Mark Adler, a Conservative MP assigned to the finance committee, seated here beneath an impressive chandelier and a grand portrait of the Fathers of Confederation in the Railway Room of Centre Block, attempted, with his opportunity, to engage the information commissioner in a discussion of basic concepts. Apparently, he saw some advantage for his side in getting the commissioner to agree that the sky is, in fact, blue. As if that much might justify everything under the sun.
Did she believe in the principle of the supremacy of Parliament? Suzanne Legault said she did. Does she acknowledge that laws can be enacted with retroactive effect? Legault agreed this was so.
“The principle of parliamentary supremacy is a longstanding one in Canada and in our parliamentary tradition, going back to Britain,” Adler explained. “All members of Parliament, all 308 of us, were elected by popular vote, and we were sent here to pass legislation on behalf of the Canadian people, and that’s exactly what we have done here.”
Sure. But what is going on here is rather more novel than simply that.
The government actually seeks currently to use a budget bill, C-59, to retroactively reimagine the law of the land and the will of Parliament. If passed, C-59 would exempt from the Access to Information Act all information related to the long-gun registry, retroactive to the date that the Ending the Long-gun Registry Act was tabled in the House of Commons in 2011.
All of which would be interesting enough to justify reflection, but this is more than an abstract experiment in creative drafting. More at issue is the fact that, in March 2012, before the Ending the Long-gun Registry Act was passed into law, an individual made a request of the RCMP through the access-to-information system for data from the registry. Even when passed, the Ending the Long-gun Registry Act did nothing to exempt the registry’s data from the access-to-information system. That individual subsequently complained that the RCMP did not fully comply with this request. After an investigation, the commissioner agreed with the complaint and has since filed an application with the Federal Court seeking redress. Furthermore, the commissioner wrote to the attorney general to raise the concern that documents related to the request had been unlawfully destroyed. That possibility is being investigated by the Ontario Provincial Police, the OPP confirming to me on Tuesday that the file forwarded to them by the public prosecution service is the subject of an active investigation.
It is the information commissioner’s view that the amendments contained in C-59—a budget implementation act, mind you—would nullify all of this: the request, the complaint, the application to the Federal Court and any possible investigation by the OPP, and that, if Parliament passes this bill as is, it will disappear all of that.
Ah, but what about that supremacy of Parliament? What of the collective will of our elected representatives? This is the principle in which the government has wrapped itself.
Legault neatly, but forcefully, stuck this in Adler’s ear.
“I agree that the will of Parliament is supreme. I really do,” she said. “The situation that I have before me is the following. I have the Ending the Long-gun Registry Act [ELRA], which has been in existence since April 2012. The ELRA never did oust the jurisdiction of the Access to Information Act . . . It is silent about the Access to Information Act, which is also a law of Parliament, which I am mandated to apply. I am mandated to receive and investigate complaints under the Access to Information Act. Government institutions are obligated to respect their obligations under the Access to Information Act. This is the will of Parliament today, and it was in April 2012 and, until it is changed, it is the will of Parliament.”
“Well, the will of Parliament is expressed by Parliament, correct?” Adler now wondered.
“In both the Access to Information Act and in the ELRA . . . I cannot speculate that the Parliament decided that the Access to Information Act was not to apply if it was not specifically mentioned,” Legault responded.
In other words, if it was the will of Parliament to void all access-to-information requests, then Parliament should have written the Ending the Long-gun Registry Act to do so. If it had done so, Parliament might have ensured that the complaint about compliance and the destruction of records never came to exist. But it didn’t. And now here we are. If it be the will of Parliament to reimagine the law of the land, it will apparently cancel a Federal Court case and an active police investigation in doing so.
The government says it is acting to close a “loophole.” But it would close this loophole after a lawful request allegedly failed to receive a full response, and after the unlawful destruction of data is alleged to have occurred.
“Mr. Chair, Division 18 of Bill C-59,” Legault said this morning of the amendments, “is not an attempt to close a loophole; but rather, it is an attempt to create a black hole.”
Even if we accept the loophole metaphor, it should be followed to its metaphorical conclusion: that the government wishes to close a loophole, but only after someone has stuck a finger through it, and after the government is alleged to have stepped on said finger. And so now, to close the loophole, the government is ready to sever the finger.
If not for the possibility that real laws have violated, it would be the stuff of absurdist satire.
At a few points during her prepared remarks, the commissioner laid out a challenge for the MPs around the table: “You must ask yourselves why?” But MPs seem rather unwilling to expend much energy exploring that question publicly. A motion moved yesterday by the NDP at the standing committee on access to information, privacy and ethics to call the commissioner, the justice minister, the public safety minister and the RCMP commissioner to testify—”I think it’s our duty to study this further,” ventured NDP MP Charmaine Borg—was defeated when the six Conservative members of the committee raised their hands to vote against it. A similar motion originating with the Liberals was defeated at the public safety committee.
Legault appeared at the finance committee at the same time as five other witnesses—representatives of university students, interns, employers and the music industry—to testify about entirely different parts of the budget bill, an hour and a half set aside to hear from and question six witnesses on three areas of law.
Had an NDP or a Liberal government attempted to do something similar, one imagines Conservative MPs would be profoundly saddened. In the current circumstance, the New Democrats and Liberals seem concerned, but not dramatically so; Thomas Mulcair quizzed the government about it last Tuesday, but, since then, the issue has gone unmentioned in question period. And the press gallery isn’t roiled. And the op-ed pages are not quite brimming with statements of concern from observers, so it seems unlikely that the sort of attention that might compel the government to back down will be mustered—because only widespread outrage seems capable of compelling substantial amendment.
Perhaps if this had nothing to do with the long-gun registry, the New Democrats and Liberals would be more eager to throw themselves at the issue. Perhaps if it could be verified that the access request in question was authored by one of those regular, everyday, hard-working, real, middle-class Canadians with a family, every MP here would be clamouring to defend him or her (or, at least, offer him or her a new “So You’ve Just Had Your Lawful Claim Trampled by Parliament” Tax Credit).
Instead, MPs would seem content to let this one go. A representative of the RCMP is scheduled to appear before the finance committee on Thursday, along with another slate of unrelated witnesses. The committee has given itself a whole hour to consider that testimony before it gets on with approving (or, by some remote chance, substantially amending) the budget bill.
Probably, MPs should decline to pass legislation that would affect a court proceeding or police investigation. Surely, at least, they should be very, very hesitant about doing anything that would have such an impact. By almost no mature standard of legislating should they be willing to authorize an action such as this via a vote on a budget implementation bill.
And while we’re talking about abstract principles, we might consider the notions of accountability and scrutiny, the primary values and purposes of the parliamentary system, and how even backbenchers on the government side, such as Adler, have a duty in this regard.
The supremacy of Parliament is a worthy idea. And the will of Parliament is a powerful expression. But it does not then follow that any expression is admirable in its formation or action.