06/20/2012 07:48 EDT | Updated 08/20/2012 05:12 EDT

Nine (More) Reasons to Be Concerned About Bill C-38

Bill C-38 as a whole was introduced and steamrolled through parliament in a way that undermines our parliamentary democracy. Not only does it stand in contempt of parliament, it denies the public the right to information. I will now address nine primary areas of procedural, process, and constitutional concern in regard to C-38 -- though there are many more.


The hydra-headed Trojan horse omnibus budget implementation bill -- C-38 -- is as stealth-like in its scope as it is prejudicial in its impact, the whole constituting an assault on the integrity of Parliament and its members, as well as on the democratic process.

In this, the second of two pieces on C-38, I will highlight both the preemptory procedure by which C-38 has been pushed through Parliament, as well as the standing breaches of constitutional convention, the whole amounting to contempt not only for the institution and its members, but for the Canadian people as well.

Indeed, this legislation is the most recent manifestation of what Richard Poplak in the Globe and Mail termed "Chinese disease" -- the "hallowing out democracy" -- and Canadians are increasingly bearing the burden of this onslaught.

Apart from the prejudicial substantive changes I outlined in the first piece, the bill as a whole was introduced and steamrolled through Parliament in a way that undermines our parliamentary democracy. Moreover, it is a standing contempt of Parliament in its non-disclosure of costs, depriving Parliamentarians of their right and responsibility, to scrutinize and oversee the public purse, while also denying the public their right to know.

Further, even respected conservative commentators have called the government to task in regard to C-38. In the words of Andrew Coyne, "[T]his is not remotely a budget bill, despite its name... If you want to know how far Parliament has fallen, how little real oversight it now exercises over government, this should give you a clue."

I will now address nine primary areas of procedural, process, and constitutional concern in regard to C-38 -- though there are many more.

First, is the omnibus nature of the bill itself. With the bundling together of these disparate statutes and subject matters, this 750-clause legislative monstrosity is being rammed through Parliament in a way that prevents the differentiated study and scrutiny necessary in a parliamentary democracy from occurring.

Complaints about omnibus legislation are not new, but the primary problem is worth keeping in mind -- as expressed quite well in a 1994 Point of Order before the House:

"Mr. Speaker, I would argue that the subject matter of the bill is so diverse that a single vote on the content would put members in conflict with their own principles... There is a lack of relevancy of these issues... How can members represent their constituents on these various areas when they are forced to vote in a block on such legislation and on such concerns?"

The same intervention continued,

"Dividing the bill into several components would allow members to represent views of their constituents on each of the different components in the bill... The bill contains many distinct proposals and principles and asking members to provide simple answers to such complex questions is in contradiction to the conventions and practices of the House."

Indeed, those concerns -- as stated then by Reform MP Stephen Harper, now the Prime Minister -- remain the concern of the Opposition today.

Second, and relatedly, because the bill was introduced as an omnibus, it was studied in one Standing committee: the Committee on Finance. The purpose of the committee system is to allow for witness testimony to be heard and expertise to be developed by the Members of the Committee in relation to the committee's subject matter.

By having only the Finance Committee study the bill, the detailed and necessary study, scrutiny and oversight that would be provided by say, the Justice Committee looking at the parole board changes, or the Environment Committee looking at the overhaul of the Kyoto Protocol Implementation Act, are circumvented in their entirety. The raison d'être of subject-matter committees is to have them review items within their scope -- it is an affront to legislate around such committees through an omnibus.

Third is the issue of cost disclosure or, in this case, non-disclosure. The Parliamentary Budget Officer has stated that he has not received the information he needs to analyze C-38 fully. Simply put, how can parliamentarians exercise their power over the public purse and provide effective oversight if they do not have the facts and figures they need? How is the public to be informed if they are not provided the information they require? Indeed, the PBO just sent a letter to the Clerk of the Privy Council stating,

"It is in the interest of Parliament and the Canadian public that such information be made available immediately... it is only with such information that Parliament can exercise its constitutional role of controlling public finances."

Fourth is the issue of parliamentary oversight mechanisms. Bill C-38, in various sections, eliminates the role of the Inspector General at CSIS and his superintending oversight of the organization, while reducing the Auditor General's ability to examine practices at multiple agencies including the Canada Food Inspection Agency and the Northern Pipeline Agency. Moreover, the omnibus guts evidence-based input mechanisms such as the National Council on Welfare -- which provides the government with the evidence it needs to combat poverty at a time when growing income inequality is one of the biggest challenges facing Canada -- as well as the National Roundtable on the Environment and the Economy.

Evidenced-based research organizations and parliamentary officers perform a vital service by informing both Parliament and the public. Without them, it is hard for either parliamentarians to exercise the necessary oversight, and for the public to have the necessary information. Indeed, the public is marginalized further by some of these changes, such as the gutting of the well-respected National Energy Board. In this regards, C-38 transfers power for final approval of pipeline projects by setting arbitrary review timelines that may prevent important stakeholders and local citizens from participating in the process.

Fifth, the bill is also an affront to any consultative, cooperative, and participatory federalism in its unilateralism. For example, without consulting any of the provinces, Stephen Harper has unilaterally redefined what constitutes "acceptable work," allowing the government to revoke the EI benefits for which workers have paid. For small communities that rely on seasonal work the consequences could be devastating.

Sixth, the legislation offloads costs and burdens on the provinces despite them not being consulted. For example the changes in C-38 cut Interim Federal Health Program services that provide temporary health care support to refugees who have fled to Canada to escape often violent persecution, and have no means of accessing services on their own. These cuts will download the cost of providing health care to provinces and territories. It will also lead to untreated health problems and an increase in the use of emergency services, which will drive up health care costs in the future.

Seventh, is the lack of Constitutional scrutiny exercised by the Minister of Justice who, per statute, has an obligation to inform the House when any provisions of Government legislation may be inconsistent with the Canadian Constitution. No report of a Constitutional conflict has yet been tabled, yet the Federal Court already ruled last week that the immigration changes in the bill may result in unfairness that is violative of due process rights. Elsewhere in the bill we see legal issues arising from changes to the parole process, and in competition law in relation to changes to foreign investment.

Eighth, the legislation imbues the executive with undue -- and arbitrary -- discretionary authority at the expense of parliamentary involvement and provincial consultation. This is evident in the provisions allowing for timelines with respect to pipelines and immigration applications, as well as changes to the pay equity requirements for federal contractors. Simply put, vesting such authority in Ministers and shielding them from public and parliamentary oversight erodes both the parliamentary and democratic process.

Ninth, and finally, is the issue of time allocation, where the Government has -- repeatedly -- forced limits on debate, thereby silencing Opposition voices while refusing to let debate run its natural course and potentially reach compromise. Time allocation on this bill has been invoked in the House, at Committee to the point where one might even get the sense that some in the government merely view Parliament as a speedbump in the way of their desired legislation. This problematic mindset has manifested itself throughout the C-38 deliberations thus far, as it did throughout Bill C-10, the omnibus crime bill.

Herein, I have summarized nine case studies of this stealth-like Trojan horse so as to emphasize that we are being asked to rubber-stamp the government's presumptive and prejudicial agenda without the necessary information as to costs and cuts, and in a manner that has precluded the necessary oversight and review by Parliament -- when it is clear that there are contradictions between what the government has affirmed and what the evidence and independent experts have asserted.

Moreover, through C-38, the Federal government is cutting review processes and expert-based inputs that help Parliament and the public, while also denying the PBO the information he -- and parliamentarians -- have requested, and require for the discharge their constitutional responsibilities.

Much was made of the Opposition's attempt to force a marathon vote on amendments to the bill; but, Andrew Coyne phrased it best in the title of a recent piece:

"The C-38 debate is a last-ditch effort to save democracy's soul". As he put it, "It should be noted it is not only the opposition's interests that are being defended here. It is Parliament's. Were MPs on the government side more mindful of their responsibilities they would be as vigilant in its defence as the opposition."

Thus while the bill itself is flawed in nearly every substantive particular, the process by which it has been pushed through -- and the conventions that it thereby undermines -- continues a standing assault on Parliament, a contempt for the institution, and indeed should be viewed as an affront to all Canadians.

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