Court case blasted as contrived crisis
Parliamentary Budget Officer Kevin Page and NDP Leader Tom Mulcair cooked up a crisis to bring the matter of the PBO’s mandate before the Federal Court, a government lawyer charged Friday.”
“You have a manufactured crisis between two parties who are agreeable to bring this matter to court,” Robert MacKinnon told Federal Court Judge Sean Harrington. “It’s almost an abuse of the process to create that sort of artificial proceeding.”
Though Page’s lawyer, Joseph Magnet, told the court that the PBO simply wants to know what he is or isn’t entitled to do, MacKinnon described Page as an “advocate. There is no neutrality here.”
MacKinnon was speaking on the final day of a Federal Court hearing into Page’s reference application asking the court to clarify his mandate. The case arose after Mulcair asked the PBO to analyze spending cuts in the 2012 budget, including their impact on jobs and services to Canadians.
Page turned to the court after some deputy ministers missed deadlines to supply the financial documents he said he needed to respond to Mulcair’s request, and several Conservative ministers said he was exceeding his mandate.
MacKinnon and principal parliamentary counsel Steven Chaplin, representing Speaker Andrew Scheer, spent most of the day hammering home their argument that the courts have no proper role in what they described as an internal dispute among parliamentarians over the scope of Page’s mandate.
Harrington, who questioned and challenged lawyers’ statements throughout the two-day hearing, sparred several times with Chaplin.
At one point, the judge noted that Parliament created the PBO through statute, even though that wasn’t necessary. “Did Parliament intend to send a signal that (the PBO) has recourse to the courts?” he asked Chaplin. If that wasn’t the intent, he added, “What’s the point? What’s it all about, Alfie?”
A bit later, Harrington challenged Chaplin’s claim that MPs are free to do whatever they like with respect to their own internal affairs. “Are you saying parliamentarians are above the law?” he asked.
Chaplin agreed they weren’t, but under the Constitution, he said how MPs and senators carry out their business is their privilege, and the courts must not interfere.
In his submissions, MacKinnon focused first on two “threshold issues” that he said should lead to dismissal of Page’s application. The first was that the matter was “non-justiciable” because the PBO’s statutory mandate “is properly a matter for Parliament to resolve and not the courts.”
The second was that Page’s application doesn’t comply with the requirements for a reference under the Federal Courts Act, which allows the court to determine specific questions arising in “live disputes” during proceedings before tribunals.
But the questions posed by Page “do not arise at any stage of ‘proceedings’ and there is neither a live dispute nor an adequate factual context in which to resolve the general question,” MacKinnon said. Several times during the hearing, Harrington questioned the method Page used to get his application before the court.
At the end of the hearing, Harrington reserved his decision. It could be some time before it is released.
Meanwhile, Page’s mandate expires Monday. The government has appointed Sonia L’Heureux, Parliament’s chief librarian, as interim PBO and she has the power to withdraw the application at any time prior to the release of the decision.