Q&A: Elizabeth May

by Aaron Wherry

While she took a short break from the House this morning, the Green MP and I spoke about C-38 and her point of order. In the process, as you will see, she corrected my own mistaken impression of what yesterday’s intervention sought.

Q: When did you first start to think about moving this point of order?

A: To tell you the truth, last year. If you want to go back to Hansard, my very first question in Question Period, last June, was to Jim Flaherty to ask whether he planned to put forward an omnibus bill with many measures. And the response was no. And I was very relieved and I went to him afterwards and I said, so really, it’s not going to be one of these big ones? Because I hadn’t been in the House obviously—I wrote extensively on it, I read the bills, I blogged about them, in 2009 and 2010, that these were outrageous. So it’s been on my radar for a long time, that under Stephen Harper, obviously omnibus bills have come up before, that’s why there’s a lot of precedent for me to go through in Hansard, but really nothing like this, nothing like the last few years. I actually anticipated that Peter Van Loan might say, as he did yesterday, we’ve had much longer bills. Yeah. But only yours. And not ever challenged. There are no Speaker’s rulings on the omnibus budget bills of 2009, 2010. So the first piece of research that I asked the parliamentary library to do for me last year was on the procedural rules around omnibus budget bills. Because if there had been one last summer and I was so sure there would be one. And then I actually voted for the budget implementation bill last year because it was very clever, it was a series of measures that nobody could be against. It was removing the GST and HST on the sale of poppies to the Canadian Legion and reducing the licensing and fees required to operate a canoe or kayak. I mean, I’m not kidding, it was a bundling together of friendly moves. And it wasn’t unanimously passed, but I did vote for it. This time around, I didn’t expect this, I have to say. Having read the budget, the budget was quite bad enough that I wasn’t thinking, oh, I bet they’ll do worse in the budget implementation bill. Somehow it had receded in my mind. But the research had been done by the parliamentary library. Now, of course, I did substantially more research than the summary I got from the parliamentary library, but at least I had a grounding in the topic.

Q: To your knowledge, has a Speaker ever broken up an omnibus bill?

A: I’m not asking to break it up. Because they have made rulings that they will not break up an omnibus bill. If it’s a legitimate omnibus bill. My argument is different.

Q: Right.

A: So I’ve gone back to the most compelling language from various Speakers … there are lots of interesting and relevant Speakers’ comments. But John Fraser, as Speaker in 1988, was called upon to rule on whether it was appropriate for the government of the day to bring in an omnibus bill that implemented the free trade agreement. And obviously that brought in a huge variety of implications across the economy, lots of legislation affected. But he really clearly nailed down the rules and then he went through the process and said, this is an omnibus bill. It was a clear finding on the side that if it had been up to him, it sounded very much as though the energy bill of 1982, which was split up as a result of the actions of the House due to the bell-ringing episode, wasn’t a proper omnibus bill. So if you’re looking at where’s the precedent, there’s never been a bill that pretended to be an omnibus bill that wasn’t one that has been the subject of a Speaker’s ruling. Frankly, that’s why I argued what I argued. There’s no point going to the Speaker of the House and saying, break up an omnibus bill, because there’s lot of precedent that the Speaker does not have the authority to break up an omnibus bill. At least until the House creates different rules. But this isn’t a proper omnibus bill.

Q: So if this played out and the Speaker agreed with you, what would then happen?

A: Then the bill would be rejected. And speakers have rejected bills that didn’t meet Standing Order 68 or are in other ways deficient. Over the history of Parliament, Speakers have ruled bills out of order. The Speaker does have that power. The Speaker has a number of options. Obviously he could rule against me. He could rule for me 100% and say this bill is rejected, it’s not a proper omnibus bill. Or he could do the sort of partway ruling, such as what Peter Milliken did around the Afghan detainee documents and say, look, I’m prepared to find prima facie that this isn’t a properly constructed piece of omnibus legislation, these are the rules around an omnibus bill and I’m asking if the government and the parties in the House, together, would like to present C-38 in proper form. In other words, punt it back to the government and the opposition parties to sort it out. I think in a lot of ways that would be a helpful thing for the Speaker to do. Obviously helpful in terms of protecting democracy, which is my main argument. But in the political undercurrents that I’m seeing right now, the movement against C-38 is growing and it’s growing in Conservative ranks, it’s growing in Conservative heartland. There are an awful lot of people against this legislation … Keith Ashfield, in bringing in these changes, said changes to the Fisheries Act, which of course weren’t part of the budget, we have to bring in these changes to the Fisheries Act because there are so many municipalities across the country complaining about the current Fisheries Act. Well, this weekend, the Federation of Canadian Municipalities, almost unanimously, voted to appeal to the Prime Minister to remove the fisheries legislation from C-38. They are very concerned about it. Not only was that a group the government didn’t think would oppose them, they were claiming that group was on board. I think they may have decided that by sticking a lot of controversial things inside a budget, nobody would ever notice them. But the opposition is building. And in ways that they probably didn’t expect. Because they probably thought, oh, it’ll be the usual suspects, the groups we’ve already attacked and smeared as radicals and getting money from foreign sources and we can ignore those people because we’ve shut them down and we’ll just ride this out. But I don’t think that’s the case anymore. And I think if the Speaker can provide them the space, who knows, they might actually appreciate an out, so they can get what they need passed and reintroduce properly the bills that have nothing to do with the budget.

Q: Is there any argument to be made that your point of order should have been introduced before this bill was passed at second reading?

A: No, not really. You can introduce a point of order at anytime. And at the time of that, there were negotiations taking place between the official opposition and the government of the day and who knew how that was going to turn out? In some ways, there could have been an argument that I should’ve waited to see what it looked like when it came out at the other end of committee. And I thought about that, but realized this is a substantive point of order and I expect that Speaker Scheer will do it justice. And that means listening to the arguments from the other parties in the House, constructing, researching and writing what will be, one way or the other, a precedent-setting decision. It’s not something done lightly and therefore I didn’t want to squeeze it so that my point of order would come when the bill came back at report stage.

Q: And would you say you feel confident at this point?

A: I feel confident that I’ve written an argument that is legally correct.




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Q&A: Elizabeth May

  1. It is telling that May distinguishes between what is “legally correct” and how the speaker will rule. It says a lot about how Scheer is seen.

    • It is also telling that, no matter what Scheer rules, May knows she is right.

      • Actually, she said she “feels confident” the argument is “legally correct”. Not the same thing.

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