Thank you very much, Mr. Chair. It's a great pleasure to be here, and I'm grateful to have my visit rescheduled so quickly after the tragic events of last week.

I hope I can share some useful thoughts about Bill C-518. I've prepared some speaking notes that I hope you have before you.

It's obviously a very straightforward and succinct bill. It aims to advance the objectives that underlie section 19 and section 39 of the Members of Parliament Retiring Allowances Act by filling a gap, really, or a loophole if you like, in the reach of the current provisions.

Those sections, as you know, now provide that a member of the Senate or House who is disqualified or expelled will receive a withdrawal allowance consisting of a return of contributions and interest, in lieu of a pension. However, if a member resigns—for example, to avoid impending disqualification or expulsion—he or she will continue to be entitled to receive a pension under the current state of the law.

To address this gap, Bill C-518 would add new subsections to the act, new subsections 19(2) and 39(2), that would extend the effect of the existing provisions to circumstances in which a member ceases to be a member in the following circumstances: If he or she has been convicted of an offence under any act of Parliament that was prosecuted by indictment and for which the maximum punishment is imprisonment for not less than two years, and if the offence arose out of conduct that in whole or in part occurred while the person was a member.

Then in its final provision, in clause 4 of the bill, it seeks to make clear that it applies to criminal conduct that occurred before the introduction of the bill.

I'm a constitutional lawyer and constitutional professor, and I thought it would be useful simply to share my view. I'm happy to elaborate on it if the committee's interested, but I don't see any issues regarding the constitutional validity of this bill. I don't see any provision of the Charter of Rights and Freedoms, or for that matter the Canadian Bill of Rights, that would be violated by Bill C-518.

I understand that some concerns have been raised about the consequences the bill would impose on behaviour that occurred before its introduction. However, it's open to Parliament to decide whether to impose consequences in this manner. Members of the committee may know that sections 11(g) and 11(i) of the Canadian Charter of Rights and Freedoms protect against the imposition of retroactive criminal liability--that is the creation of new offences that apply to behaviour that occurred before the coming into force of those offences, or the retroactive imposition of harsher sentences than existed at the time of the commission of an offence.

But as the Supreme Court of Canada has held, outside of the realm of criminal law, that is criminal liability, criminal sentencing, there is no requirement of legislative prospectivity embodied in the rule of law or in any provision of the Canadian Constitution. Indeed, when we step outside the criminal context, if we're in the civil context or the context of civil consequences, retroactive legislation is not unusual. Moreover, legislation imposing new civil consequences on criminal conduct that occurred in the past is not unusual either.

There is a presumption that statutes are intended to operate prospectively, and therefore not to alter rights or obligations as they existed before the date of the legislation coming into force. But this presumption can be displaced if Parliament makes its intent for legislation to operate retrospectively clear, as the final clause of this bill does.

In any case, if my understanding of the bill is correct, it doesn't seek to operate retroactively in a sense of taking away pension entitlements that have already vested. Rather, the bill imposes new consequences on members of the House or the Senate who cease to be members after the bill’s enactment. They will lose their pension entitlements if they committed and are convicted of a serious crime whether before or after the bill coming into force.

In my view, this intention would be more clearly expressed if clause 4 of the bill were to be replaced by the language that was used in a similar provision adopted by the Nova Scotia legislature last year. The Nova Scotia bill, known as Bill No. 80, provides that a member of the provincial legislature will receive a withdrawal allowance rather than a pension if convicted of a serious indictable offence while a member, and then it adds these words “regardless of whether the offence occurred before or after the coming into force of this subsection.”

In my view, this language could be usefully incorporated into the new subsections 19(2) and 39(2) proposed by Bill C-518, and clause 4 could then be deleted from the bill. This drafting change would have the advantage of making Parliament’s intention clearer within the Members of Parliament Retiring Allowances Act itself.

Finally, I hope the committee will welcome a few technical drafting suggestions regarding the specification of the kinds of criminal convictions that will be caught by the bill. The bill provides that it will apply where a member is prosecuted by indictment for an offence with a maximum punishment of at least two years for conduct that occurred while a member. I understand that Mr. Williamson has signalled his willingness to increase the threshold to five years, as is the case with the Nova Scotia legislation I mentioned earlier, and to add a qualification requiring the conduct that gave rise to the criminal charges and conviction to be connected to the fulfilment of the member's responsibilities as a member of the House or Senate. These strike me as changes that would improve the bill.

But I think it remains problematic to use the maximum penalty for an offence as the way of identifying the serious crimes targeted by the bill. This approach risks being over-inclusive. Let me just give an example. Consider the criminal negligence offence in the Criminal Code, which is in section 221—and we could pick many offences in the Criminal Code to make this point. This offence has a maximum sentence of 10 years. The offence of criminal negligence causing bodily harm has a maximum sentence of 10 years. It's an offence that can cover a wide range of criminal behaviour from the very serious that could lead to something close to or at the maximum sentence of 10 years or to the relatively minor forms of criminal negligence, or relatively modest if you like, that might attract a small or perhaps not even any prison sentence. In my view, it would be unjust to deprive a member of the House or the Senate of his or her pension automatically upon conviction of criminal negligence if we're dealing with criminal negligence that falls at the modest end of the spectrum. And we could say that about so many other offences in the code.

So I've been trying to think, as I'm sure you all have, about whether there are alternative means of identifying the convictions that amount to a serious crime that should trigger the loss of a pension. It seems to me that one possibility would be, as Mr. Williamson has proposed, to have a list of specific offences, but I think that approach has problems too. It's really the opposite problem: it risks being under-inclusive. We may not be able to imagine all of the potential kinds of behaviour that could occur in the future that could be connected to a member's parliamentary responsibilities that we would want to trigger this particular consequence.

Another alternative would be to focus on the actual sentence imposed on the member in a particular case. This is the approach that's taken by section 750 of the Criminal Code which provides that public employment must be vacated if one is sentenced to imprisonment for two years or more. Focusing on the actual sentence imposed in a particular case rather than the maximum sentence that could have been imposed for a particular offence would be a more accurate way of isolating conduct that amounted to a serious crime.

But an even better strategy in my view would be to build upon the existing approach taken by sections 19 and 39 of the Members of Parliament Retiring Allowances Act. By leaving the determination of whether a member should be deprived of his or her pension in a particular case up to the members of the House or the Senate as a whole, it just seems to me that this is a fraught issue and requires the exercise of discretion on a case-by-case basis.

I think members of the House and members of the Senate as a whole are in the best position to decide, on a case-by-case basis, whether a crime was serious enough and strongly enough connected to the convicted member’s parliamentary functions or activities to warrant the removal of pension rights. I would encourage committee members to consider that approach.

Those are my remarks, Mr. Chair. Of course I welcome any questions or comments that committee members have.

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