis, and by the time we came back, Peterson had called an election.

Mr Wiseman: Don't count on Bob doing the same thing.

The Chair: Any other comments?

Mr Randy R. Hope (Chatham-Kent): Do you have to be a permanent member of this committee?

The Chair: Are you a member of this committee? Well, it looks like you're subbed in anyhow.

Mr Wiseman: What would be the total bill? Any idea?

The Chair: Maybe the clerk can give us some other figures.

Mr Sterling: The $16,000 is based on how many members, Lisa?

Clerk of the Committee (Ms Lisa Freedman): The $16,800 is based on 14 people going. It would be 12 committee members, the clerk and the researcher. It's eight nights' accommodation, which would get us there the night before and take us right through to the end, at about $150, the Canadian equivalent of the US$110 for rooms. The registration fee is US$275 per person.

The Chair: And the flight is approximately $400.

Mr Sterling: Which would be the responsibility of the individual member who would go. It's my feeling that there is absolutely no way anybody would be able go to this conference if we include everything. The only way they're going to be able to justify it, in terms of the public perception, is if the member picks up part of the expense for himself or herself, rightly or wrongly.

The Chair: All in favour of the subcommittee's report on this? Opposed? No opposed.


The Chair: There's also a letter in front of you from the Speaker of the House. He would like to meet with the subcommittee to discuss these matters in further detail, if that would be acceptable to the committee. I'm going to have research take a look at other jurisdictions in terms of this particular area.

Mr Sterling: When we were talking about this in the subcommittee, it's a really narrow issue the Speaker's asked us about; that is, there's this unseemly race to the Speaker's chair to defer a vote. I think everybody in the Legislature, in all parties, agrees it's not a process which is pretty or adequate at this time, and the Speaker has asked us to resolve it.

In the subcommittee, our researcher, Mr Sibenik, indicated he had done a bit of preliminary research on the House of Commons, from where this rule arises. If we could hear how they are dealing with that, we may be able to come to some conclusion. I don't think it requires extensive consultations or deliberations to come to some conclusion. I think we're quite flexible on it. All we want is to have something definitive to go back to the Speaker with. Maybe Mr Sibenik could at this time summarize what they do at the House of Commons to resolve this kind of problem.

Mr Peter Sibenik: I have done some preliminary research, as indicated, and it seems to me that our standing order 28(g) is fairly similar to standing order 45(5)(a) of the House of Commons. Perhaps I can just read that into the record. It's a fairly lengthy one, but I'll read the salient extracts. It says:

"While the members are being called in," and this is for the purpose of a 30-minute vote, "either the chief government whip or the chief opposition whip may approach the Speaker to request that the division be deferred, in which case the Speaker shall defer the said division until a specified time, but in any case not later than the ordinary hour of daily adjournment on the next sitting day thereafter."

That's the essential part of standing order 45(5)(a) of the House of Commons. I believe our standing order 28(g), which was passed by the House in 1989, was drawn from this particular standing order.

From my communications with some of the staff at the House of Commons, it has been brought to my attention that the request up at Ottawa is typically oral and is submitted by the whip. It is not all that often in writing. Usually the whips will agree among themselves about when the deferral is going to occur, and the Speaker just accepts that at face value.

There has never really been a situation where there's been more than one of these requests been submitted at the same time. However, I am advised that if such a situation did arise, the Speaker would probably accept the first of these deferral notices. However, as I say, there's no definitive precedent on record.

With respect to the issue of "specified time," I am still reviewing the precedents on that particular expression, which appears in both the standing orders, ours and theirs, but it seems to me that in most situations it is to an am or a pm time, although I will say that in their standing order it says "not later than the ordinary hour of daily adjournment," whereas in our standing order it refers to "not later than 6 pm on the next sessional day." There is a bit of a distinction there.

That basically is the sum total of the research I've done to date.

Mr Wiseman: It seems to me that this can be solved relatively easily. If I might just throw this out, the order of acceptance should be based on government, opposition, third party. If there are three, then it would be done on the basis of the government whip having his forward. If the government doesn't have one and the other two parties do, it would be done on the basis of which one in that hierarchy of order they are presented. That would be the order. If there are three, it's government. If there are two, it would be opposition. If there's one, it would be whoever put it in.

Mr Villeneuve: Did I get you right, Mr Sibenik, that you say that in Ottawa it's an oral request?

Mr Sibenik: In most situations, I'm advised, it is an oral request, that's correct.


Mr Villeneuve: And it has to be from the whip or the acting whip or a deputy whip, or can it be from anyone?

Mr Sibenik: I have a few precedents that tend to suggest it can be from other than the chief whip, whether it's opposition or government. That is their practice. I've seen one that says "acting or assistant whip." It's perhaps a little different from our situation here, I'm not sure the precedent is parallel to ours, but that's their practice.

Mr Villeneuve: What we're trying to avoid is the foot race. At one point the question came up that someone with the paper was not sitting in his proper, assigned seat, that he sat next to the Speaker in order to be closer. Is this recognized? It's technical, but that's the problem. How do we avoid a race?

Mr Wiseman: I just gave you an idea.

Mr Villeneuve: That's one idea. The other one -- you know, there still could be a race.

Mr Wiseman: No, it's not necessary. You don't need a race. Even if all three parties put one in, it doesn't matter who got there first. The hierarchy of choice is based on government, opposition, third party -- or independent, I don't know. That's the hierarchy of choice.

Mr Villeneuve: And we'll have to stay with a certain limit, "no later than." I gather we're staying with that limit of no later than the next day within the working hours of the Legislature.

The Chair: Before 6 o'clock.

Mr Villeneuve: The other question is in terms of a specified time. Is "after regular proceedings" or "just prior to regular proceedings" a specified time?

Mr Sibenik: My correspondent tells me that usually it is to an am or a pm time. On the other hand, I've been taking a look at some of the precedents from the Hansard of the House of Commons, and it tends to suggest that there really isn't any specified time. It will just say "to a later time." That's what appears in the record in the House of Commons.

It could indicate a very specific time, an am or pm, but it doesn't indicate that on the face of the record. If there's further research that needs to be done on that particular score, I can do that if the committee wishes me to do that.

Mr Villeneuve: There was a discussion point as to what is a specified time. A member argued that a specified time would be not pertaining to "just prior to orders of the day" or "just subsequent to orders of the day," but a specified time like 3:30 pm or 5:45 pm.

Mr Sibenik: The Speaker ruled on that particular point and said that the practice in our House has been -- it can be, for example, 3:30 pm or "after routine proceedings," something of that nature.

Mr Villeneuve: We'll have to clarify that.

Mr Sterling: The problem that arises is that it becomes embroiled in the other standing orders. For instance, if the government House leader is moving towards closure -- it is a requirement of the government to have three days of second reading on a bill, and that particular bill has to be called as the first order of the day, so if you get into orders of the day and the first part of business is the vote, then you've knocked that day out in terms of the government moving towards closure on that particular matter.

There can be other machinations involved in this. In other words, the House leaders or the whips or the parliamentarians can be crafty in how or where they put this. It can be part of the game that we play from time to time in the Legislature.

In my view, another suggestion, other than the one Mr Wiseman puts forward in terms of picking priority just on the basis of party, is that the whole idea of the rule was to give each of the parties the opportunity to postpone a vote when it was going to be difficult to muster the troops that day. It only becomes a problem when there isn't agreement between the whips, and we've run into that a number of times. But if you go back to the original philosophy or the original reason for the rule, that is, to allow an accommodation in our process, a little bit of flexibility in our process, surely the idea of the rule is to allow a significant amount of time between when the vote is called and when in fact you vote.

My view is that what happens should not be on the priority of party, but should be on the basis of when that particular time is specified in the motion, and the later time should be the time that is accepted by the Speaker. In other words, if party 1 says, "The vote shall be at 3:15," and party 2 says, "It will be at 4:15," and party 3 says, "It shall be at 5:45," it's 5:45. It's just a suggestion. The advantage of that is that I think there's less opportunity to play with the process.

Mr Gilles E. Morin (Carleton East): I'm sorry to be late. I was just told there was a debate on this issue.

I wonder if it would be possible to have the support of the committee to defer this debate to a bit later on, because when the Speaker announced he would ask this committee to look into the issue, I started to do some research. Unfortunately, I'm not through with it. Also, I've asked the help of the research staff to give me some advice. I find it's a bit too soon. You might want to give us a chance to look deeper into it so we can come up with something really significant, something we can all debate and then make a recommendation.

I was under the impression that we were to debate something else, and that was not the case. Apparently there was a decision to do it differently.

If there is unanimous consent, perhaps we could come back. We'll give you all the ammunition you want to discuss it, so you have something concrete in front of you. I think a lot of us did not do our research well, and I'd like to do mine well so I can come out with something which is significant.

The Chair: What is the feeling of the committee? Agreed?

Mr Paul Wessenger (Simcoe Centre): I certainly would agree. Some people might want to make some comments, though, before we do adjourn the debate on it.

Mr Hope: Some of us have opinions we'd like to express. I mean, everybody wants to do a lot of research. The definition of "specified time" has already been given by past practice in this Legislature. "Specified time" was following routine proceedings. That becomes the specified time.

The definition you're looking for in 28(g) is dealing with the words "specified time." Definition is determined by practice. In any proceedings in any adjudication, when there is a lack of definition, you find that the definition is given by past practice. Past practice has given the definition that "following routine proceedings" becomes the specified time; 5:45 becomes the specified time. As to definition of time, it's already been given, and I don't know where the argument is about specified time. Past practice has given that.

As to the issue of when there's more than one, which one comes first, I would agree with the way Jim had put it forward: If there were three put forward, then the government's would come first. If there were two from the opposition parties, the official opposition's would go first. If there was one, then there's not a problem.

Looking at what was directed to us on the question of specified time, which was raised on a point of order, because it is not defined it in the piece of legislation it's already been decided what "specified time" is. Specified time can mean after routine proceedings and it can mean a definite time of the clock. It's already been determined what "specified time" is, and I wouldn't want to change the practice that's already been given. The Legislature has already determined what "specified time" means by past practice.

The issue around which one would come first isn't in there, and I would concur with what Jim put forward respecting that. It seems like it's becoming not whether somebody is unable to get the troops up for the vote, but, "When do we want this vote to happen so we can move the legislative calendar around for that day?" That seems to be the issue, versus what Norm explained about not being able to muster the troops for a vote.


Mr Michael A. Brown (Algoma-Manitoulin): The reason this rule exists, in my view, is for occasions where the House leaders have not come to any agreement upon how the House will be ordered, or where the House leaders are somewhat surprised by something that happens: a rather sudden turn of events, and a vote that happens that really wasn't expected at that time.

It seems to me that the government is the one that should be most interested in knowing when votes are. In my experience, oppositions have rarely fallen in a parliamentary democracy. Governments do. So it's the government that has the most interest, although opposition parties also have an interest, in being able to get its people there and have its people know.

My suggestion, for what it's worth, is relatively simple. If there is more than one request, the time should be at 5:45 the following day. The Speaker then, if he has more than one request, would automatically know the ruling will be 5:45 the next day. That will give the government a chance to assemble its members, it will give the opposition parties an opportunity to have theirs there, and that's what this is about. It would seem very straightforward. That's my view of how this should happen.

I'm reluctant to follow the suggestion that the government gets to decide what time the vote is. I don't think that's fair to the opposition parties, and the Speaker's role often is to protect the minority in Parliament. It seems to me that giving the government first priority in this is a mistake. It may be just as much a mistake to give the official opposition the priority. That's why I favour having it at 5:45 if there is any dispute in terms of what time the vote will be taken the next day. I think that's perfectly logical, and that would be my personal advice about how we might proceed.

Mr Wessenger: Mr Sterling has raised the issue here that the problem with the foot race really has nothing to do with the deferral time but rather with the gamesmanship with respect to the other rules. I think he zeroed right in on the problem. I'd like to come up with a solution that will take it out of the gamesmanship so there's no gamesmanship aspect with respect to the issue. If we come to a conclusion in that way, I think it would be an easy solution, once we've taken it out of the area of gamesmanship.

If there's no advantage to either party in particularly trying to specify a time, I think that would be the best solution. With that in mind, I'm directing it to the researcher, that any suggestions and options he's looking at would be how to ensure that nobody can gain any particular advantage by getting a different time.

Mr Sterling: Quite frankly, I think what we should do is just take the three or four suggestions we've had so far and throw them at the House leaders, and that would be the end of it. They're going to negotiate this with their own self-interest in terms of playing the rules. Therefore, it doesn't really matter whether we all vote for Jim Wiseman's suggestion or Mike Brown's suggestion or my suggestion; they're going to negotiate it and figure out how important it is to them.

I don't think this is an earth-shattering rule and I don't think it's an earth-shattering problem. I think there are a lot more serious problems with our standing orders than this particular matter. So that's the way I'd like to deal with it. We've had, in my view, adequate discussion. I don't think any more research is necessary. I think we should just put forward Mr Wiseman's suggestion, my suggestion, Mr Brown's suggestion and say: "Take your choice. Negotiate it." That's the way the standing orders are eventually done: Either they negotiate a deal or the government comes in with a heavy hand and does it. As I say, I just don't think the rule is that important to spend a lot of time on it.

The Chair: I know it's important to the two Deputy Speakers who are sitting next to you, because I think someone had two people sitting on their laps one day.

Mr Morin: I don't think it's the House leaders' prerogative to decide. It's for the House to decide; it's for us to decide. It's our decision. It's our privilege. The more information we give to the House leaders, the more informed they will be, and then perhaps they will be able to arrive at a decision which is done on a friendly basis and not "Give me this, and I'll take that"; it doesn't become a negotiation. I think it should be information we bring to them and that they use common sense, just straight common sense.

This is why I would ask again if there is a possibility of deferring this meeting to another date. Give us a chance to do some proper research so we can come to a conclusion which is not political, which is simply good common sense, and also prepares the ground for the Speakers in the future.

The Chair: The committee has decided to defer this, but I think it's important that some of the remarks coming from the committee members, if you want to do more research --

Mr Wessenger: Mr Chair, you're assuming that's the consensus agreement. Mr Sterling doesn't agree.

Mr Morin: That's right. That's why I say that.

Mr Wessenger: If that was a motion from Mr Morin, I certainly would support that motion to defer.

The Chair: All those in favour of the motion?

Mr Wessenger: Is it a motion?

Mr Morin: I move that the debate on the issue we're debating be deferred to a further time that we decide upon.

Mr Hope: I understand where Gilles is coming from. He's trying to deal with this with common sense, and I thought we would do that. But my question is, how long will we take? Are we going to deal with this next week? Are we going to deal with it another week from now?

My understanding is that what you're trying to discover is two issues: (1) "specific time" and (2) dealing with which one comes first. Understanding what you're trying to bring across, I just want to know what time frame we're dealing with.

Mr Morin: Next week, and then we'll look at the whole section, not only at one specific issue. We'll look at the whole thing.

Mr Hope: What do you mean, the whole thing?

Mr Morin: We'll look at the whole section, 23(g).

Mr Hope: Which is what we've been directed to do.

Mr Morin: That's right.

Mr Wiseman: If this becomes a dragged-out thing, we might want to recommend to the Speakers to use the hierarchy approach to determine it in the interim, and that that wouldn't be a final decision. No. First come, first served, eh? Another race to the Speaker's chair?

Mr Drummond White (Durham Centre): I agree very strongly with Mr Morin. I think he has a very good point, that we should be making some informed decisions and offering some suggestions about this issue. I just want to be sure that the intent of the motion that that be what we do, that we come to an informed decision and would then respond back to the Speaker, so in a sense, following Mr Morin's suggestion, we're taking this in our hands.

Mr Sterling: Common sense says to me we deal with it now. Whether you like it or not, what happens in these things is that the House leaders do negotiate what will happen in the standing orders, and the parties stand behind their House leader in terms of their argument. We discuss it in caucus. That's the way the standing orders have for ever been determined here.

For us to spend another afternoon, in my view, on this matter doesn't make any sense. The issue isn't that big. To avoid another afternoon, I'm quite willing to accept what has been ruled by the Speaker in terms of time. I'm quite willing, personally, to accept Mr Wiseman's suggestion that a hierarchy be established. I just don't think it's that important that we drag this issue out. But I'm in the hands of the committee. If you want to research this matter and deal with it at length, that's fine.

Mr Villeneuve: This committee is the Legislative Assembly committee, and it is incumbent on and the responsibility of this committee to formulate the rules. If we turn it over to the House leaders, I think we've abrogated our responsibilities. We've been asked by the Speaker to clarify. I'm quite prepared to wait an extra week. Jim Wiseman's suggestion is probably a good one; it may be one of a couple of alternatives we'll have. I'd like to see an alternative. I have no problem with what you've suggested, but I'd like to see possibly another jurisdiction.

Mr Brown: I have no problem with the deferral, although I have a lot of sympathy for what Mr Sterling says. But in deferring it, I don't think we're changing anything, Mr Sterling, in that I don't think the House leaders are going to deal with it in the interim anyway. I think whatever advice we could get on what other jurisdictions happen to do may be useful, and in the meantime we could all perhaps give a little more thought to alternatives.

But having said that, it will probably still, regardless of what we think, be negotiated at House leaders. But our advice, if it's good advice, may be accepted. I don't have a problem voting for the deferral. I just don't think it changes very much.

The Chair: All those in favour of the motion to defer till next week? Opposed? Two opposed. Carried.


The Chair: The next item on the agenda is the freedom of information draft report, which was handed out. Does everybody have a copy? Do you want to have an open session or a closed session on this? The last time we were discussing it, Hansard had quite a problem trying to keep track of section this and section that.

Mr Sterling: I don't care whether Hansard keeps it. If you want to dismiss Hansard, that's fine and dandy. I just don't think we should restrict anybody from coming in the room when we're talking about freedom of information.

The Chair: No, it's just that we'll allow Hansard to be dismissed. Anybody opposed?

Mr Mike Cooper (Kitchener-Wilmot): No. The problem is that we're just doing a draft report, and it's just like negotiations. When something gets released when it's halfway done, people have expectations.

Mr Sterling: Are we still going to have electronic Hansard on? I mean, if people want to watch us?

The Chair: Yes, they can watch it.

Mr Wiseman: Let them watch.

Mr Villeneuve: No problem there.

Ms Pat Girouard: There's no chance that you're going to want Hansard to come back at any point this afternoon?

The Chair: No. This would be the last item we have.

The committee continued in closed session at 1623.