37th Parliament, 2nd Session
(September 30, 2002 -     )

[Parliamentary Coat-of-Arms]

Edited Hansard • Number 093

Thursday, May 1, 2003

[Hansard – Pages 5717-5719]

Privilege

Firearms Act

    Mr. Garry Breitkreuz (Yorkton—Melville, Canadian Alliance): Mr. Speaker, I am rising on a question of privilege. I have been waiting since April 14 for the House to reconvene so I could raise this important question of privilege. I just returned to Ottawa with committee duties that I was engaged in and this is the first opportunity I have to bring this matter to the attention of the House.

    Section 2 of the Firearms Act defines “Federal Minister” as the Minister of Justice. In 1995 members of the House voted five times on Bill C-68. It was Parliament's clearly stated intent that the Firearms Act be administered by the minister of justice, not the solicitor general.

    Imagine my shock on April 14 of this year when the Minister of Justice and the Solicitor General issued a news release saying that the federal minister responsible for the Firearms Act would no longer be the Minister of Justice but that it would now be the Solicitor General of Canada. If true, they amended an act of Parliament without coming back to Parliament to ask for our approval of the amendment. How could they possibly have such contempt for Parliament? Even the fact that the Prime Minister's Office waited until the House of Commons was just starting its two week Easter recess to make this change was insulting. Did they really think we would forget about it over the two week break?

    I asked the lawyers in the Library of Parliament, parliamentary research branch, this question. How did they transfer the firearms program without getting it approved by the House of Commons? The law and government division responded as follows:

 

    Further to your e-mail dated 15th of April, 2003, the transfer of responsibility of the Canadian Firearms Centre was accomplished by means of an Order in Council. This O-I-C was enacted pursuant to the Public Service Rearrangement and Transfer of Duties Act. The transfer took effect on the 14 April, 2003.

    The research branch provided a link to the specific order in council posted on the Privy Council Office website. The order in council registration number SI/2003-96, dated Friday, April 11, 2003, states:

 

    Her Excellency the Governor General in Council, on the recommendation of the Prime Minister, pursuant to paragraph 2(a) of the Public Service Rearrangement and Transfer of Duties Act, hereby:

 

 

(a) transfers from the Minister of Justice to the Solicitor General of Canada the control and supervision of the portion of the public service known as the Canadian Firearms Centre over which the Solicitor General of Canada shall preside, and

 

 

(b) transfers from the Minister of Justice, who is defined as the federal minister in the Firearms Act, to the Solicitor General of Canada the powers, duties and functions of the federal minister under the Firearms Act.

 

 

effective April 14, 2003.

    We did get some advance warning that the PMO might try to use, or one might say abuse, the Public Service Rearrangement and Transfer of Duties Act to make this amendment to the Firearms Act without giving MPs a chance to debate and vote on the amendment.

    On the day the justice minister announced his action plan for the firearms program, justice department bureaucrats were overheard saying that they did not have to come back to Parliament to change the definition of federal minister.

    Based on this obvious disrespect for what is clearly stated in an act of Parliament, I asked the parliamentary research branch again to investigate how it would be possible for the government to use a subordinate act of Parliament, originally passed in 1918, to override a specific section of the Firearms Act passed after nine separate votes of Parliament in 1995.

    On March 14, 2003, the law and government division of the parliamentary research branch wrote the following answer:

 

    It is unclear if the statute of general application can be used to re-define the Minister responsible in statutes of specific application such as the Royal Canadian Mint Act. The issue becomes more acute when the statute as set out in Justice Canada's website defines the Minister as one person but, in reality, that Minister is someone else entirely.

    A subsequent paper, written by the law and government division of the parliamentary research branch, dated March 20, 2003 states:

 

    Ministers in Canada have most of their responsibilities assigned by statute. Despite the broad language and the PSRTDA [Public Service Rearrangement and Transfer of Duties Act], any transfer of responsibilities made by the PSRTDA remains a subordinate legislation.This may explain why the PSRTDA was given a fairly restricted interpretation, at least until the major reorganizations of federal departments in 1993. It is presumed that regulatory provisions, such as Orders in Council under the PSRTDA, are meant to work together, not only with their own enabling legislation, but also with other Acts and other regulations as well. In so far as possible, the courts seek to avoid conflict between statutory and regulatory provisions and to give effect to both...

 

 

     On the one hand, any argument limiting the [Where conflict is unavoidable, however, the statute provision prevails], scope of a PSRTDA order based on the superior nature of the statute conferring the power in question could, potentially, eviscerate the PSRTDA and the ambit of its operation. On the other hand, to go to the other extreme by completely emasculate the supremacy of Parliament to legislate who has responsibility of administering its enactments.

    The latter interpretation is the position I take in this question of privilege and the one the Speaker must resolve before allowing this amendment to the Firearms Act to take place without any debate or a vote by members of the House.

    When the courts are confused by the wording of legislation, they often go back to the debates of the legislation to determine what the original intent of the legislation was. Even a cursory review of the debates of Bill C-68 will show that both the government and Parliament clearly intended that the federal minister in the Firearms Act would be the Minister of Justice and no one else.

    I cannot find one reference in any of the debates or the testimony before the Standing Committee on Justice that suggested that any minister other than the Minister of Justice would be or should be responsible for the Firearms Act.

    The House of Commons voted on Bill C-68, An Act respecting firearms and other weapons, on five occasions: second reading, report stage, third reading and two time allocation motions.

    On June 7, 1995, the Standing Committee on Justice and Legal Affairs reported Bill C-68 back to the House with amendments, but the definition of federal minister was not one of the amendments proposed. The Senate also held extensive committee hearings, reported the bill back with 14 amendments and had four votes on Bill C-68. No one ever disputed or debated the question of who the federal minister should be, and on December 5, 1995, Bill C-68 was proclaimed into law. After months of debate, extensive committee hearings in both the House and Senate and nine parliamentary votes, the clear intent of Parliament was that the federal minister would be the Minister of Justice.

    It is my position that a subordinate act of Parliament should not be used to subvert the clear intent of Parliament in a statute of specific application and if the government has valid reasons for wanting to transfer responsibility for the Firearms Act to the Solicitor General, then it should bring such an amendment before the House for full debate and a vote.

    The powers of the federal minister are extensive and are described in Firearms Act sections 2, 7, 82, 95, 97, 118 and 119 and the Criminal Code sections 103 and 104. The federal minister's powers include: prosecuting Criminal Code offences for the illegal import or export of firearms or ammunition; laying regulations before each House of Parliament; entering into federal-provincial compensation agreements; approving firearms safety courses; prescribing forms and designating chief firearms officers and firearms officers for provinces and territories.

    These are important legal responsibilities approved by Parliament and the decision concerning which minister will carry out these duties in the future should have been debated in the House before being amended. Under section 118 of the Firearms Act, regulations are to be laid before each House of Parliament. How can the government propose such a major amendment to the Firearms Act, the definition of the federal minister responsible, without extending the same courtesy to Parliament?

    My privileges have been breached and the government has shown contempt for the House by trying to amend the Firearms Act through the back door by order in council.

    Clearly, it was Parliament's intent that the Firearms Act be administered by the Minister of Justice, not the Solicitor General. The Minister of Justice has discharged these responsibilities under the Firearms Act for more than seven years. Why is it necessary to change ministerial responsibility now after so many years? What can the Solicitor General do better than the three justice ministers have done? Clearly, these are questions requiring full debate in the House of Commons.

    Why is the government amending an act of Parliament without giving Parliament the opportunity to debate and vote for or against the amendment? Why does the government have such contempt for what is clearly stated in an act of Parliament passed by the House? The lawyers in the Library of Parliament stated:

 

    It is unclear if this statute of general application can be used to re-define the Minister responsible in statutes of specific application...

    I ask the Speaker to clarify this important issue for Parliament.

    In the House of Commons Debates for April 29, 1971, Speaker Lamoureux stated:

 

    In my view, parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a member to discharge his or her duties in the House as a member of the House of Commons.

    One of the most important duties is to represent my constituents in the House and to vote on their behalf. The government's actions have prevented me from debating and voting on an important amendment to a bill that is very important to them. The government's actions have directly impeded my work as a member of Parliament.

    Joseph Maingot's “Parliamentary Privilege in Canada”, second edition provides “A practical definition” of parliamentary privilege on page 13, which states:

 

    If someone improperly interferes with the parliamentary work of a Member of Parliament--i.e. any of the Member's activities that have a connection with the proceeding in Parliament--in such a case that is a matter involving parliamentary privilege. An offence against the authority of the House constitutes contempt.

    I believe the Prime Minister's order in council registration number SI/2003-0096 dated Friday, April 11, 2003 has improperly interfered with my parliamentary work as a member of Parliament and has also undermined the authority of the House.

    I believe changing the definition of federal minister in the Firearms Act from the Minister of Justice to the Solicitor General by order in council using the Public Service Rearrangement and Transfer of Duties Act rather than bringing the proper amendment before the House undermines the supremacy of Parliament and constitutes a prima facie breach of privilege. Mr. Speaker, if you agree, I am prepared to move the appropriate motion and appreciate your attention to this matter.

    Mr. Geoff Regan (Parliamentary Secretary to the Leader of the Government in the House of Commons, Lib.): Mr. Speaker, I appreciate the opportunity to respond to this question of privilege that has been raised. It is certainly a creative attempt on behalf of my hon. colleague.

    First, we know that there has certainly been considerable discussion in the House about the change of duties from one minister to another in relation to the Firearms Act and responsibility for it. We also know that the Public Service Rearrangement and Transfer of Duties Act does provide in fact that such a transfer can be made by order in council. It is provided for in law. The House has considered the Public Service Rearrangement and Transfer of Duties Act obviously. It has passed that act and given that power to the governor in council to make those changes. Therefore, it is clearly not a question of contempt.

    Nevertheless, as usual, the government has had no notice of this question of privilege and I would like to reserve the opportunity to come back at a later time to make further submissions, if need be.

    The Speaker: The Chair will take the matter under advisement and provide time for the hon. parliamentary secretary to make further submissions on the point.