Critics of a controversial bill requiring unions to disclose in-depth financial details are calling on its supporters to produce a constitutional expert to testify the bill can pass legal muster — because they don’t believe that one exists.
As Bill C-377 enters its second week of Senate committee hearings, several constitutional scholars are speaking out against the Conservative private member’s bill that would force labour organizations to disclose to the Canada Revenue Agency how they spend the dues they collect.
Such experts — including the Canadian Bar Association and law professors who testified at last week’s Senate hearings — say it violates Charter guarantees to privacy and freedom of association, and encroaches on provincial jurisdiction.
The federal bill would amend the Income Tax Act to require unions to provide detailed annual financial reports to the CRA, which would make the information public.
So far it has been difficult to find an expert to publicly support the constitutionality of the bill, which is expected to be passed by the Tory-dominated Senate in the next few months.
Labour groups have ramped up a lobbying campaign against the bill since it passed in the House in December. They have said repeatedly they will issue a legal challenge to the bill, which could cost Canadians tens of millions of dollars for the government to fight. Legal experts believe those groups have a viable case.
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Liberal Senator Pierrette Ringuette, who sits on the committee, said Monday she is seeking “experts to come out and say why it is constitutional because so far I haven't seen any constitutional expert come out and say this bill is constitutional.”
The bill was drafted by lawyers from the House of Commons and one of those experts testified before a private member’s business sub-committee that the bill “met all tests including constitutionality,” the bill’s creator, MP Russ Hiebert, said in an email to Huffington Post Canada.
Hiebert has said the bill was brought “to a variety of constitutional experts in Canada ... and they assured us the way its drafted would sustain any constitutional challenge.”
But when asked at a press conference in December to name some of the experts, he replied: “I don’t have their consent to disclose their names.”
That piqued Ringuette’s skepticism. She said she has asked Hiebert in the Senate meetings to table any expert opinions he has received in writing, but he responded that he did not have those documents to table.
“That tells me this is purely a political bill in the first place, and in the second place there is no doubt in my mind that if the Tory majority in the Senate pass this bill that it’s going to cost hundreds of millions of dollars to the taxpayer and it’s going to end up before the Supreme Court of Canada,” she said.
Hiebert noted that former Liberal leader Stephane Dion and expert witness Gilles Trudeau have conceded the bill is not clearly anti-constitutional.
As for the opinion from the Canadian Bar Association that it is unconstitutional, Hiebert said “they make this claim about many bills they don’t like.”
“I fully understand the desire of Senators to pass legislation that will avoid a constitutional challenge, but let’s be clear that even if every expert agrees the bill is constitutional, certain labour leaders have been clear they will still fight the bill in the courts, regardless,” he said.
The CRA has estimated the cost of implementing the bill at $10.6 million over the first two years, followed by an annual cost of $2.1 million.
Ringuette said those costs could prove to be wasteful if the bill is implemented only to be thrown out years later as unconstitutional.
Bruce Ryder, professor at Osgoode Hall Law School and one of the experts who testified Friday, said he cannot see the bill surviving in its current form, adding he is just one of many legal experts who believe it will be struck down by the courts.
It is rare for a bill to have no constitutional experts vouching for a bill’s legal viability, he said.
When such an attack is mounted against the constitutionality of a bill from a number of credible sources, he believes the government has three options: answer with equally credible sources supporting the bill, withdraw the bill to make changes to bring it within legal scope, or refer the bill before passed to the Supreme Court to settle the question.
“We shouldn’t just leave it to the courts to uphold the Constitution. Parliament should be seeking to act within its constitutional powers too.”
Ryder questions how much scrutiny the proposed legislation received, as private members’ bills — unlike bills introduced by ministers — do not have a legal requirement to be vetted by the Department of Justice to ensure they are constitutionally sound.
“Moreover, private members' bills can be drafted by an individual MP's office with little legal guidance. Government bills are more likely to be the product of many expert legal drafters,” Ryder said.
Ken Georgetti, president of the Canadian Labour Congress, asked, “How can the Senate consider a bill that can’t get a validation from anyone of credibility?”
He said taxpayers should be concerned about the onerous cost estimates the CRA has estimated for implementing the bill.
Processing each report from a union could cost the CRA $2,000, and the pricetag to keep tabs on the 25,000 organizations under the CLC alone could run taxpayers $50 million, he said.
“It’s a solution searching for a problem. We don’t need this kind of bureaucracy, it’s exactly what the Tories are supposed to be opposed to,” Georgetti told The Huffington Post Canada.
He said if the bill is signed into law, the CLC will issue legal challenges on grounds it infringes on the right to freedom of association, oversteps federal jurisdiction and violates privacy rights.
The committee will hear from the Privacy Commissioner of Canada as well as a number of labour and industry groups. The hearings are expected to wrap up in early June and report its findings to the Senate. It can recommend the bill be accepted as written, accepted with amendments, or rejected.