Procedural strategies are not a new occurrence in the Manitoba Legislature. In the past decade, instances of opposition filibustering have occurred regularly, including in 2013, 2018, 2019, and 2020. The legislative delays intended to, in part, block the passage of the bill including a PST hike in 2013 highlighted the procedural issues with Manitoba’s legislature, prompting some of the rule changes in 2015. More recently, the opposition NDP and independent MLAs have used filibustering tactics to delay the introduction of bills before their deadline, including last spring.
On November 2nd 2020, Pallister’s provincial government introduced 23 bills for their first reading to the Manitoba Legislature. It was noted that afternoon by the Official Opposition House Leader Nahanni Fontaine, that the text of only four of those bills had been tabled. She critiqued this as undemocratic, and moved that the matter be referred to a committee for consideration. Liberal MLA Jon Gerrard echoed these concerns, calling the lack of distribution of the bills “not acceptable”. House Leader Kelvin Goertzen responded during the session, as well as spoke to media later and defended the PC’s actions, remarking that the bills were only entering their first reading this early to prevent springtime filibustering by the Opposition.
On November 25th 2020, Nahanni Fontaine rose in the Legislature again to request the Speaker to “find the government's legislation to have failed to meet the first part of the test of rule 2(8)(a), and therefore not be considered specified under our rules of this House.” She further outlined that in the NDPs canvassing of legislatures, they could not find a precedent where this number of bills had been introduced without text. Kelvin Goertzen responded in the Legislature, and stated that as the party has not failed to provide the text by the second reading, they are not in violation of the rule, nor in violation of the spirit of the rule. The Speaker did not rule on the Matter of Privilege raised.
Notes and References
2015 Legislative rules changed, possibly to permit this type of action for the first time
Include notes on what occurred in last session
Opposition party is permitted to delay up to 5 bills to the next session
All bills missing text went to First Reading Nov 2 2020, except Bill 67, which did Nov 23 https://www.gov.mb.ca/legislature/business/billstatus.pdf
Bills introduced without having text distributed: 46-59, 61-64 and 67
June 2013- PCs (Kelvin Goertzen) filibustering by speaking for over an hour a day to block PST increases- eventually NDP and PCs come to an agreement and it is passed https://globalnews.ca/news/660421/deal-reached-to-end-manitoba-filibuster/
2015- Legislative rule change, first in about 10 years (used to have changes almost yearly)- important context is 2013 filibustering
June 2018- Steven Fletcher filibusters to try an force the PCs to table their budget implementation bill, ultimately PCs and NDP reach a deal whereas bill will be released in August of that year, Fletcher’s filibuster is struck down
March 2019- NDP and Steven Fletcher filibuster to try and block legislation from being introduced before Fall session: https://www.cbc.ca/news/canada/manitoba/manitoba-legislature-ndp-filibuster-1.5059126
Nov 2 2020
Nahanni Fontaine rises in Legislature to remark on bills without text being distributed:
Nahanni Fontaine: “We know that it is the job of MLAs to be able to comment on legislation before this House. This legislation must be made available to members so that they can do their job, Madam Speaker. The fundamental privilege of a member is speech in this Chamber and if the information necessary to provide the basis of this speech is deliberately withheld from members of this Chamber, this fundamentally undermines the ability of MLAs to do their job.
In plain English, Madam Speaker, this is a cheap and worrisome move that undermines the fundamental democratic rights of members of this Chamber.
Beginning at 1:30 p.m., Madam Speaker, the government introduced 23 bills, and as of 30 seconds ago we have only received four of those bills. This removes the ability of members to hold the government to account and to do our job, and it is an insult to the people of Manitoba by a government that is withholding vital information about schools, about justice, about child care and about other matters from the people.
As a result, Madam Speaker, I move, seconded by the member from Concordia, that this matter be immediately referred to a committee for consideration.”
Kelvin Goertzen, Government House Leader: “I would remember when Gary Doer–I believe former Premier Gary Doer brought forward legislation on fixed election dates, Madam Speaker. Contained within that bill was, of course, a number of other things, not just set election dates. I believe also the vote tax and other things were contained within the bill, and he delayed distribution of that bill.
In fact, I think I remember now-Member of Parliament Lamoureux, a former MLA in this Chamber, running into the hallway and claiming victory on that legislation simply because the bill was entitled the fixed election day bill, and only later on when the bill was distributed that he see there was a bunch of other things contained within the bill.
In fact, there may have been matters of privileges or points of order raised on that very issue by the former Speakers that were then ruled upon. But the real crux–the genesis of this problem, Madam Speaker–is–and my friend, the Opposition House Leader, will know–is that the opposition has used the relatively new rules that have been crafted in this House to block bills from being introduced before the specified bill deadline day.
Madam Speaker, you will know and you will remember that, when the relatively new rules were crafted in this House, it was always intended to be a balance and to provide a balance for government to bring in legislation because they have the mandate to govern, but also to allow opposition to do their job and to be able to hold bills over until generally the fall of a particular session so that they could make whatever case they wanted to make to the public that those were not bills that were worthy of support, Madam Speaker.
However, this opposition–led by this Opposition House Leader–has, I would say, used those rules in a way that was never intended by those who crafted them, including former members of the NDP, Steve Ashton, Dave Chomiak, including the member for River Heights (Mr. Gerrard)–current member for River Heights, who was involved with those rules. And, in fact, they have demonstrated both this spring during a pandemic and in previous springs the desire and the willingness to filibuster the ability for bills to be introduced for days before that specified date.
So what we have done as a government is, rather than waiting until spring to provide our intention of the bills that are here now to be introduced, we're doing it months ahead of time, Madam Speaker. So, far from the member's ability to be impeded, to be able to see legislation or to learn about legislation she's learned about it from members' statements, the–or, sorry, ministers today who've made comments about it, in fact, months earlier than would have been the case previously. And that is a direct result of how they have managed or decided to at least abuse the intention and the spirit of the rules as they were crafted by parties prior to the 2016 election.”
Jon Gerrard: “Briefly, Madam Speaker, on this matter of privilege.
It clearly has been raised at the earliest possible time and it is a significant issue because we need the bills, which have been announced and tabled for first reading, to actually be there. The government has had months to prepare these bills and get them ready for distribution, so it's just not acceptable.
The House leader for the government suggests that, because the honourable Gary Doer did this, you know, bad approach in the past, that he should be allowed to do this bad approach now. That's not a good reason.
And further, in the comments of the House leader for the government, he seems to be suggesting that he may not bring these other bills forward for months. You know, this is not normal democracy. This is not the kind of approach that we should have.
The government should be ashamed of itself.”
Madam Speaker: “A matter of privilege is a serious concern. I'm going to take this matter under advisement to consult the authorities, and will return to the House with a ruling.”
Nov 25 2020
Nahanni Fontaine: What's more, the Government House Leader further stated in the press, and I quote: These bills aren't going to be voted upon for months. End quote.
But this is further evidence of the attempt to undermine the rules of the House. There can be no consideration of these bills for extended periods of time, Madam Speaker. This would clearly undermine the intent of the rule, which was to allow for ample opportunity at every stage of debate for consideration and deliberation of bills. This would eliminate con-sideration and deliberation at the first stage of the bill.
I would add one final point with regards to the longstanding traditions and practices of this House and other Houses across the country, Madam Speaker. After canvassing every legislature and House of Commons, we have discovered there has never been in modern legislative history a government such as the Pallister government, that hid and withheld the text of legislation for months on end for nearly two dozen bills.
There is simply no precedent for such a far-reaching act on behalf of the Pallister government. What's more, it has no precedent in this very Chamber, Madam Speaker. While individual bills have been withdrawn–withheld for days at a time to modify technical or substantive matters, never have dozens of pieces of legislation been withheld for months that have impact on every aspect of the government's operations, from education and child care to justice and other matters central to government's work.
Finally, Madam Speaker, I would note the Pallister government has never claimed it needed to withhold the text of legislation in order to meet the specified bill deadline prior to this year. We have used these rules since 2016. The Pallister government's actions show it has acknowledged that distribution of legislation was part of meeting the specified bill deadline. That is the practice of this House, and we ought to be guided by this practice and convention while interpreting the rule I cited above.
As a result, Madam Speaker, of the clear com-mentary made on this rule by the Clerk in 2015, on how past practice has shown the government has, every year, distributed legislation that it has introduced in order to meet the specified bill dead-line, and as a result of the clear fact this situation has never been permitted this Chamber before, I request you find the government's actions to be in violation of rule 2(8)(a).
It is clear that, in order to pass the three-part test to qualify as a specified bill, first reading must be moved today. But moving that bill's first reading clearly requires distribution of the text of the bill as for the reasons I have outlined, Madam Speaker.
In the absence of distribution today, I request that you find the government's legislation to have failed to meet the first part of the test of rule 2(8)(a), and therefore not be considered specified under our rules of this House.
Kelvin Goertzen: “The Opposition House Leader acknowledges within her comments, that within our rules the requirement is that distribution of bills happen prior to second reading. So, Madam Speaker, if she is–on a prima facie case of it–has not made her point of order.
She does reference a committee hearing–a committee of the rules, several years ago, which I was in attendance at. Madam Speaker, I do not believe the Opposition House Leader was in attendance at that meeting.
And she talks about the intention coming out of those meetings. I can speak up to the intention coming out of those meetings, having been significantly involved with it, including the Minister of Justice (Mr. Cullen), who was involved as well, Madam Speaker, and members of the NDP at that time and also the member–still the current member for River Heights (Mr. Gerrard). The intention of those rules was to develop a date by which bills could be introduced, and they would be guaranteed, not passage, but that they would come to a vote, a demo-cratic vote, in the Assembly. That was the intention of those rules. And in exchange, the opposition could select a handful of bills to hold over for several months if they didn't agree with the bill and they wanted to make that point to the public. Those were the intentions of those–of the new rules that came into place prior to the 2016 election.
However, more recently, the NDP have decided to change that intention and have now, for two or three years, undertaken in the spring a blockade of legis-lation by ringing the bells in the Legislature and wasting time in the Legislature, in addition to taxpayers' money, for hours and hours, days and days, Madam Speaker, to stop bills from being introduced and democratically debated and voted upon. Those were the–that was never the intention of the new rules.
So the government, instead of waiting until the spring to introduce those bills, have introduced them now in the fall, so the opposition and all Manitobans have a much earlier understanding of the legislation. Even if the bills aren't distributed, they'll still be acknowledged much, much sooner than they would've been before, to avoid the blockade of the NDP that they no doubt would've put up.
Now, Madam Speaker, the Opposition House Leader spoke of unprecedented actions in the parliamentary history. I think it's unprecedented that an opposition would ever spend days, dozens and dozens of hours, blockading legislation and demo-cratic debate during a pandemic, a once-in-a-100-year pandemic. But that is what the Opposition House Leader did.
So, clearly, she's wrong not only on the facts, because our rules clearly state that bills need to be distributed before a second reading, but she's clearly wrong on the intention of what the rules are to do, but also, I would think, on the spirit of what Manitobans would expect an opposition to do in a pandemic. It's certainly not to hold the Legislature hostage while work is trying to be done.
Now, in conclusion, Madam Speaker, if the Opposition House Leader wants to talk about the rules–and I've extended this invitation to her many times–I'm happy to speak to her about the rules. I'll send her a Zoom invitation this afternoon, and she can accept it, and we can discuss the rules, how they can operate for all parties and independent members in the Legislature. But she does not have a point of order. The rules were followed. The spirit of the rules are followed, and what Manitobans would expect us to do in a pandemic has been followed as well.
Jon Gerrard: “I want to add that there are clearly two very different interpretations of the rules, and that you, as Speaker, will need to take a very careful look at this before you make a decision.
There are legal and ethical issues. The legal issues surround the interpretation of the rules. I was at the meeting that the House leader for the government mentioned, and it was the intention, indeed, to have the first reading of the bills before the said date. It was, of course, not the intention of–at that point, or not the expectation, that we would have the time and the government legislative agenda being hijacked for a number of days, indeed, I think a week, at one point, at least.
However, the–we didn't, at that meeting, look carefully at the issue of tabling of bills and when they would be tabled. And that was in part because the tradition has always been that the first reading would be when you would table a bill, and that, although there were rare exceptions, these were so rare that there wasn't a serious consideration one way or another, quite frankly, of whether the tabling of the bill would or would not be required before this date.
So I think that the interpretation presented by the NDP is a legitimate interpretation. I would suggest, because today is the date, that it might be important, even though it's complex, for the Speaker to rule today. But if the Speaker decides not to rule today, then I suggest that the government should table all the bills today so that they don't risk losing so many pieces of legislation if the government loses on the Speaker's ruling.