C-59: How can Parliament justify passing this bill?

The NDP wants hearings and the file has been sent to the OPP, so what will Parliament do with the controversial provisions of C-59, the latest budget bill?

Adrian Wyld/CP

Adrian Wyld/CP

The test presented by Bill C-59, the government’s latest omnibus budget bill, is at least now even more stark.

Parliament will soon be tested directly—asked whether it wishes to fully air and understand the details of something it is being asked to pass. Beyond that, it is even more plausible that Parliament could be asked to pass legislation that could affect a police investigation.

On Friday, I wrote about the government’s attempt to retroactively amend the purview of the access-to-information system via the latest budget bill, a move that would nullify unresolved allegations that government information was wrongly withheld and destroyed. The Canadian Press’s Bruce Cheadle was the first to report on the ramifications of the relevant clauses in Bill C-59, and his initial story on the matter is here.

I also spoke with Information Commissioner Suzanne Legault, who issued a special report on the amendments last week. Some of my conversation with Legault aired on Maclean’s on the Hill, but here is a longer cut.

For the record, I asked the office of Public Safety Minister Steven Blaney whether Blaney had a response to the commissioner’s specific concerns that “the RCMP destroyed records responsive to the request with the knowledge that these records were subject to the right of access guaranteed by subsection 4(1) of the [Access to Information Act]” and that “The proposed changes in Bill C-59 will deny the right of access of the complainant, it will deny the complainant’s recourse in court, and it will render null and void any potential liability against the Crown.”

In response, Blaney’s spokesman sent a statement that reads, “Our Conservative government is pleased it has fulfilled its commitment to end the wasteful and ineffective long-gun registry once and for all. It was still possible to access outdated copies of the long-gun registry through Access to Information legislation due to a bureaucratic loophole. The will of Parliament has been made clear; all copies of the registry were to be destroyed. The technical amendment addresses this.”

The RCMP has said that it disputes the commissioner’s finding and that it would “vigorously defend against any accusation of unlawful conduct in respect of the handling of this Access to Information request.”

On Tuesday afternoon, Cheadle reported that the information commissioner’s findings have been forwarded to the Ontario Provincial Police. The commissioner had referred the matter to the Justice minister on March 26. According to Cheadle, the minister’s office forwarded it to the Public Prosecution Service last week, and the public prosecutor subsequently referred the matter to the OPP.

Meanwhile, the NDP is preparing to put a motion before the access to information, privacy and ethics committee to study Legault’s report. The motion would have the committee “request from the Department of Justice all of its documents relating to this case” and would seek to hear from “the Information Commissioner of Canada, the Attorney General of Canada, the Minister of Public Safety and Emergency Preparedness, the Minister of Finance, the Commissioner of the RCMP, the RCMP ATIP Coordinator, the Director of the Public Prosecution Service of Canada, and the RCMP officers who destroyed the registry data.”

That seems like the outline of a proper hearing. So is that what we will now get?

That depends, first, on the willingness of Conservative MPs. The membership of the committee is six Conservatives, two New Democrats and one Liberal. In theory, and perhaps in a better version of Parliament, we might imagine even just two Conservatives siding with the New Democrats and the Liberal to approve the study, but I’m not sure I’ve ever heard of a committee vote deviating from the party lines. So, failing a decisive split, would the Conservative members of the committee ever vote en masse to approve such a study? Put another way, in light of how much executive power is sometimes said to be exerted on committees: Would the Prime Minister’s Office and the government ever agree to have MPs approve such a study?

(Another hypothetical: What are the odds that some critical mass of Conservative backbenchers would, publicly or privately, express misgivings about what Parliament is being asked to do here? Whatever happened to the Backbench Spring, anyway?)

That would probably be a political calculation: Will it hurt more to be seen rushing this through Parliament without any meaningful study, or to have the details aired out during committee hearings? Even without knowing what all remains to be revealed, the cynical response would be that it’s always better to just ram a measure through Parliament and deal with complaints about mere “process.”

And while the NDP’s motion is a heartening move, it still remains to be seen how long and loud the New Democrats and Liberals are willing to scream about this. In question period last week, this received only a few questions from a Liberal MP.

So what about the OPP?

As Cheadle clarified, we don’t know that there is an active investigation into the RCMP’s handling of the access-to-information request in question. (I am also told that no one has ever been charged with an offence under the Access to Information Act.)

A police investigation, or the possibility of same, might not preclude parliamentary hearings, but, lest anyone want to argue here that any hearings by Parliament should be set aside so long as a police investigation is a live possibility, let’s note the obvious corollary: That same standard should surely preclude Parliament from passing legislation that could undermine a police investigation.

The latter was a conceivable concern before yesterday’s news. As the information commissioner explained it to me on Friday: “The bill would erase the fact that this person ever made this request, would erase the fact that this person complained to my office, would erase the fact that we conducted an investigation, would erase the fact that we came to the conclusion that additional records are owing to this complainant, and would also erase any administrative, civil or criminal liability for any of the actors involved.”

That the file is with the OPP might make that seem a bit more tangible.

Remember: By no serious standard of legislating should these provisions have been included in a budget bill in the first place. Whether or not Parliament should retroactively rewrite the law, that question should at least be asked with a distinct piece of legislation. In a better situation, a decisive number of MPs would refuse to pass a budget bill such as C-59. (And, in a future situation, we should demand that the omnibus bills of this sort are banned under the standing orders of Parliament.)

Failing that, MPs should at least summon the necessary self-respect, and respect for the institution, to demand a full airing of the situation. If Parliament is to pass these amendments, it should at least be clear to everyone what, exactly, that means.

Even still, how could Parliament justify passing a bill that would stymie a possible police investigation?

The will of Parliament when this access-to-information request was made seems to have been that that request was lawful. And that seems to have remained the will of Parliament, even when the Ending the Long-gun Registry Act was passed; that bill makes no mention of the Access to Information Act.

Whatever happened here and for whatever reason, we surely deserve to have it fully explained.

To retroactively reimagine the will of Parliament is already highly dubious. For Parliament to do so amid all of this would be much more. And all of it should be weighing on the institution and its members.

Update. Liberal MP Wayne Easter has also submitted a motion to the ethics committee for hearings on the issue. Here is the text of that motion:

That the Committee urgently invite Suzanne Legault, Information Commissioner of Canada, Bob Paulson, Commissioner of the Royal Canadian Mounted Police, and the Honourable Steven Blaney, Minister of Public Safety and Emergency Preparedness, to discuss the Special Report to Parliament by the Information Commissioner, tabled in Parliament on May 14, 2015, entitled An Investigation into an access to information request for the Long-gun Registry, and that the meeting be televised.

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