HAFF Committee Meeting

STANDING COMMITTEE ON PROCEDURE AND HOUSE AFFAIRS

COMITÉ PERMANENT DE LA PROCÉDURE ET DES AFFAIRES DE LA CHAMBRE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 16, 2000

• 1111

[English]

The Chairman (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): I call the meeting to order.

Mr. Chuck Strahl (Fraser Valley, Canadian Alliance): I have a point of order, Mr. Chair. I have a motion I'd like to put on the floor: that in view of the unacceptable action of the chair of the Standing Committee on Procedure and House Affairs, the member for Scarborough—Rouge River, this committee consider the action by the chair as a serious breach in the observance of the proprieties of this committee and the management of its business. I have that motion in both official languages, if I could put that forward.

Mr. Jay Hill (Prince George—Peace River, Canadian Alliance): I'll second that motion.

Mr. Chuck Strahl: I'd like to speak to that motion, if I could. It does seem to me, Mr. Chairman, that we are at a bit of a crossroad—

The Chairman: Order. You have assumed, Mr. Strahl, that you are in a position to insert an agenda item for debate.

Mr. Chuck Strahl: Right.

The Chairman: This would, in my view, be an incorrect assumption. We have an agenda today. We have a witness. If you did wish to take up a point of order, you have every right to. I recognized you for that purpose. I have allowed you to introduce and circulate the wording of a motion, but I do not accept it as an item of debate at this time. Certainly it will be. That being the case, I thank you for introducing the motion. Colleagues will stand advised. At some point it will likely be a subject the committee will take up.

At this time—

Mr. Jay Hill: Mr. Chairman—

The Chairman: At this time—

Mr. Jay Hill: Mr. Chairman, with all due respect—

The Chairman: At this time—

Mr. Jay Hill: I think this should be considered the same as a motion of censure against a speaker. It takes priority—

The Chairman: At this time we will be hearing from our witness.

Mr. Jay Hill: —over all other business of the committee, with all due respect.

The Chairman: At this time it is the chair's view that we will hear from our witness. This witness has been arranged through the request of one of our colleagues. There have been great efforts put forward to prepare for this particular meeting with this witness. It is my view that we will continue with that.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Mr. Chairman, you said that you would recognize points of order, so on a point of order I would just like to make the point, why should we proceed with any business of the committee if we have no confidence that whatever the committee arrives at by a vote will not be reported to the House at the discretion of the chair?

Mr. Chuck Strahl: Exactly.

Mr. Bill Blaikie: If the chair reserves the right to say “I don't like a minority report; therefore I'm not going to report it to the House”, which is the way I understood the previous meeting concluded.... I wasn't here when that happened, but when I heard about it, certainly I was concerned.

• 1115

It seems to me that the chair doesn't have the right to say “I don't like a report; therefore I'm not going to report it.” If it has been duly arrived at and voted on and provision has been made prior to the drafting of the report for the inclusion of minority reports, I don't see it as within the purview of the chair to say “I don't like a particular minority report”. I may not have liked it either. I may have thought that it involved considerable hyperbole with regard to the situation. But that's not for me to judge, and it's not for the chair to judge.

So I ask the chair in the context of this point of order, why should we bother? We have a task before us to determine certain matters with regard to the role of legal counsel, solicitor-client privilege, etc. Are we to understand that if the chairman doesn't like that report, whatever we come up with, and if there's a minority report and the chairman doesn't like it, he will simple say “I don't like this report, so I'm not reporting it to the House”? If that's the case, then we're kind of wasting our time, aren't we? Why would we bother to sit here if we're subject to that kind of fiat at the end?

Perhaps the chair could explain himself. Does he intend to report to the House the report that was duly arrived at by this committee? Is his little fit of temper over with? If the chair could report that to us, we could get on with the business of this committee.

The Chairman: Thank you, Mr. Blaikie. I happen to agree with almost everything you've said.

Mr. Bill Blaikie: Are you going to report it?

The Chairman: Yes, if it is the will of the committee to report.

I think you may not have fully articulated what I said at the previous meeting. If you wish me to—

Mr. Bill Blaikie: Maybe you could repeat it.

The Chairman: Okay. At the time of the last meeting I raised for members the fact that there had been minority reports appended to the main committee report and that in all likelihood members of the committee had not had an opportunity to read the minority reports. The content of the minority reports was such that it appeared very unlikely that the House would successfully consider or implement the report of this committee, which was recommending rule changes, it being the tradition of this committee to attempt to put together a consensus of all the parties and recommend changes to the House without there being significant debate.

The nature of the minority reports in this case, which I had not had an opportunity to read until the documentation got to me in the House that morning, seemed to indicate that we might not have sufficient consensus to warrant us recommending anything to the House. So it was my view that members should take an opportunity to read those things and reconsider. I did say very clearly at the meeting that if it was still the wish of members that I report to the House, I would, and I'm prepared to do that on a moment's notice. I simply wished to avail members of an opportunity—

Mr. Bill Blaikie: Do you need a motion that it be reported?

The Chairman: No. Mr. Blaikie, if there is no other indication from the members or the party leaders at this meeting or within a few hours on either side of it, then I would table the report in the House. No further motion is really necessary. If members have had a chance to read it and they don't wish to change our course, then our course is to introduce that report with its minority reports and to let it stand for all members in the House to see.

Mr. Bill Blaikie: If I might just pursue the point for a minute, it seems to me that we did nonetheless do what we were trying to do, and that was to arrive at a recommendation to the House. It would seem to me to undermine a lot of the work that went into a lot of those meetings to allow the chair's objection, or whatever, to the minority reports to get in the way of getting that reported and into the House, where it might actually take effect.

• 1120

If silence is all that is required for the report to be reported—that is to say, if no one asks that the report not be reported—then I would counsel silence.

The Chairman: It's my understanding that the House will not be able to proceed with implementing what we've recommended.

Mr. Bill Blaikie: Why is that?

The Chairman: Because there's such a significant absence of support for it.

Mr. Jay Hill: How do you know that? We haven't even tabled it in the House and you already know what the House is going to decide.

The Chairman: By speaking with members of opposition parties, as chairman, I've reached a conclusion that there is not enough support to warrant anyone.... Well, I shouldn't say anyone. Certainly I can't prevent members from moving concurrence in a report, but—

Mr. Bill Blaikie: Why can't we report it anyway?

The Chairman: It can be reported, and it will be.

Mr. Bill Blaikie: No other committee waits to see whether the House is going to adopt its motion before it reports. We've done our work. We report it to the House and then it's up to the respective parties and everyone else who has to do with how things unfold in the House to deal with that. But we've done our work. Let's report what we've concluded, even if it's not unanimous.

The Chairman: Well, in the view of the chair, the minority reports constituted such a derogation from the intent and trust and purpose of the report that I thought members should have an opportunity to apprise themselves of that before I proceeded to introduce it. Members have had that opportunity, and no one has suggested that I do anything other than report it.

Mr. Bill Blaikie: So can we take it that you will report it?

The Chairman: Yes.

Mr. Bill Blaikie: Okay. That's what I wanted to know.

Mr. Chuck Strahl: Mr. Chairman, if I could just—

The Chairman: Is this on the same point of order?

Mr. Chuck Strahl: Yes, it's the same point. I have four quick points, Mr. Chairman, on this issue.

The Chairman: Excuse me. I thought you were just going to add something small, and now it's four.

Mr. Chuck Strahl: It will take longer if we discuss it, but it's only four points. It may be over in a minute.

One is that unfortunately, tonight we have 30-plus votes. This report, if it had been tabled and if it could have been adopted, would have been a wonderful step forward for all the reasons we talked about in the report. That's not going to be possible. It has not been tabled and it couldn't have been adopted, so it's not going to happen. That's unfortunate.

Second is the prejudging of the will of the House. The committee makes the report and we give it to the House. The House will adopt it or not, as it sees fit. We can't prejudge the House. We don't know what other factors are in place. I'm surprised that you didn't report it to the House.

The Chairman: Mr. Strahl, I'm going to interrupt you. I appreciate your desire to walk through these issues, but I think we've adequately dealt with what's going to happen to our committee's report. If you have a point of order about the order of business here, I'm willing to listen to it, but I don't want to entertain more of what I will call debate on the issue that was raised earlier. I think we disposed of it.

Mr. Chuck Strahl: The last point—

The Chairman: Is this an item of debate or a point of order?

Mr. Chuck Strahl: It's the same point of order that Bill Blaikie brought up.

The Chairman: I've asked you if it's a point of order or an item in debate. Is it a segment of the debate?

Mr. Chuck Strahl: It's a point of order.

The Chairman: I'll listen to it.

Mr. Chuck Strahl: Okay. The point of order is that regarding the report in question, we actually voted for it. We put in a minority report, but we supported it. It didn't go as far as we wanted.

Mr. Rey D. Pagtakhan (Winnipeg North—St. Paul, Lib.): I have a point of order, Mr. Chairman.

Mr. Chuck Strahl: What we want to know is if we had another report—

Mr. Rey Pagtakhan: Mr. Chairman, point of order.

Mr. Chuck Strahl: I'm on a point of order already, Rey. Take a powder.

The Chairman: Let Mr. Strahl finish up.

Mr. Chuck Strahl: We voted for the last one on the assumption that it would be reported to the House. As Bill says, if we go through this witness today and we approve of another report and we vote for it again, what assurances do we have that it's going to be reported to the House forthwith, once we've done with it? That's the point of order: it's the uncertainty of having concluded our business and assuming that this means it's going to be in the House forthwith, in the next day or so. We don't want the discretion of the chair to say we may or we may not, depending on whether he thinks the winds are blowing our way.

The point of order is this. If we go through with the rest of this business, do we have assurances that the chair is going to report it in a timely way to the House when we're done? That's the point of order.

• 1125

The Chairman: I can only offer you the philosophical assurances of taxes and death as certainties. The rest we leave to politics.

Mr. Chuck Strahl: So you can't assure us that you—

Mr. Jay Hill: So you don't take direction from the committee?

The Chairman: I always take direction from the committee.

Mr. Jay Hill: You would have reported it had you done so.

The Chairman: I'm not so sure I want to take a hypothetical direction, but I certainly will take a direction. Mr. Strahl's suggestions are very hypothetical. I appreciate—

Mr. Chuck Strahl: Well, they're based on recent history.

The Chairman: I appreciate the efforts at guidance coming from all members, and I think we should proceed to our business of today.

That being the case, we're continuing our study of the confidentiality issue referred to us from the House. At the request of one or more of us, we have invited Diane Davidson. Ms. Davidson is the deputy chief legislative counsel in the regulations section at the Department of Justice. She was, of course, formerly very well placed in the legal counsel context here in the House of Commons. You'll all be familiar with her and her work over the years.

Welcome, Ms. Davidson. Some members will be putting questions on the subject, and I hope your experience will be useful to us. I'm sure it will. Did you prepare any kind of an opening statement?

Ms. Diane Davidson (Deputy Chief Legislative Counsel, Regulations Section, Department of Justice): Yes, I did, Mr. Chairman. I thought it would be useful for the committee to have an idea of the issues we discussed in setting out the context in which the lawyers in the office of the law clerk and parliamentary counsel were operating before 1991.

The Chairman: Please carry on.

[Translation]

Ms. Diane Davidson: I've familiarized myself with the committee's order of reference which has led it to question the nature of the confidentiality surrounding the legislative drafting services provided by the Office of the Law Clerk and Parliamentary Counsel and, until quite recently, by the Legislative Counsel Office.

I want to say right away that the whole question of the confidential nature of legislative drafting services provided by legislative counsel and solicitor-client privilege is complex in many respects and concerns not only the House of Commons legal advisors, but equally those working elsewhere in the federal, provincial and municipal public service.

However, before drawing some conclusions from existing analyses, in response to a request from your committee chair, I would like to review the legislative drafting function up until 1991 within the Office of the Law Clerk and Parliamentary Counsel while under the direction of two previous law clerks, namely Joseph Maingot and Marcel Pelletier.

When I was hired as a parliamentary counsel in the early 1980s, it was clear that solicitor-client privilege applied without distinction to the legislative drafting and other legal services provided by the office. As continues to be the case with the office of the Law Clerk of the Senate, we offered a range of advice on legislative drafting and on the legislative process in general and answered various legal questions about conflicts of interests, the interpretation of the laws of Parliament and any legal matter of interest to the House and its members.

Our office served in some respects as in-house counsel for the House of Commons. It was made up of lawyers and paralegal officers, text processing clerks and secretaries who, given the nature of their duties, were bound by the rules of solicitor-client privilege.

As a condition of employment, parliamentary counsel were required to be members in good standing of a provincial or territorial bar association and preferably to have studied legislative drafting at the University of Ottawa as part of their post-graduate study program. This condition of employment was specifically listed in our job descriptions.

Back then, House clerks were regularly consulted on procedural matters, although they were not part of our office staff as such.

• 1130

From an organizational standpoint, the Office of the Law Clerk and Parliamentary Counsel was set up much like a regular law firm or government legal services. We practised law in offices that were separate from other House services and kept separate files from other House administrative and procedural files. Like any legal firm, we kept confidential records.

Our office also guaranteed solicitor-client privilege by indicating in writing in its correspondence that all services and advice were protected by solicitor-client privilege. It was understood, either through explicit or implicit actions, that communications were privileged from disclosure, unless the member gave notice to the contrary.

[English]

In fact, at the time it was well understood and accepted that as in-house counsel all lawyers in the office shared the same professional duties and responsibilities as lawyers in public or private practice as established by their bar association.

In addition to their professional duties, parliamentary counsel were subject to special public service duties sanctioned by the Criminal Code provisions on conflicts of interest, such as influence peddling and breach of trust, and also by the contempt provisions of the law of parliamentary privilege.

The law clerk's office lawyers understood that serving in a parliamentary setting could not be analogous to serving in a corporation or in the executive branch of government, where ultimately only one client was being served with a single directing mind. Counsel working in the office of the law clerk understood that matters were more complex at the House because of the constitutional position of each individual member, who possessed legal independence and accountability in the conduct of his or her parliamentary functions.

In other words, counsel did not consider members of the House of Commons to be part of an agency relationship with the House or the Board of Internal Economy, as would employees of a corporation, or, for instance, a government department. As a result, counsel served each of the House's 301 members as separate and independent clients.

This essentially describes how the legal services were performed in the office of the law clerk until 1991. I should point out that the legal services branch, which was under my responsibility until January 21, 2000, explicitly made similar representations to members and operated under the same conditions.

For instance, when legal services were rendered to members on employment matters, on conflict of interest issues, and on other legal matters arising in the course of their duties as members, the lawyers in the office made it very clear to members that solicitor-client privilege applied to the advice provided to them. This guarantee was not only important to allow members to freely consult, in all confidence, lawyers in the office, but it was also considered essential to prevent disclosure in the context of any future litigation where advice received by the member from in-house counsel on a particular matter could not be disclosed because solicitor-client privilege applied.

[Translation]

Before considering possible solutions to the confidentiality issue which, according to the order of reference, includes the restructuring of the Office of the Law Clerk and Parliamentary Counsel or even the possibility of legislative drafting services being provided by political parties, I think it would be useful for the committee to direct its attention to the main findings of existing studies that have been done on solicitor-client privilege and on the legislative drafting function in the public sector and in Parliament.

Generally speaking, the legislative drafter is recognized as performing a legal function that is subject to the rules of solicitor-client privilege.

In her MA thesis entitled The Case for Introducing Specific Ethical Standards for Legislative Drafters - a thesis that she successfully defended on January 25, 2000, Ms. Deborah MacNair noted the following:

[English]

A legislative drafter in Canada is always presumed to be a lawyer and as a result to possess ethical standards, skills and knowledge which are associated with and expected of members of the legal profession.

• 1135

Ms. MacNair suggests that drafters must uphold the same standards of honour and etiquette and are in fact subject to the same duties to their client and to the court as any other legal practitioner. They and their clients have the same privileges.

In her thesis, Ms. MacNair makes a proposal to add to the existing Canadian Bar Association code of conduct some specific provisions to guide the conduct of legislative drafters as members of the legal community performing significant and unique legal services as lawyers.

[Translation]

I realize that this committee does not have a mandate to undertake an in-depth study of the issue of solicitor-client privilege and the particular problems this presents for all public sector lawyers, but after reading the committee proceedings and further to my discussions with the committee chair, I felt it would be a good idea to provide members with a brief analysis of solicitor-client privilege. I believe you've already received this handout. I hope it helps you when the time comes to draft your report. I don't intend to review the contents of this document with you this morning.

It's worth noting, however, that in Descôteaux, the Supreme Court of Canada clearly broadened the scope of solicitor-client privilege. In the opinion of the court, solicitor-client privilege may be invoked under any circumstances, not just in relation to communications between a lawyer and his client as part of some legal proceedings or litigation action. In short, in the opinion of the court, solicitor-client privilege applies to all communications between a lawyer, including a legislative drafter, and client; to all communications involving consultations or legal services; to all communications deemed by the parties to be confidential.

Thus, solicitor-client privilege could very well apply to the relationship between a legislative counsel and a member, to the extent that this is akin to communications between a lawyer, a legislative counsel and a member-client, communications consisting of legal services that the member and the legislative counsel deem to be of a confidential nature.

According to Wigmore on Evidence, a specific request for communications to remain confidential need not be made. However, the basic solicitor-client relationship does not, in and of itself, establish a presumption of confidentiality. Each situation must be considered individually and a determination must be made as to whether communications must be deemed confidential. The expectation of confidentiality on the part of the client is the determining factor in deciding whether privilege applies. Moreover, solicitor- client privilege may automatically apply as soon as the client approaches the lawyers, that is even before a retainer has been agreed upon.

The second conclusion that can be drawn from existing analyses is how very important it is to clearly determine who the client is, be it the institution of Parliament, the Board of Internal Economy or the individual MP.

If, after given the matter careful consideration, the committee is of the opinion that parliamentarians are the real clients in this instance and that, in the course of performing their duties, they need to be protected by solicitor-client privilege, the committee can then consider how members might get across the fact that they are waving this protection.

From a legal standpoint, there is a presumption of solicitor- client privilege unless such privilege has been waived. To impose on parliamentarians the burden of having to indicate in writing that they wish to be protected by solicitor-client privilege would be an unusual step indeed.

If the committee decides that the institution of Parliament is in fact the client, then the House would have to ensure that members are clear on the concept and would have to provide them with an explanation of the legal scope of statutory confidentiality as set out in the Parliament of Canada Act, in terms of the legislative drafting services they receive.

It would also have to be made clear that pursuant to the solicitor-client relationship with the institution of Parliament, services are provided to the extent that they are in keeping with the interests of the House of Commons. The challenge here would be to define the parameters associated with potential conflict of interest areas. This could prove to be a very complex undertaking since undoubtedly the House would not want to lead or make itself accountable for the legislative activities of parliamentarians.

• 1140

The third observation that can made is this: parliamentary privilege and solicitor-client privilege are not interchangeable. Solicitor-client privilege affords a different protection to parliamentarians in the performance of their duties. It could realistically be invoked in connection with any legal or quasi- judicial procedure when the courts determine that parliamentary privilege does not apply when disclosure has occurred. Moreover, the committee should note that different penalties apply when solicitor-client privilege is violated than when parliamentary privilege is violated.

Finally, while the purpose of your study is not to call into question maintenance of the principle of solicitor-client privilege in the case of legal advice dispensed by the Office of the Law Clerk and Parliamentary Counsel and, until quite recently, by Legislative Services, I think the House of Commons needs to be concerned about clearly conveying any decision to exclude the drafting services and legislative advice provided by these same lawyers. This wasn't a problem in 1991 when the same lawyers provided these services, while enjoying the protection of solicitor-client privilege.

Thank you for your attention. I would now be happy to answer all of your questions.

[English]

The Chairman: Thank you very much for that exhaustive opening statement. I know it will be very helpful. I have a sense that it will be reread by some of us as we try to conclude this reference from the House.

Now we can go to questions, starting with Mr. Strahl.

Mr. Chuck Strahl: Thank you.

I agree with the chair that those of us who are wrestling with the solicitor-client privilege and what it all means will be rereading your remarks when we have them in transcript, because I do think they are going to be very useful to us.

You mentioned several times the date of 1991, prior to 1991, as being one of those critical moments when things all changed. In your opinion, since 1991—or perhaps there is another date in there—has there been a time when solicitor-client privilege has not been maintained? Are there examples of that?

Ms. Diane Davidson: As I mentioned, since 1991, at least in the legal services branch, the office I was managing did follow solicitor-client privilege in relation to any advice members were asking the office for. I'm unaware as to whether it actually existed in the office of legislative counsel. I was not managing that particular office. I know it existed until 1991 in the office of the law clerk and parliamentary counsel.

The office was divided into two branches in 1991. One was responsible for legislative counsel services and the other for legal services. That is why I'm more familiar with the legal services side of the business.

Mr. Chuck Strahl: Right.

In my experience, and of course being on the board, we've had quite a few dealings with legal services when you were in that position over the last few years, and I felt, all during that time, there was never any question of confidentiality or privilege when dealing with you in that particular office.

I think we can safely say that office has never been questioned, either in the House or otherwise. That office has never come up as an example of concern. I mean, it's always been dealt with, and that privilege has always been maintained. I've never had any doubt about that, and I've never heard a single complaint otherwise. I think we can hive that off and say that the legal services branch gives good legal advice in a confidential way to members of Parliament, and in a timely fashion. I recommend to all our colleagues, if something comes up they're concerned about, to contact the person, previously you, in the new position.

So I don't think that's a problem. The problem we're having is with legislative counsel.

• 1145

The legislative counsel is.... I think the Speaker's ruling was that there is a type of cluster group that has confidentiality within it, but it's not necessarily just you and the lawyer; it's you and the lawyer plus the clerks, the typists, and whoever else might be in the office. It's still confidential, but it's not necessarily just between you and that one lawyer. Is that your understanding of it?

Ms. Diane Davidson: I'm not familiar with the structure of that particular office, but I would like to make the point that as in any law firm, you can have counsel, you can have paralegal services, you can have secretaries—and you can have clerks as well. As long as they're all subject to the solicitor-client confidentiality, for instance, there is no problem. But I'm unaware as to how they are organized.

As in the document I distributed to you, I think the courts would look at how the office is organized to determine if solicitor-client privilege exists, for instance, or could have been waived. The court will look at the way the files are being managed, etc. Otherwise, if confidential information gets disclosed and it's already in the hands of a wider circle, then it's more difficult to recognize the solicitor-client privilege.

Mr. Chuck Strahl: In more recent times, since 1991, the office has been organized with a clerk in charge of the legislative counsel, and the clerk, or the manager, is the one who allocates the time. You mentioned that all 300 members of Parliament have access to legal counsel, independent counsel, and they deserve that, but when you only have two or three lawyers, somebody has to manage their time. I mean, not all 300 of us can go in there and say okay, I need the priority today for this committee or for this private member's bill or for this amendment I'd like to propose. Somebody manages their time.

Is there anything wrong with a clerk or some manager organizing a limited...? You know, if we have only two or three staff, does that seem to you like a proper way of...? It's not unlimited access, in other words; somebody is picking and choosing who gets priority today.

Ms. Diane Davidson: It's my understanding that the office was being managed by Robert Walsh, who was a lawyer at the time.

Mr. Chuck Strahl: He's also a clerk.

Ms. Diane Davidson: Yes, but he's also a lawyer.

I'm trying to understand your question.

Mr. Chuck Strahl: It's just that you mentioned in your remarks that all members of Parliament have a right to independent counsel, and yet there are only two lawyers and 300 MPs. So we don't all have equal rights or equal access. Somebody gets the short stick on any given day. It might be private members' business, it might be amendments, or it might be presence at committee.

Who should decide, if there are not unlimited resources, who gets access to the lawyers?

Ms. Diane Davidson: I think that should be managed inside the office. I used to manage legal services, and we were not a very large group of lawyers. We look at the priority, the complexity, and the urgency of the question. That's how we prioritize.

Mr. Chuck Strahl: Sure. It's not carte blanche, then. The right to a lawyer is not.... You can't phone up legal counsel and say “All right, at the committee today I'd like you to come in and sit with me for the day, because I have a couple of amendments”. The lawyer doesn't salute and say “Okay, I'll be there”.

I mean, they can be there for somebody. The manager divvies up the time, then, and says “Well, we can be there for this portion, but I'm sorry, we can't be there for eight hours; we just don't have the resources.”

Ms. Diane Davidson: I think the point you're making has to do with how many resources, how many lawyers you would like to have serving the members. Of course if you have a smaller number of lawyers, their availability will be limited. I completely agree with that.

Mr. Chuck Strahl: Okay. Thank you.

The Chairman: Mr. Bergeron.

• 1150

[Translation]

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Mr. Chairman, I'd like to start by thanking Ms. Davidson for her eloquent and comprehensive presentation. There's no doubt in my mind that she will be able to enlighten us in our consideration of this order of reference.

I agree with Mr. Strahl that we should set aside the question of legal services for the time being because this isn't part of the current order of reference. We're talking now about legislative counsels, not legal services. However, I'm not as convinced as he is that the solicitor-client relationship is that clear as some would have us believe. Previous presentations made to this committee have implied that this relationship could be called into question. I would imagine, however, that it would be up to the Board of Internal Economy to pursue that matter.

Ms. Davidson, you stated several minutes ago in response to a question from Mr. Strahl that it was customary in a law office for a number of individuals closely associated with the lawyer to be bound by solicitor-client privilege. This would include secretaries, clerks, and even the receptionist. I'd like you to clarify something for me. Would I be wrong to say that in order for this assertion to have some validity, not only would these individuals have to be associates of the lawyers, they would also have to report to him, since he is bound personally by the solicitor-client privilege?

Ms. Diane Davidson: That's absolutely true. You're correct to say that the services in the office must report to counsel who has been retained by the client, the member of Parliament, to provide a particular legal service. Counsel acts as the point of contact for the client and makes legal representations that are protected by the principle of confidentiality.

Thus, the primary relationship is between counsel and the MP. All support staff should be bound by the same principles and it should be clearly understood that counsel dictates the relationship with the MP.

Mr. Stéphane Bergeron: Therefore, if I understand what you're saying and the explanations you provided earlier, if clerks must intervene in this relationship, then they do so under two conditions: first, that the MP has given his consent and second, that they report to counsel, that is to the legislative counsel.

Ms. Diane Davidson: That's right. It's important that they report to the legislative counsel. Let me make one thing clear. The issue is not whether clerks are present or not during communications. The issue is understanding that if they are in fact present, they are subject to the same requirements as counsel. It's not necessary to put the question to parliamentarians provided that when it comes to running the office, there is agreement on who the client actually is, on the services to be provided and under which conditions they will in fact be provided.

Mr. Stéphane Bergeron: Therefore, there would be no need to seek parliamentarians' permission to convey this information to the clerks, given that the clerk or clerks report to the legislative counsel.

Ms. Diane Davidson: That's correct.

Mr. Stéphane Bergeron: I see.

You stated that you have read the committee transcripts. No doubt you know that I tabled a document prepared by your services in 1988 "under the authority of the Clerk of the House of Commons". This document explicitly referred to the existence of solicitor- client privilege when a member asks legislative counsel to draft amendments or a bill on his behalf.

• 1155

For reasons too numerous to mention at this time, it seems that people have tried to call into question the credibility or validity of this document. Could you tell us more about this paper and whether or not there is any validity to it?

Ms. Diane Davidson: I believe this document was prepared as part of a series of papers produced for members by the Office of the Law Clerk and Parliamentary Counsel for orientation purposes. When a new legislature convened, the office prepared some documents to help new members understand the scope of their responsibilities. This was one of the papers produced. As I recall, there was also a paper on conflicts of interest produced, as well as one on the role of the Office of the Law Clerk and Parliamentary Counsel.

These papers were also useful sources of information for foreign parliamentarians visiting Canada. They described to them the Canadian parliamentary context. These documents, which could serve other purposes as well, were distributed to members at the start and during the course of a legislature.

Mr. Stéphane Bergeron: Therefore, if I understand you correctly, this document, which was circulated not only to Canadian parliamentarians, but to foreign parliamentarians as well, was used between 1988 and 1993.

Ms. Diane Davidson: That's correct.

Mr. Stéphane Bergeron: And at no time during this period were the contents of these papers called into question.

Ms. Diane Davidson: Not to my knowledge. I'm not aware of any such thing happening.

Mr. Stéphane Bergeron: Fine. There's one last thing that caught my attention. In your presentation, you referred to a master's thesis outlining conduct generally deemed acceptable by professional bar associations. Did I understand correctly that members of a bar association believe that solicitor-client privilege applies to dealings with all clients?

Ms. Diane Davidson: I think closer scrutiny of this master's thesis which has just been completed is warranted. It looks at solicitor-client privilege in the context of legal services and examines legislative drafting issues. It concludes that in Canada, legislative drafting means legal services provided by lawyers.

Specifically, this thesis takes a close look at the lack of a clear framework to guide the conduct of lawyers in the public sector. The codes of conduct of the various bar association focus more on the solicitor-client relationship in the private sector. The author of this thesis argues that what is needed are specific provisions in these codes of conduct, or at the very least in the Canadian Bar Association Code of Conduct, setting out the conditions in which public sector lawyers can perform their duties and spelling out the meaning of solicitor-client privilege in the public sector.

Mr. Stéphane Bergeron: It has been suggested to this committee that legislative counsel were perhaps guilty of breaching their professional duties by failing to request from their bar association an opinion on whether solicitor-client privilege applied to them. If I follow you, had they sought such an opinion from their professional association, the latter would have been hard pressed to give them a clear opinion about their rather unique situation.

• 1200

Ms. Diane Davidson: According to Ms. MacNair's master's thesis, there are no clear rules that apply to legal counsel working in the public sector. She is concerned about this and recommends very strongly that clear rules be established to assist lawyers and thus resolve some of the problems they may encounter in carrying out their duties.

Mr. Stéphane Bergeron: Maybe we should simply conclude that our legislative counsel fell victim to the fact that professional associations have no clear rules that apply to counsel working in the public sector.

[English]

The Chairman: I'll go to Mr. Blaikie. And seeing no one else on my right, I'll then go to Mr. Hill.

Mr. Bill Blaikie: A lot of what I wanted to ask has already been addressed. But if I could just try to get to the heart of the matter, it has been suggested to the committee that if lawyers are made to work in a team with non-lawyers, whether they be clerks or whatever—in this case, clerks—and if the confidentiality is to be understood in the context of a team, as say lawyers plus the people they're working with, clerks, whatever, that is somehow a violation of lawyers' self-understanding, that it's an ethical dilemma for lawyers to have to work in this kind of context. I mean, this is really what has been said to the committee, if I understand it correctly.

It's not exactly what we set out to examine, but it is what we now have to reckon with as a result of the earlier evidence we were given. So I wonder if you could give us your opinion as to whether you think that is the case—if lawyers have to be in a separate room or in a separate department and not working in a team context in order for their professional ethical consciousness to be intact. I'm not trying to put this pejoratively. I think this is very much how it was communicated to us. Or is there either a variety of opinion or a lack of agreement within the legal community as to what would be appropriate in these kinds of circumstances?

Ms. Diane Davidson: First of all, I'd like to take this opportunity to say that while I worked in legal services I often had recourse to the clerks, and I would like to point out to the committee that I've always had quick and professional collaboration with clerks. I don't think the question is as much whether clerks can work inside the same office as it is a question of who's managing the relationship with the client. I think that if we are making legal representations to clients, then the lawyers have to be responsible for the relationship, careful about the representations that are made to the member, and clear about those representations. I think that's the area where I see a need for clarification.

You mentioned a “team” setting. Well, that can have many and various meanings, but when a lawyer is approached by a member, the member is seeking to obtain legal services, legal advice of a legislative nature or legal services of another nature, such as interpretation of a particular statute. I think that this is where I would see a need for clarification, that the information provided within that context or that relationship is understood to be for the purpose of serving the member in a particular instance, for a particular service, and that the information should be used for that purpose solely, unless the member waives privilege or says “I would like you to consult outside counsel or outside experts”.

• 1205

Mr. Bill Blaikie: Or the clerks—

Ms. Diane Davidson: Well, the clerks—

Mr. Bill Blaikie: —as to what is in order or....

Ms. Diane Davidson: Yes, as to what is procedurally in order.

As I mentioned in my opening remarks, I did that quite often when I was part of the office of the law clerk prior to 1991, and I always received very professional and fast service. It was very useful for the member to have that advice when he was proceeding with a variety of amendments before the House or a committee.

The Chairman: Ms. Bakopanos, then Mr. Hill.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): Thank you, Mr. Chairman.

I'd like to pursue some of the earlier questioning in terms of priorities and how you set priorities in terms of the items. I think there was a certain nuance made by Mr. Chuck Strahl in terms of how those priorities are in fact set.

I would like you to tell me, please, how you in fact, if you had five or six items in the office, would then decide which items would be a priority. Would that have to depend on the business of the House? Would it have to depend on other pieces of legislation that you know are going to come from government or from the opposition? Are there certain rules, certain ways in which those priorities are established?

Ms. Diane Davidson: I can only speak for how I managed the legal services branch. I can tell you that the requests for services were dealt with on a priority basis determined largely by the urgency of the matter. For instance, if there was litigation and the member only had ten days in which to file his reply, it was extremely important that we addressed it in those timeframes. There could also be consequences in terms of the prejudice the member would suffer for us not acting quickly.

I know I'm being very general, but it's a judgment call when you receive the request and you look at what is being asked of a lawyer. Each time we received a request we put our minds to it and we established whether or not we needed to deal with it before another one. It had nothing to do with political considerations.

Ms. Eleni Bakopanos: Yes, that's the point.

Ms. Diane Davidson: We were always looking at the request on a purely impartial, objective basis in terms of the legal consequences of not proceeding with that particular request at the time.

Ms. Eleni Bakopanos: I thank you for putting that on the record, Ms. Davidson. Thank you.

The Chairman: Mr. Hill.

Mr. Jay Hill: My intervention is by way of a comment and then I'll just ask the witness for her opinion on it.

My understanding is that what we're faced with here is that legislative counsel have raised a spectre, if you will, that somehow the solicitor-client privilege that some members would have come to understand exists between individuals, between an individual lawyer and an individual member, has been breached, and that we should be concerned about that.

You drew the comparison, I believe, in your opening remarks, or perhaps it was in response to my colleague, Mr. Strahl, to a law office: that when an individual seeks counsel from a law office and talks to a lawyer, their understanding is not necessarily that the information they're sharing with their lawyer is going to be limited to those two individuals, but will in all likelihood be shared with others in the office, and won't go beyond there unless the individual gives their consent.

I would like to draw another comparison that I think certainly all members would understand. Every day in our offices, members of Parliament and our staff have to deal with highly sensitive, confidential information from constituents. Sometimes it might be something dealing with a particular government department that involves the constituent releasing very personal information—maybe dealing with Revenue Canada, for example.

• 1210

We have to be able to give those constituents the assurance that information will be contained within our office. Obviously we cannot do our job unless that information is shared between our constituency assistant and perhaps our legislative assistant in Ottawa. But we give that guarantee, if you will, to the constituent that when they walk into a member of Parliament's office, that information will be treated the same as if they were in a lawyer's office or a doctor's office, in the sense that we guarantee confidentiality.

If my understanding is correct in what the speaker has indicated, when it comes to legislative counsel the information we are sharing with a lawyer there might be shared among that small...my colleague called it a cluster group, but I don't remember what term they used. Mr. Blaikie used the term “team”. As long as it doesn't go outside of there, I don't see a problem with it, just as I don't see a problem with me, as the member of Parliament, sharing information with my staff when we're trying to assist a constituent.

That's the comparison and similarity I'm trying to draw. I wonder if you would care to comment on that. Do you see a problem? That's my understanding of the nuts and bolts of where we're at with this thing.

Ms. Diane Davidson: I don't know if I'll be able to answer your question, because there are a lot of issues in your question and a lot of interesting aspects.

When you raise the issue of confidentiality in a member's office and the representations the member makes to constituents, I would not analogize that to solicitor-client confidentiality. The law protects solicitor-client confidentiality in a different way—there is a lot of case law—and would prevent disclosure of that information in a variety of settings. I would consider the confidentiality a member offers his constituent to be more resulting from the fiduciary relationship the member has with constituents. I certainly think that is important to clarify.

With respect to the information being provided to legislative counsel that I assume you would characterize as solicitor-client privilege, the disclosure of that information would be subject to the rules established by courts regarding non-disclosure of solicitor-client privilege. For instance, under the Access to Information Act, you have an exemption from disclosure of solicitor-client information. So that's an important consideration to have in mind. For instance, under the Access to Information Act, other confidential information will be disclosed, but that would not carry the same protection.

So the legal protection tied to solicitor-client privilege or the privilege between a doctor and a patient is well defined in law. That's one thing the committee will have to consider carefully before deciding it no longer exists, for instance, or deciding to waive it for legislative services, for instance.

It's extremely important that the committee clearly assess the consequences of waiving the solicitor-client privilege, which can in many ways supplement parliamentary privilege. The courts may not recognize that in a particular case, and may decide the information is otherwise protected under solicitor-client privilege. This may come to assist the members in certain circumstances. I don't have any examples to give, but it's an important consideration when you draft your report.

The Chairman: Okay. I have a couple of questions.

I thank you very much for the detail we've been able to get into here on this issue. It will be very helpful to us in preparing our report.

You described earlier the solicitor-client relationship paradigm or concept as being part of the solicitor-client relationship. A person who is a lawyer would be virtually obligated, in acting as a lawyer, to accord that privilege to a person who would be a client.

Of course there are many different factual circumstances out there. You've made reference to that. Every case would be measured on its own merits.

• 1215

You have accepted, I think, that a person employed as a lawyer and doing legislative drafting for an MP is acting in the role of a lawyer and would normally be expected to accord solicitor-client privilege in his or her relationship with the MP.

Just to upset that paradigm a little, I am an MP and I am a lawyer. If a constituent of mine were to approach me and ask me for advice—not legal advice, but just advice—knowing that I was a lawyer and an MP, would I have any obligation to accord to that constituent a solicitor-client privilege? I am a lawyer; I have not ceased to be a lawyer. In my relationships with people in giving advice, I usually load it up and give them the best I can offer.

I'll ask you this question. Does a person who is a lawyer but was hired as a legislative drafter—whose job description is that of a legislative drafter, and I know I'm speaking hypothetically—have the obligation to accord solicitor-client privilege to the party who comes seeking legislative drafting, which in this case is an MP?

Ms. Diane Davidson: I think it is important to appreciate that legislative drafting is considered to be part of the legal profession. It's a legal function; it's not a separate function. To use your analogy, when you're acting as a member and you're acting as a lawyer, those are two separate functions. But the lawyers doing legislative drafting are expected to be lawyers, members of the bar, and that's one of their conditions of employment. In the course of providing drafting services, they give legal advice throughout the process. They have to look at whether or not a particular initiative offends the charter, the Constitution. It has to be read within the body of law. In effect, a legal drafter, in the preparation of a bill, gives legal advice contained in the provision he's drafting for the member.

So I would have a lot of difficulty making the distinction you're trying to draw between a lawyer and a legislative drafter doing something that would not be characterized as part of the legal profession.

The Chairman: Okay. From your point of view, then, a decision by the employer, which in this case is the House, to attempt to purge these relationships of their solicitor-client element would be jarring to a professional lawyer who was in that capacity. That lawyer would feel a professional burden to accord solicitor-client privilege.

Ms. Diane Davidson: I would say it would apply automatically, and that approach or interpretation would be consistent with how legislative drafting is being performed in the public sector at large.

For instance, in the federal government, in the particular area where I am working, there is solicitor-client information being prepared in the course of drafting legislation or regulation. To not consider that legislative drafting being performed for members of Parliament would fall within the same general requirements would seem unusual, in light of the general practice of legislative drafting that exists elsewhere.

The Chairman: Okay.

• 1220

This is my last question. In the context where you have non-lawyers and lawyers operating in the same office, is it your view...? I know you touched on this earlier, but I don't know if we have a complete answer yet. And it's not your job to give the complete answer; we're still looking here. But would it be your view that the confidentiality accorded by the legislative clerks and the solicitor-client privilege and confidentiality accorded by the lawyers in the same office would be co-extensive, for all practical purposes?

Ms. Diane Davidson: If I could express an opinion, I would think the confidentiality the clerks would be offering in that sort of setting would fall under the umbrella of solicitor-client privilege and confidentiality.

The Chairman: Okay. That gets me to the tail end of this.

If there were breaches of the confidentiality, and let's just say they're unintended—they could be intentional, but let's say they were to be what I would call a breach, or a leak, to use a word often used, or sometimes used, around here—in a way that constituted, arguably, at least prima facie, a breach of that relationship, who or what would carry the responsibility? Would it be the overall office? Would it be the lawyer? Would it be the clerk?

Someone has to carry the can on this. If there is a confidentiality of two different types operating in the same office in tandem, and there is a breach, who has to be responsible for it, administratively or professionally? Or are we still looking for that answer?

Ms. Diane Davidson: I would have to give you a lawyer's answer. It would depend on the facts of the particular situation. I would hesitate to say who would bear the consequences of a breach of solicitor-client privilege.

You still seem to be making a distinction that I'm not making in my own mind between confidentiality and solicitor-client privilege.

I would say there could be different breaches, however. There could be a breach of the oath that is taken under the Parliament of Canada Act. There could be a parliamentary breach that would be reviewed under parliamentary privilege. It could also involve a breach of solicitor-client privilege. So there could be many consequences. It would depend on the circumstances of the particular case before the member.

The Chairman: You work at the justice department now. Are you familiar enough with what they're doing over there...? You have an office with a lawyer, other lawyers, and people who are legally trained but are not lawyers. You have an administrative component. If there's a leak from a government department, should we regard that as a reasonable analogy, a reasonable comparison?

Ms. Diane Davidson: I would have to say that it would depend again on the facts of a particular situation. It could mean personal consequences for the lawyer. It could mean other consequences for the branch. I couldn't answer in a very....

The Chairman: It depends on the facts of the case.

Ms. Diane Davidson: Yes.

The Chairman: Okay, that's fine. Thank you.

Mr. Bergeron.

[Translation]

Mr. Stéphane Bergeron: I had some questions about an entirely different matter, but I'll get to them later. Right now, while we're still on the subject, let's assume that I contact a legislative counsel for assistance in drafting ten or so amendments. The legislative counsel performs his duties and works within a team context and under certain circumstances that we have not been able to define at this time. Suppose something happens and privileged information about these ten amendments somehow gets out. I know that I spoke to only one individual, namely the legislative counsel. Under the circumstances, regardless of the fact that there are many people working in this office, I'm likely to hold the legislative counsel responsible for the leak. Correct?

Ms. Diane Davidson: Quite possibly you may, but the issue doesn't stop there if in fact the legislative counsel is not responsible for this breach of privilege. Other office staff may in fact be responsible for violating this solicitor-client privilege.

• 1225

Mr. Stéphane Bergeron: Getting back to what you were saying earlier, Ms. Davidson, you stated that as a rule, the legislative counsel, or lawyer, is the person responsible for the process, being the first person that the client contacts. In some cases, he may be the only contact the client, or member, has. I request a number of services and the legislative counsel works with his team to carry out the request. Who am I going to blame if privilege is breached? The legislative counsel, of course. Therefore, he needs to assume responsibility for the actions of this team of workers and, eventually, bear the consequences.

Ms. Diane Davidson: Generally, that's how it works. Lawyers are responsible for administering an office that provides legal services. However, other staff members of the legal firm will also bear the consequences of an unauthorized disclosure of information.

Mr. Stéphane Bergeron: I see. Getting back to some of my original questions, you stated at the beginning of your presentation that solicitor-client privilege existed in the Senate. This institution is no so very different from the House of Commons. I fail to see how we could accept any less that what the Senate - need I remind you, an unelected body - now has in place with respect to solicitor-client privilege.

Having said this, Ms. Davidson, to your knowledge, have any other parliaments examined the issue of solicitor-client privilege? Are the provisions they have in place any different from those applied by the Senate? I won't talk about the House provisions, because everything is up in the air right now. The reason why we are examining this issue is to try and establish some clear guidelines. However, as I said, the Senate recognizes the existence of solicitor-client privilege.

Do you know of any other legislatures or parliaments that might have considered this issue or adopted a radically different position than that taken with respect to the Senate?

Ms. Diane Davidson: This brings to mind the approach advocated in Ms. MacNair's thesis. She points to the State of Colorado which, while grappling with the definition of client in a parliamentary context, determined that the institution was in effect the client and that as such, solicitor-client privilege applied. Members were legally entitled to confidentiality in their dealings with the institution. As far as we know, this is the only legislature that attempted to answer the question: "Who is the client?"

Ms. MacNair concludes, however, that the situation in Colorado is by no means perfect because the interests of the institutions are not clearly defined. Nor is it clear when these interests must take precedence over the interests of parliamentarians. Therefore, Colorado has determined that there is only one client, namely the institution. Parliamentarians are entitled to services which are not protected by confidentiality, as we generally define the term.

In my view, there are several problems with the approach adopted by Colorado and Ms. MacNair does allude to them. The fact of the matter is that the House is not the party requesting the legal drafting services of which 301 members must avail themselves. Moreover, the House cannot be accountable for everything that transpires within the context of this relationship. The solution adopted by Colorado doesn't address this problem. Most likely, the state faced a number of problems and felt the need to define the parameters of the relationship between the drafters, and legislative counsel in particular, and the parliamentary institution.

Mr. Stéphane Bergeron: Since Colorado has taken this novel approach, can I assume that generally speaking, in all existing parliaments and legislatures, it's a given that solicitor-client privilege applies, since we're talking about the relationship between a member and a lawyer?

• 1230

Ms. Diane Davidson: My feeling is that in Canada at least, as is the case in the Senate and as was the case prior to 1991, the assumption was that legislative drafters carried out their duties as if a relationship of solicitor-client privilege existed with the individual member.

One has to wonder if there are any advantages to the system adopted by Colorado. I for one see a number of disadvantages with that system, but nevertheless, I do think it has some merit.

[English]

The Chairman: Mr. Mahoney.

Mr. Steve Mahoney (Mississauga West, Lib.): Mr. Chairman, I must admit that in listening to this I find it interesting, because there are lawyers everywhere in the government, in virtually every department, doing all kinds of different jobs, advising members of Parliament, and you would have no idea that they're lawyers or not lawyers or whatever. They exist in political staff, administrative staff, ministers' offices, and MPs' offices. They're everywhere.

I never thought of my relationship to legal counsel for drafting a private member's bill or getting advice as their being my lawyer and my being their client. It would have seemed to me they're simply employees of that particular department, and as such the responsibility for confidentiality would apply when a member of Parliament asked a question.

For example, I was threatened with a lawsuit by the International Fund for Animal Welfare, and I needed to get an opinion from a legal counsel as to whether or not there were any grounds. Had I been told there were grounds, I would have then sought outside legal counsel to represent me to ensure my interests were protected.

I've never in either my time provincially or here thought of the people who are employed by the taxpayer in whatever department they're in as being obligated to me in terms of solicitor-client privileges, but rather obligated to me as one member of a greater body to treat my information as confidential until I decide to release it.

Personally, I find it puzzling that we're talking in terms of a member of Parliament being the client. I don't see us being the clients. I see the issues being totally separate, and one is of confidentiality, which I would expect from every clerk, every typist, every person who is on the payroll of every department. When a member's staff, for example, calls looking for information to put together a private member's bill or to seek out certain advice, everybody should treat those requests as confidential.

If all of a sudden we were to be in a position where as members of Parliament we had a fear that if we called and asked for information from department A, B, or C, that information was then going to be delivered to the National Post or some other reputable newspaper without our knowledge, I think that would be cause for alarm.

Maybe I'm missing something, not being a lawyer, but solicitor-client, to me, doesn't apply. I wonder if you agree.

There's a question there somewhere.

Ms. Diane Davidson: I would simply like to mention that in a government setting, for instance, solicitor-client privilege applies. The client is the crown. So lawyers working for government would consider the crown as their client. Even though they offer you services and they provide you with some information, you're not their client. Their client is the crown.

So in a parliamentary setting, I would say that since the House of Commons does not have a legal personality like the crown, but is the 301 individual MPs who have independent constitutional status, then we have to consider that perhaps the individual member is the client. He is elected independently and he will conduct his parliamentary functions independently or autonomously.

• 1235

In fact, the parliamentary setting brings us to the conclusion—or brings me to the conclusion—that the member is the client. For instance, in an employment matter, the member is the employer; it is not the House of Commons. The liability is the member's liability. In a conflict of interest situation, the same would apply.

When a member introduces legislative amendments or a private member's bill, it is the member acting in the House independently. In the government, the crown is the client, because the crown is indivisible. Even though you have different departments acting independently, they are always acting under the purview of the crown.

I know this is a complex area. I wouldn't want to lecture for too long, but you have to see the distinction between this environment, this setting, and other settings. If you assume that there was no solicitor-client relationship, this is something you should perhaps make clear to the drafters and to the lawyers so that there is no expectation that this relationship exists when you approach them for advice. Otherwise it will be assumed and automatically applied.

Members would also have to consider the consequences of being without this solicitor-client privilege protection. It is an important protection recognized by the law. Those are the considerations this committee will have to keep in mind when it prepares its report.

Mr. Steve Mahoney: So the recourse for a member to legal counsel goes beyond their employment status. If a member felt betrayed by someone in the legal department, they could in fact go to their superior and ask for an investigation. I guess they could ask for anything right up to and including dismissal, depending on the seriousness of the issue.

Notwithstanding that, what you're saying is that there's a separate track. If a member felt betrayed, they could in fact go to the law society.

Ms. Diane Davidson: That is so. The member could also rise in the House and raise a question of privilege. There are varieties of approaches the member would have at his disposal to correct the situation.

The Chairman: This has been a very interesting meeting. Ms. Davidson, your testimony and your statement are very helpful to all of us, I'm sure. I thank you for attending.

On a bit of a sidebar, we were joined today in our proceedings by three visitors who are participants in the parliamentary cooperation program. We had with us Mrs. Olivine Maynard from the British Virgin Islands legislature, Mr. Peter Sibenik from the legislature of Ontario, and Dr. Bwembia, who is from Zambia. These three individuals provide services to their respective legislatures and are visiting and hopefully learning something interesting here. We welcome them.

Colleagues, we are about to adjourn. I've taken note of Mr. Strahl's motion, which I believe he moved. I think the best thing to do is to stand it down to our subsequent meeting. We will stand advised of that. We will include it on the list of matters to be disposed of.

Our next meeting is scheduled to be a meeting on the estimates, involving the Chief Elections Officer.

We'll have to give some thought to the conclusion of our report on the issue of confidentiality. Maybe we can squeeze that into the next meeting, maybe not. We'll need some further instructions for our—

Mr. Stéphane Bergeron: Can we ask for an extension?

[Français]

The Chairman: Just to confirm for the record here, what was our deadline for that?

Some hon. members: June 1.

The Chairman: June 1.

Mr. Robertson, can you comment on what further you would need?

• 1240

Mr. James Robertson (Committee Researcher): According to our draft schedule, we had planned to have the meeting on Tuesday, May 30, to discuss the draft report. Obviously if we have a preliminary discussion, the draft will be closer to what members are looking for.

If you wish, I could prepare a draft report based on the evidence the committee has heard. That could be circulated as a draft report prior to the meeting on May 30. We could see at that point whether there is any agreement on the draft report or whether the committee wishes to seek an extension of its reporting deadline from the House.

The Chairman: Clearly, if we're going to be giving suggestions to the House, we'll have to give some focus and thought to that. We haven't reached that point yet. Your draft would be very helpful in allowing members to perhaps reach conclusions. Then, if we can see the thing with some focus, perhaps we can give good direction to the House.

If it's all right with members, we'll ask Mr. Robertson to prepare a draft, which will at least set the stage, and we'll take that up as scheduled on May 30.

Ms. Eleni Bakopanos: Will that be a confidential draft report?

The Chairman: Yes, in this case.

Why don't we check with Ms. Davidson on the relationships here? Mr. Robertson, thankfully, is not a lawyer.

Mr. James Robertson: Yes, I am.

The Chairman: Oh, I didn't know he was a lawyer. Okay, Mr. Robertson is a lawyer, so we're in good hands.

The draft, of course, will be considered as in camera. We'll continue our deliberations subject to the will of members of the committee.

There's a motion to adjourn until Thursday. Thank you.

[Translation]

We have until June 1st.