Parliamentary Privilege / Rights of the House

Contempt of the House: failure of the Ministry to table documents required by statute

November 21, 2001

Debates, pp. 7380-1

On October 30, 2001, Gurmant Grewal (Surrey Central) rose on a question of privilege. He alleged that Anne McLellan (Minister of Justice) had breached the privileges of the House by failing to observe a statutory requirement to table statements of the reasons for 16 regulatory changes made by her department under the Firearms Act, between September 16, 1998, and December 13, 2000. While Mr. Grewal acknowledged that the statutory requirement did not specify a particular time within which the Minister must table statements of reasons, he insisted that it needed to be done within a reasonable time frame. He further argued that the Minister had breached an Order of the House expressed in the statute and had deprived Members of the ability to verify the validity of her reasons. After hearing from other Members, the Speaker took the matter under advisement.^[1]

On November 21, 2001, the Speaker delivered his ruling. He drew the attention of Members to the fact that on November 5, 2001,^[2] the Minister had tabled the 16 statements of reasons, along with an additional statement pertaining to a subsequent regulatory change. The Speaker ruled that, had there been a tabling deadline included in the legislation, he would not have hesitated to find a prima facie case of contempt. However, to have done so in this instance would have amounted to the Speaker inappropriately substituting his own judgement for that of Parliament’s. As no deadline was specified, he could only find that a legitimate grievance had been identified. He also took the opportunity to specifically identify defects that were contained in the Minister’s tablings, and encouraged the Minister to exhort her officials to demonstrate due diligence in complying with these statutory requirements.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised by the hon. Member for Surrey Central on October 30 concerning the failure of the Minister of Justice to table her reasons for making certain regulations under the Firearms Act.

I would like to thank the hon. Member for Surrey Central for having drawn this matter to the attention of the House as well as the Government House Leader and the hon. Member for Yorkton–Melville for their contributions on this point.

The hon. Member for Surrey Central claims that in ignoring her obligations under the Firearms Act when making regulations the Minister has breached the privileges of the House.

I should point out to hon. Members the Firearms Act provides that where the Minister is of the opinion that the ordinary regulatory process in section 118 should not be followed she may in cases specified by the law proceed directly to the making of new regulations or to the modification of existing regulations. However in such cases the Minister is required by subsection 119(4) of the Act to table in both Houses a statement of her reasons for so doing.

The hon. Member for Surrey Central drew to the attention of the House 16 cases between September 16, 1998, and December 13, 2000, where the Minister made use of this exceptional power but failed to table the required documents in the House. He argued that although no deadline is specified in the Firearms Act it is surely unreasonable for the House to be kept waiting for up to three years for the tabling of the Minister’s reasons.

I draw to the attention of hon. Members the fact that the Minister tabled the 16 statements of reasons, along with an additional such statement concerning a subsequent regulatory change, on November 5, 2001.

As Speaker this case causes me some difficulty. In declining to include a reporting deadline in the statute, Parliament has provided the Minister with some latitude in fulfilling the requirement to table reasons. It would not be appropriate for the Speaker to impose such a deadline and so substitute his judgment for the decision of Parliament, much as he might enjoy doing so.

Nevertheless the Chair appreciates that the hon. Member has a grievance, one that appears to be entirely legitimate. The alacrity with which the Minister was able to fulfill her statutory obligations following the raising of this question lends some credence to the Member’s claim that the delay in presenting these documents has been unreasonable.

Speaker Fraser in delivering a ruling on a related question stated the following on April 19, 1993, p. 18105 of Hansard:

I am not making any of these comments in any personal sense and Members will understand that but there are people in departments who know these rules and are supposed to ensure that they are carried out.

In the case before us, the legislation drafted by the Justice Department contained from the outset the provisions obliging the Minister to table in Parliament reasons why section 118 should not apply for certain regulations. Furthermore, in the Orders in Council relating to each case, a standard paragraph is included which reads as follows:

And whereas the Minister of Justice will, in accordance with subsection 119(4) of the Firearms Act, have a statement of the reasons why she formed that opinion laid before each House of Parliament;

Therefore, Her Excellency, the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to paragraph X of the Firearms Act, hereby makes the annexed regulations—

The Chair must conclude from this evidence that far from being an arcane technicality cloaked in some dusty statute or other, the requirement for tabling of reasons is not only perfectly clear in the legislation but is invoked as an integral part of each such Order in Council. All the more reason, it seems to me, for the department to comply readily with the requirement given a modicum of efficiency in advising the Minister.

In the case before us, when the missing documents were finally tabled several sets of supporting documents tabled by the Minister lacked the Privy Council document which provides an easy link to the regulations cited by the hon. Member for Surrey Central. In the case of the material relating to P.C. 2000-1783, and I cite Journals of November 5, 2001 at page 794, the Privy Council document was provided in only one official language.

Strictly speaking, these defects do not negate the Minister’s fulfillment of her statutory obligation, but they do point to a carelessness that appears to be characteristic of the way in which these matters are being handled by the officials in her department.

Were there to be a deadline for tabling included in the legislation, I would not hesitate to find that a prima facie case of contempt does exist and I would invite the hon. Member to move the usual motion. However, given that no such deadline is specified, I can only find that a legitimate grievance has been identified.

I would encourage the hon. Minister of Justice to exhort her officials henceforth to demonstrate due diligence in complying with these and any other statutory requirements adopted by Parliament. I look forward in future to the House being provided with documents required by law in a timely manner.

In closing, I would like to commend the hon. Member for Surrey Central for having drawn this serious matter to the attention of the House. I might also remind all hon. Members that the study of departmental estimates in committee offers an excellent opportunity to hold Ministers and their officials accountable, not only for departmental policy and programs but also for their all important relations with Parliament, including their compliance with these sorts of requirements laid down in the laws that we pass in this place.