- Member of Parliament
- Member of the Board of Internal Economy
House leader of the official opposition
- Conservative
- Regina—Qu'Appelle
- Saskatchewan
- Voting Attendance: 64%
- Expenses Last Quarter: $172,932.98
- Government Page
Madam Speaker, I rise on a point of order pursuant to Standing Order 69.1, to ask that you treat Bill C-59, an act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023, as an omnibus bill, and divide it for voting purposes at the second and third reading stages.
This argument is, of course, without prejudice to the arguments which were made last week by me in respect of the rule against anticipation and Ways and Means Motion No. 19, which preceded the introduction of Bill C-59, for which the House is still awaiting a ruling from the Speaker.
Section (1) of Standing Order 69.1 provides that “In the case where a government bill seeks to repeal, amend or enact more than one act, and where there is not a common element connecting the various provisions or where unrelated matters are linked, the Speaker shall have the power to divide the questions, for the purposes of voting". Section (2) of the same standing order makes an exception for budget implementation bills, stating, “if the bill has as its main purpose the implementation of a budget and contains only provisions that were announced in the budget presentation”.
As Speaker Regan ruled on November 8, 2017, at page 15143 of the Debates, where a budget bill contains measures which were not part of the budget, this budget bill exemption applies only to those elements which were in the budget itself. The non-budget elements can be divided under the provisions of Standing Order 69.1(1).
In the case of Bill C-59, calling it a budget implementation bill would be exceedingly generous. While reference to the March budget can be found in the long title, the short title ignores this, calling the bill the “fall economic statement implementation act, 2023”. Not even the government House leader, the manager of the government's parliamentary program, used it as a budget implementation bill, judging by her remarks in the last two weekly business statements. On November 23, she told the House, “it is the intention of the government to commence debate next week concerning the bill relating to the fall economic statement”. This past Thursday, she said that priority will be given to the second reading of Bill C-59, an act to implement certain provisions of the fall economic statement. Therefore, I would argue that the evident treatment given to Bill C-59 by its own proponents, would mean that its main purpose is, indeed, not the implementation of a budget. Accordingly, it would follow that the exemption found in Standing Order 69.1(2) cannot apply here.
I would further argue that Speaker Regan's November 2017 ruling can be distinguished from the facts at hand today, namely that he dealt with a budget bill with a few extra add-ons. Here, we have a bill that is not even being treated, in the main, as a budget implementation bill and that, therefore, cannot even benefit from a partial exemption, since the main purpose of Bill C-59 is not to implement a budget.
Having addressed that matter, I now wish to turn to the matter of treating the bill as an omnibus one, “where there is not a common element connecting the various provisions or where unrelated matters are linked”. In my respectful view, the fact that a series of measures may have been previewed in a fall economic statement does not amount to a so-called common element. Given that fall economic statements are often popularly dubbed “mini-budgets” and that the House itself recognizes that budgets often string together otherwise unrelated things by creating the budget implementation bill exemption in Standing Order 69.1, it is my submission that the mere inclusion of an item in a fall economic statement cannot be sufficient to overcome the treatment required for an omnibus bill.
Even if the Chair might be persuaded that all of the measures are, in one form or another, a matter of broad economic policy, I would refer you to Speaker Regan's March 1, 2018, ruling at page 17551 of the Debates:
In presenting arguments relating to Bill C-63, the hon. member for Calgary Shepard raised an interesting concept from the practice in the Quebec National Assembly. Quoting from page 400 of Parliamentary Procedure in Québec, he stated:
“The principle or principles contained in a bill must not be confused with the field it concerns. To frame the concept of principle in that way would prevent the division of most bills, because they apply to a specific field.”
While their procedure for dividing bills is quite different from ours, the idea of distinguishing the principles of a bill from its field has stayed with me. While each bill is different and so too each case, I believe that Standing Order 69.1 can indeed be applied to a bill where all of the initiatives relate to a specific policy area, if those initiatives are sufficiently distinct to warrant a separate decision of the House.
In this particular instance, I have no trouble agreeing that all of the measures contained in Bill C-69 relate to environmental protection. However, I believe there are distinct initiatives that are sufficiently unrelated that they warrant multiple votes.
Deputy Speaker Bruce Stanton dealt with another similar situation when he ruled on June 18, 2018, at page 21163 of the Debates, in respect of a former Bill C-59, stating it:
...does clearly contain several different initiatives. It establishes new agencies and mechanisms for oversight of national security agencies and deals with information collection and sharing as well as criminal offences relating to terrorism. That said, one could argue, as the parliamentary secretary did, that since these are all matters related to national security, there is, indeed, a common thread between them. However, the question the Chair must ask itself is whether these specific measures should be subjected to separate votes.
He goes on to state, “In this particular case, while the Chair has no trouble agreeing that all of the measures contained in Bill C-59 relate to national security, it is the Chair's view that there are distinct initiatives that are sufficiently unrelated as to warrant dividing the question.”
Therefore, I would suggest that today's bill, Bill C-59, should also be divided for voting purposes at second reading and, if necessary, at third reading.
After a brief review and analysis of the bill's contents, it seems that it could actually be divided into several groupings: clauses 1 to 95, proposing amendments to the Income Tax Act and consequential amendments to other enactments, as well as the bill's short title; clauses 96 to 128, proposing the creation of a digital services tax; clauses 129 to 136, 138 to 143 and 145 to 167, proposing amendments concerning the excise tax, other than the exemption of GST for mental health services, which is also contained in Bill C-323, a matter to which I will return later; clauses 168 to 196, proposing amendments to the laws governing financial institutions; clauses 197 to 208, proposing to create a leave entitlement related to pregnancy loss and to amend the law concerning bereavement leave; clauses 209 to 216, proposing the creation of a Canada water agency; clauses 217 and 218, proposing amendments to the Tobacco and Vaping Products Act; clauses 219 to 230, proposing amendments to the Canadian Payments Act; clauses 231 to 272 proposing various amendments to competition law; clauses 273 to 277, proposing amendments exempting post-secondary schools from the laws concerning bankruptcy and insolvency; clauses 278 to 317, proposing various legislative amendments concerning money laundering, terrorist financing and sanctions evasions; clauses 318 and 319, concerning the information which is published by the government respecting certain transfer payments to the provinces; clauses 320 to 322, proposing amendments concerning the Public Sector Pension Investment Board; and clauses 323 to 341, proposing the creation of a department of housing, infrastructure and communities.
Additionally, I would propose that clauses 137 and 144, concerning the exemption of GST for mental health services, mirroring the provisions of Bill C-323, as well as clauses 342 to 365, creating employment insurance and job protection benefits for adoptive and surrogate parents, replicating the substance of Bill C-318, should also be separated out from Bill C-59. However, in this instance, I would suggest that, instead of a separate vote, these provisions would simply not proceed further given that the House has already taken a decision on the principle of those matters when it adopted the common-sense Conservative private members' bills at second reading.
Approaching it in this fashion might be an elegant solution to squaring the circle in the ruling that remains pending on Ways and Means Motion No. 19.
In short, Bill C-59, the fall economic statement implementation bill, is an omnibus bill under Standing Order 69.1. It qualifies in no way for the budget bill exemption in that rule. It can and should be divided into separate votes, about 14 or so based on the thematic groupings of the bill's clauses. It would, if so divided, offer an elegant solution for a pending Speaker's ruling to reconcile the long-standing rules and precedents of the House respecting multiple decisions on the same question that, for reasons we are awaiting, did not apply to Ways and Means Motion No. 19 and that saw the House vote, yet again, on the principles found in two Conservative private members' bills that had already been adopted at second reading.
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Madam Speaker, I am rising on a point of order challenging the admissibility of Ways and Means Motion No. 19 concerning the fall economic statement implementation bill, which was tabled earlier today by the Deputy Prime Minister. It is my submission that the motion offends the rule against anticipation, sometimes also known as the “same question rule”. That rule is described on page 568 of House of Commons Procedure and Practice, which reads as follows:
The rule is dependent on the principle which forbids the same question from being decided twice within the same session. It does not apply, however, to similar or identical motions or bills which appear on the Notice Paper prior to debate. The rule of anticipation becomes operative only when one of two similar motions on the Order Paper is actually proceeded with. For example, two bills similar in substance will be allowed to stand on the Order Paper but only one may be moved and disposed of. If a decision is taken on the first bill (for example, to defeat the bill or advance it through a stage in the legislative process), then the other may not be proceeded with...If the first bill is withdrawn (by unanimous consent, often after debate has started), then the second may be proceeded with.
The rule against anticipation has been building a significant number of precedents in the past few years in light of the NDP-Liberal government's growing pattern of stealing common-sense Conservative private members' bills to add to their own legislative agenda. While our authorities suggest that such points of order should be raised only when the second question is actually proposed from the Chair, I recognize that in light of Ways and Means Motion No. 19 being an omnibus proposal, exceeding 500 pages in length, you, Madam Speaker, might appreciate having the evening to reflect on the issues I am about to discuss before the government intends to call it for consideration tomorrow.
In the present case, Ways and Means Motion No. 19 includes provisions that the House has already adopted in principle at second reading through two private members' bills.
On September 20, the House passed second reading Bill C-318, an act to amend the Employment Insurance Act and the Canada Labour Code, sponsored by the Conservative hon. member for Battlefords—Lloydminster. The summary printed on the inside cover of the bill reads:
This enactment amends the Employment Insurance Act to introduce a new type of special benefits: an attachment benefit of 15 weeks for adoptive parents and parents of children conceived through surrogacy. It also amends the Canada Labour Code to extend parental leave accordingly.
Last week's fall economic statement on pages 43 and 42 states that:
The 2023 Fall Economic Statement proposes to introduce a new 15-week shareable EI adoption...Surrogate parents will also be eligible for this benefit.
The 2023 Fall Economic Statement also proposes to make amendments to the Employment Insurance Act, as well as corresponding changes to the Canada Labour Code, to ensure that workers in federally regulated industries have the job protection they need while receiving the EI adoption benefit.
Those provisions appear as clauses 342 to 365 of Ways and Means Motion No. 19. While the legislative language used varies, the ultimate policy objective and therefore the principle of the matter remains the same as a close examination of the two passages I quoted reveals.
The second private member's bill stolen by the government this week is Bill C-323, an act to amend the Excise Tax Act, mental health services, sponsored by the Conservative member for Cumberland—Colchester, which the House passed at second reading on September 27. My colleague's bill would amend sections 1 and 7 of part II of schedule V of the Excise Tax Act to exempt psychotherapy and mental health counselling from GST. Clause 137 of Ways and Means Motion No. 19 would do the exact same thing, except that the government refers to “counselling therapy” instead of Bill C-323's “mental health counselling”. That is, I would submit, a distinction without a difference.
Indeed, I would draw the Chair's attention to clause 144 of Ways and Means Motion No. 19 that makes coordinating provisions if each is enacted, which demonstrates the government also sees these as identical measures, but what is especially galling is subclause 144(5), “For greater certainty, if this Act receives royal asset then the other Act [Bill C-323] is deemed never to have produced its effects.” The government would prefer to toss my colleague's important bill down the memory hole. That is just shameful.
Your predecessor, on February 18, 2021, at page 4256 of the Debates, ruled that government Bill C-13 could not be proceeded with further following the House's adoption of Bill C-218, citing the rule against anticipation. In so ruling, the Chair said:
The House is now placed in an unusual situation where a decision was made on one of two very similar bills standing on the Order Paper.
The Chair recognizes that both bills are not identical; they are, however, substantially similar as they both amend the exact same provision of the Criminal Code for similar purposes....
Consequently, as long as Bill C-218 follows its course through the legislative process during this session, Bill C-13 may not be proceeded with.
As for the technical differences between those two bills, the Speaker offered a common-sense solution to reconcile them: “the Chair notes that other avenues would be open to the House to achieve those same ends, such as through amendments proposed to Bill C-218 during the committee's study.”
I would respectfully submit that if the government has any concerns about the drafting of Bill C-318 or Bill C-323, the solution is to bring amendments to committee, not to bigfoot them by throwing them into an omnibus budget bill, but that is exactly what happened here. It is what happened last year when Bill C-250, sponsored by the hon. member for Saskatoon—Grasswood, was scooped up by the government and placed in Bill C-19, a budget implementation bill.
In a May 11, 2022, ruling at page 5123 of the Debates, the Deputy Speaker held:
Bill C-19 was adopted at second reading and referred to the Standing Committee on Finance yesterday. The House is now placed in a situation where a decision was made on one of the two bills that contain very similar provisions....
The Chair recognizes that these bills are not identical, as Bill C-19 is much broader in scope and contains other provisions related to the implementation of the budget.
However, in adopting Bill C-19 at second reading, the House has also agreed to the principle of that bill, and consequently, has agreed, among other things, to amend section 319 of the Criminal Code dealing with hate propaganda. As I explained a few moments ago, these are provisions substantially similar to the ones contained in Bill C-250.
Therefore, the question for the Chair is, should Bill C-250 be allowed to proceed further in the legislative process at this time? In the Chair's opinion, it should not be allowed. The House should not face a situation where the same question can be cited twice within the same session, unless the House's intention is to rescind or revoke the decision.
In the case of Bill C-250, the Deputy Speaker directed that it be held as pending business until the final fate of Bill C-19 could be determined. On September 20, 2022, your predecessor ordered Bill C-250 to be discharged and dropped from the Order Paper, given that Bill C-19 had by then received royal assent. A similar pair of rulings occurred on June 6, 2022, and May 11, 2023, in respect of Bill C-243 in light of its overlap with Senate Bill S-211.
While these rulings are all quite recent, they were not novel. Speaker Michener, on March 13, 1959, at page 238 of the Journals, reached the same conclusion for managing this sort of legislative traffic jam:
Thus I have come to the conclusion that this bill must stand, as well as the other bill in the same terms, or at least in terms for exactly the same purpose, until the bill which was first moved has been disposed of either by being withdrawn, which would open the door for one of these other bills to proceed, or by way of being approved, which would automatically dispose of these bills because the House would not vote twice on the same subject matter any more than it would debate the same subject matter twice.
Standing Order 94(1) empowers and directs the Speaker to, “make all arrangements necessary to ensure the orderly conduct of Private Members’ Business”. That standing order, I would submit, behooves you to safeguard the process of Private Members' Business as much as possible by drawing a firm and bright line for the government to stop poaching common-sense Conservative bills and claiming them as their own.
One final consideration I want to place before the Chair is one that did not arise in the context of the pairs of bills and the precedents I have cited. We are dealing here with a ways and means motion, not a bill. Bosc and Gagnon, at page 568, explain the relevance of this distinction in the role against anticipation:
According to this rule, which applied to other proceedings as well as to motions, a motion could not anticipate a matter which was standing on the Order Paper for further discussion, whether as a bill or a motion, and which was contained in a more effective form of proceeding.
The associated footnote points readers to other authorities for a fuller explanation, such as the U.K.'s Erskine May. That book's 25th edition, at paragraph 20.13, explains:
...a matter must not be anticipated if contained in a more effective form of proceeding than the proceeding by which it was sought to be anticipated, but it might be anticipated if contained in an equally or less effective form. A bill or other order of the day is more effective than a motion....
This principle was explained matter-of-factly by Speaker Casgrain on February 24, 1936, at page 68 of the Journals: “A Bill has the right-of-way and cannot be sidetracked by a Motion.”
In the circumstances, if the precedents and procedural authorities of this House are to be applied consistently, Ways and Means Motion No. 19 must be put into abeyance pending the outcome of Bill C-318 and Bill C-323. I would urge you, Madam Speaker, to so rule.
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