Evidence
As part of the consideration of the matters
referred to them by the House or taken up as part of the general mandate
conferred on them, committees seek information and comment from a wide variety
of sources. Briefings and background documents are routinely provided by
committee research staff and government departments. Committees also devote
considerable effort to gathering the views of those knowledgeable about or
directly concerned by the issue before them. This may range from a relatively
small group of technical experts to the Canadian public at
large.
Information and comment are generally
gathered in two ways: by the direct testimony of witnesses and by the submission
of written briefs. The power to send for persons and papers, which is accorded
to committees, [422]
includes not only the power to invite the appearance of witnesses and the filing
of briefs, but also to order, by summons, that individuals appear or that
certain documents be filed with the committee.
At the beginning of a study, a committee
may take steps to inform the public of its activities and solicit their views.
For this purpose, the committee may make use of press releases, newspaper
advertisements, announcements placed on the CPAC television network or on the
Parliamentary Website. [423]
Witnesses
A committee may wish to hear testimony from
private individuals, representatives of groups, or public officials concerning
the matter which it is studying. Witness selection may be carried out in a
number of different ways. Normally, witnesses are proposed by individual
committee members. The committee may also invite potential witnesses to indicate
their interest in appearing. The selection is often delegated to the
Sub-committee on Procedure and Agenda, subject to ratification by the full
committee. [424]
In
addition, groups or individuals who are aware of an upcoming committee study may
indicate their interest in appearing without any solicitation on the part of the
committee. Finally, when holding meetings in the form of “town
halls”, committees often reserve a period of time when those in the
audience have the opportunity to ask questions or make brief comments without
having formally arranged for their appearance in advance.
It is the responsibility of the committee
as a whole to determine which witnesses it will hear. Practical considerations,
such as the length of time allocated for a study, limit the number of witnesses
the committee will be able to accommodate. While any member of a committee may
propose witnesses, the committee makes the final decision as to who will be
heard. Witnesses are ordinarily reimbursed for the reasonable expenses which
they have incurred in order to appear before the
committee. [425]
Summoning Witnesses
In the vast majority of cases, committees
are able to obtain the evidence they seek by inviting witnesses to appear before
them. However, some witnesses may not agree to appear willingly. When a witness
has declined an invitation to appear, a committee may issue a summons to that
witness by adopting a motion to that
effect. [426]
If a
proposed witness fails to appear when summoned, the committee may report the
fact to the House. The House then takes any action it deems
appropriate. [427]
Committees are not empowered to summon
Members of the House of Commons or Senators. Should a Member refuse to testify
when requested to do so by a committee, the committee can report this to the
House which will then decide what action, if any, is necessary. While Senators
may appear before House committees voluntarily, their attendance cannot be
compelled. If a committee wishes a formal request to be made for a Senator to
appear, it must seek the agreement of the House. The House, if it agrees with
the committee, sends a message to the Senate requesting that the Senator appear
before the committee. [428]
Swearing-in of Witnesses
Any witness appearing before a committee
may be required to take an oath or make a solemn
affirmation; [429]
however, under normal circumstances, witnesses are not sworn in. The decision as
to the swearing-in of witnesses is entirely at the discretion of the
committee. [430]
A
witness who refuses to be sworn in might face a charge of
contempt. [431]
Likewise, the refusal to answer questions or failure to reply truthfully may
give rise to a charge of contempt of the House, whether the witness has been
sworn in or not. [432]
In addition, witnesses who lie under oath may be charged with
perjury. [433]
Testimony
Witnesses appearing before committees are
usually asked to make a brief opening statement, summarizing their views or the
views of the organization they represent, on the subject of the
committee’s inquiry. Following this opening statement, there is a period
for questioning. [434]
Questions may be asked by any member of the committee; the Chair may, on
occasion, also participate in the questioning of
witnesses. [435]
Other
Members of the House in attendance at committee meetings may also be permitted
to pose
questions. [436]
This
depends, in part, on the amount of time the committee has accorded to dealing
with each witness and the number of committee members who wish to ask questions.
Committee members are usually given priority in the questioning of
witnesses.
Witnesses appearing before committees enjoy
the same freedom of speech and protection from arrest and molestation as do
Members of
Parliament. [437]
At
the committee’s discretion, witnesses may be allowed to testify in
camera when dealing with confidential matters of state or sensitive
commercial
information. [438]
Under special circumstances, witnesses have been permitted to appear
anonymously. [439]
Tampering with a witness or in any way attempting to deter a witness from giving
evidence at a committee meeting may constitute a breach of privilege. Similarly,
any interference with or threats against witnesses who have already testified
may be treated as a breach of privilege by the
House. [440]
Witnesses giving testimony may be assisted
by counsel, although permission is seldom
sought. [441]
Counsel,
when permitted, is restricted to an advisory role and may not ask questions or
reply on the witness’ behalf.
In light of the protection afforded
witnesses by Parliament, they are expected to exercise judgement and restraint
in presenting their views to committees. Where witnesses persist in making
comments which are deemed to be inappropriate by the committee, their testimony
may be expunged from the
record. [442]
There are no specific rules governing the
nature of questions which may be put to witnesses appearing before committees,
beyond the general requirement of relevance to the issue before the
committee. [443]
Witnesses must answer all questions which the committee puts to
them. [444]
A witness
may object to a question asked by an individual committee member. However, if
the committee agrees that the question be put to the witness, he or she is
obliged to
reply. [445]
Members
have been urged to display the “appropriate courtesy and fairness”
when questioning witnesses. Nevertheless, a witness who refuses to answer
questions may be reported to the
House. [446]
Particular attention has been paid to the
questioning of public
servants. [447]
The
obligation of a witness to answer all questions put by the committee must be
balanced against the role that public servants play in providing confidential
advice to their Ministers. The role of the public servant has traditionally been
viewed in relation to the implementation and administration of government
policy, rather than the determination of what that policy should be.
Consequently, public servants have been excused from commenting on the policy
decisions made by the government. In addition, committees will ordinarily accept
the reasons that a public servant gives for declining to answer a specific
question or series of questions which involve the giving of a legal opinion, or
which may be perceived as a conflict with the witness’ responsibility to
the Minister, or which is outside of their own area of responsibility or which
might affect business
transactions. [448]
As with the House, committees respect the
sub judice convention. [449]
The
convention is applied not only in the discussions held amongst members of the
committee but also in the questioning of
witnesses. [450]
Briefs and Other Papers
Most documents which committees seek are
provided voluntarily. They include government reports, statistics,
correspondance, memoranda and agreements of various sorts, as well as briefs.
For committee purposes, a brief is any document presenting the position of an
individual, group, organization or government department with respect to a
particular issue. Ordinarily, committees are able to obtain the documents they
require for their work by simply requesting
them. [451]
Where a
committee meets with a refusal to provide a document it deems essential to its
work, the committee may pass a motion ordering its
production. [452]
If
such an order is ignored, the committee has no power to compel its production,
but may report the matter to the House and request that appropriate action be
taken. [453]
Although the House has not placed any
restrictions on the power to send for papers and records, it may not be
appropriate to insist on the production of papers in all cases. In 1991, the
Standing Committee on Privileges and Elections pointed out
that:
The House of Commons recognizes that it
should not require the production of documents in all cases; considerations of
public policy, including national security, foreign relations, and so forth,
enter into the decision as to when it is appropriate to order the production of
such documents. [454]
Where concerns about confidentiality exist,
a committee may agree to have documents tabled at an in camera meeting. [455]
Transcripts of in camera meetings and other confidential documents of
committees are to be classed as Secret Records by the National Archives for a
period of 30 years from the end of the session in which they were created. These
documents remain available to Members of the House during that
time. [456]
A document submitted to a committee becomes
the property of the committee and forms part of the committee’s records.
Government departments are required to submit documents in both official
languages when presenting them to committees. Everyone else, including Members
of the House of Commons, may submit written material in either or both official
languages. Each committee must decide whether documents submitted to it in only
one official language will be distributed to members immediately or once a
translation is
available. [457]
The right to submit a document does not, however, imply the right to have the
document considered forthwith.
On occasion, a committee will consider a
document to be of sufficient importance that it will agree to treat it either as
an “Appendix” or an “Exhibit”. An Appendix is a document
which the committee has ordered to be published appended to the Evidence
taken at a particular
meeting. [458]
An
Exhibit is any document or item classified as such by the committee and is
therefore part of the committee’s permanent
records. [459]
Exhibits are not published or distributed to members but are retained by the
clerk and are available for consultation. When a decision is made to designate a
document as an Appendix or an Exhibit, the appropriate entry is made in the
committee’s Minutes of Proceedings. Appendices and Exhibits are
used, among other purposes, for preserving parts of a presentation to a
committee that would otherwise not be included in the Evidence. For
example, copies of slides or charts used during a presentation may be preserved
as Appendices or Exhibits.
Committee Publications
Like the House, committees publish a number
of documents for the use of their members, their staff and the general
public. [460]
These
committee publications parallel, in many respects, those used by the
House. [461]
They provide a permanent record of evidence received, decisions made and the results
of studies carried out. Every committee publishes Minutes of Proceedings,
Evidence and, from time to time, reports to the House. The Minutes of
Proceedings are the official record of what the committee has done and are
prepared by the clerk of the committee and signed by him or her. The
Minutes are the equivalent of the Journals of the House. The
Evidence is the transcribed, edited and corrected record of what is said
in committee, both by committee members and by witnesses appearing before
committees. Reports to the House may be brief documents of less than a page or
they may be much larger works, printed and bound separately. All committee
publications are prepared in both official languages.
All of the documents published by
committees were formerly available in printed format. In 1994, the House began
to distribute its publications electronically. Until that time, committees
produced a document called Minutes of Proceedings and Evidence,
containing the material which is now supplied separately in two documents:
Minutes and Evidence. Reports to the House which were deemed too
short to merit separate publication were also included in the Minutes of
Proceedings and Evidence. Since September 1998, the Minutes and
Evidence, as separate documents, have been available only in electronic
format. As the House has moved to the electronic distribution of its
publications, the printing of committee documents has, for the most part, been
discontinued. They are now available in electronic format at the Parliamentary
Website, Parliamentary Internet
Parlementaire. [462]
Committees may still publish major substantive reports in printed
format. [463]
Minutes of Proceedings
Minutes of Proceedings are prepared
for each meeting of a committee by the clerk, who signs the original copy to
attest to its accuracy and authenticity. The original copy of all Minutes
is kept by the clerk of the committee and is archived along with other committee
documents at the end of each session. The Minutes record the
deliberations and decisions of the committee in a manner similar to the
Journals of the House. In addition, the Minutes of Proceedings indicate the meeting
number; [464]
the time
and place of the meeting; whether the meeting was held in public or was in
camera; who presided; which members and substitutes were present, whether
for all or only part of the meeting. Thus, for a member who attended part of a
meeting and was replaced by a substitute for the remainder of it, the
Minutes will show the member as present and show another member as being
a substitute for him or
her. [465]
The
Minutes also include the names of other Members and Senators who were in
attendance; the names of staff in attendance; the names of witnesses, if any,
including their titles and affiliated organizations; the orders of reference
that were taken up; and the time of adjournment. The Minutes may also
contain the text of rulings given by the Chair with respect to the procedural
acceptability of motions proposed during the meeting.
Evidence
The Evidence is the record of what
was said at a committee meeting, corresponding to the Debates of the
House. It records not only the remarks made by members of the committee but also
what was said by witnesses. Evidence is published only for public
meetings, or for those parts of a meeting which are held in
public. [466]
It is
prepared in a bilingual format, in a process which parallels the production of
the House Debates from the “blues”. Since it has been ruled
that the power of a committee to print also includes the power to decide against
printing if a committee finds testimony offensive, it may have it expunged from
the Evidence. [467]
Documents presented at a meeting which a
committee considers to be of sufficient importance may be appended to the
Evidence of that meeting as an Appendix or recorded in the Minutes
as an Exhibit. [468]
Reports
The observations and recommendations of
committees are made known to the House through
reports. [469]
Reports
to the House are available in electronic format and, from time to time, large
substantive reports may also be available in printed format. Reports are
numbered sequentially by each committee within a session. In addition to
observations and recommendations, reports contain a citation to the authority
under which the study was conducted, a reference to the relevant Minutes
of meetings held on the topic, and the signature of the Chair. Attached to the
report after the signature of the Chair are any opinions or recommendations
dissenting from or supplementary to the
report. [470]
Broadcasting
Committees are permitted to televise their
hearings in accordance with the provisions of the Standing
Orders, [471]
using
the facilities provided by the
House. [472]
Formerly,
a committee required special permission of the House to broadcast its
proceedings. In 1991, the procedure for obtaining consent to use House
facilities for broadcasting was formalized in the Standing Orders. A further
change to the Standing Orders in 1994 allowed committees to televise their
proceedings using House facilities, without the need to seek permission on each
occasion. [473]
Where
a committee wishes to televise using other facilities, special permission is
required. [474]
The broadcasting of committee meetings
follows guidelines established by the Standing Committee on Procedure and House
Affairs which are very similar to those used in broadcasting the proceedings in
the House. [475]
Only
the person recognized by the Chair is shown, and reaction shots are
prohibited.
The House also provides facilities for the
in-house audio broadcasting of all public committee meetings. The audio
broadcast is available to all Members in their Parliament Hill offices as well
as to the Press Gallery.