HAFF Committee Meeting

37th PARLIAMENT, 3rd SESSION

Standing Committee on Procedure and House Affairs

EVIDENCE

CONTENTS

Tuesday, April 20, 2004

Á

1105

The Chair (Mr. Peter Adams (Peterborough, Lib.))

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.)

Á

1110

The Chair

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

Á

1115

Á

1120

The Chair

Á

1125

Mr. John Reynolds (West Vancouver—Sunshine Coast, CPC)

The Chair

Mr. Derek Lee

The Chair

Hon. Roger Gallaway (Sarnia—Lambton, Lib.)

Á

1130

Mr. Derek Lee

Hon. Roger Gallaway

Mr. Derek Lee

Hon. Roger Gallaway

Mr. Derek Lee

Hon. Roger Gallaway

Mr. Derek Lee

Hon. Roger Gallaway

Mr. Derek Lee

The Chair

Mr. Derek Lee

The Chair

Mr. Derek Lee

The Chair

Hon. Roger Gallaway

The Chair

Mr. Derek Lee

The Chair

Hon. Roger Gallaway

The Chair

Mr. John O'Reilly

Hon. Roger Gallaway

Mr. Derek Lee

Hon. Roger Gallaway

Á

1135

The Chair

Mr. Derek Lee

The Chair

Mr. Michel Guimond (Beauport—Montmorency—Côte-de-Beaupré—Île-d'Orléans, BQ)

Á

1140

Mr. Derek Lee

The Chair

Hon. Elinor Caplan (Thornhill, Lib.)

Á

1145

The Chair

Mr. Derek Lee

The Chair

Hon. Elinor Caplan

The Chair

Mr. Yvon Godin (Acadie—Bathurst, NDP)

Mr. John O'Reilly

Mr. Yvon Godin

Mr. John O'Reilly

Mr. Yvon Godin

Á

1150

The Chair

Mr. Yvon Godin

The Chair

Mr. John O'Reilly

The Chair

Mr. Yvon Godin

The Chair

Mr. Derek Lee

Mr. Yvon Godin

Mr. Derek Lee

The Chair

Mr. Claude Duplain (Portneuf, Lib.)

Á

1155

The Chair

Mr. Michel Guimond

The Chair

Mr. Claude Duplain

Mr. Derek Lee

The Chair

Mr. Chuck Strahl (Fraser Valley, CPC)

The Chair

Mr. Chuck Strahl

Â

1200

The Chair

Mr. John O'Reilly

Mr. Chuck Strahl

The Chair

Mr. Derek Lee

The Chair

Mrs. Judi Longfield (Whitby—Ajax, Lib.)

Â

1205

The Chair

Mr. Derek Lee

The Chair

The Chair

Mr. William Corbett (Clerk, House of Commons)

Â

1215

Â

1220

The Chair

Mr. Chuck Strahl

Mr. William Corbett

Mr. Chuck Strahl

Mr. William Corbett

Â

1225

Mr. Chuck Strahl

Mr. William Corbett

Mr. Chuck Strahl

The Chair

Mr. Rob Walsh (Law Clerk and Parliamentary Counsel, House of Commons)

Mr. Chuck Strahl

Mr. Rob Walsh

Â

1230

The Chair

Mrs. Judi Longfield

Mr. Rob Walsh

Mrs. Judi Longfield

Mr. Rob Walsh

Mrs. Judi Longfield

Mr. William Corbett

The Chair

Mrs. Judi Longfield

Mr. William Corbett

Mrs. Judi Longfield

The Chair

Mr. William Corbett

Â

1235

The Chair

Mr. Michel Guimond

Mr. Rob Walsh

Mr. Michel Guimond

Â

1240

Major-General G. Cloutier (Sergeant-at-Arms, House of Commons)

Mr. Michel Guimond

The Chair

Mr. Michel Guimond

The Chair

Mr. William Corbett

The Chair

Mr. Claude Duplain

Â

1245

Mr. Rob Walsh

Mr. Claude Duplain

MGen G. Cloutier

Mr. William Corbett

The Chair

Mr. Yvon Godin

Â

1250

Mr. Rob Walsh

Mr. Yvon Godin

Mr. Rob Walsh

Mr. Yvon Godin

Mr. Rob Walsh

Mr. Yvon Godin

Mr. Rob Walsh

The Chair

Mr. William Corbett

Mr. Yvon Godin

Mr. William Corbett

MGen G. Cloutier

Â

1255

The Chair

Mr. Rob Walsh

The Chair

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CANADA

Standing Committee on Procedure and House Affairs

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NUMBER 014

l

3rd SESSION

l

37th PARLIAMENT

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EVIDENCE

Tuesday, April 20, 2004

[Recorded by Electronic Apparatus]

Á  (1105)  

[English]

    The Chair (Mr. Peter Adams (Peterborough, Lib.)): If we could begin, we're here pursuant to the order of reference of Thursday, March 25, 2004, a question of privilege relating to the disclosure of confidential proceedings of an Ontario Liberal caucus meeting.

    We have witnesses whom I will introduce in a moment, but as we're back after the Easter break, perhaps I could make a few comments.

    First of all, clearly, you know what our agenda is for today. It's my thought, if it's okay with you, that we're going to proceed with roughly 40 minutes or so from the witnesses, but I'm in your hands and, to some extent, I'm in the hands of the witnesses. Then we're going to proceed with roughly 40 minutes or so with Mr. Corbett, the Clerk of the House, on this same matter. He will in fact brief us on what happened, what the technicalities were about the broadcasting, and that kind of thing.

    If we could keep to that, colleagues, I would be grateful. If it is possible, in other words, if we do keep to that, I would like us to have a few minutes in camera at the end of this session to discuss this matter so that we get some idea, or you give me some idea, of where we move with it next.

    If we do not have the time for that, I would suggest that we discuss this matter in camera at the beginning of our meeting on Thursday. Is that okay? At the moment, the agenda for Thursday is our consideration of a draft letter and our draft report on the democratic action plan. It also would be in camera, so it would fit and we could consider this matter then.

    Are you comfortable with that, colleagues? I see that you are, yes.

    I would now like to welcome our colleagues, John O'Reilly, who's the member for Haliburton–Victoria–Brock, which is a very small region very close to Peterborough, and Derek Lee, who's the member for Scarborough–Rouge River. We do welcome you both.

    I understand that you both have statements. Have you any sense of who should go first, colleagues?

    John, we'll begin with you, if you could give us a statement.

    Then my intention would be to go to you, Derek, and have you give us your statement. Then we would have the questions and so on. Okay?

    John O'Reilly.

    Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): Thank you very much, Mr. Chairman and colleagues.

    I don't have a large statement to make. I think all the facts are before you, that a meeting that was supposed to have been private, a caucus meeting, was reported.

    I just want to say that I'm chair of a regional caucus, the central Ontario caucus. As chair, I report to the Ontario regional caucus, and hopefully on to get the ear of the Prime Minister or the ministers. We bring forward many diverse points out of central Ontario, and sometimes the points I make as a caucus chair are not necessarily my own.

    As you know, Mr. Chair, I represent a very large riding just around Peterborough, south and east and north. In my presentation at that caucus meeting in Ontario I broached a couple of subjects, one of which, the timing of an election, certainly didn't have any confidentiality about it. It's a thought that we all have, about whether it should be in the spring or the fall or November or whatever. That is the type of item discussed by members of caucus. I mean, certainly nobody in this room knows when the election will be. We all tend to speculate on that. So I didn't consider that any serious breach.

    I did, however, mention that we need a policy around the automotive business. General Motors in Oshawa is the largest employer in my riding. I talked about auto parts suppliers in our riding, single-source suppliers, being faced with a 40% price cut, and for me, the reporting of that information was a problem.

    First of all, it was used to embarrass a leadership candidate for the Conservative Party on their auto policy and on their foreign policy. Some of the quotes that were made indicated that Magna International or one of their subsidiaries was forcing auto parts manufacturers in our riding to cut their price by 40%. That appeared in the newspaper, and that presented a problem for me. There were over 300 jobs at risk. When you use that type of information, it may be a good story, but I think it's very unfair to the people I represent. It's not hard to figure out who they are, since there's only one manufacturer of that magnitude in my riding.

    So I felt that I was put in a situation where I had jeopardized people and businesses in my riding, and jobs were at risk. I felt that the use of that information in particular was enough to cause me to question whether any member of Parliament who holds a meeting, whether it be a caucus meeting or a meeting of the Bloc or the NDP or the Conservatives or the Liberals, has some right to privacy. We have no way of stopping members of Parliament in the room from using anything we say to their advantage. That's fair game. But certainly I thought it was unfair to both the manufacturer in my riding and other members of the central Ontario caucus riding who felt that they also were in jeopardy because of that.

    So is it fair for the press to report that type of thing? I don't know. On the other part of it, dealing with election speculation, I didn't feel that was any particular violation, because I would have said it outside the same way as I did inside. But when you're dealing with policies of businesses, I feel that's a breach.

    I think the paper then basically decided to cover the way they did it by listening to the tape--however they received it, which doesn't really matter--and then calling the individual members with the tape playing in the background to confirm that they actually said something. Of course, you have no chance to deny it if your voice...or your name's been announced as the speaker. You can't deny it, or start to change your story or anything--not that I would anyway--and you're stuck with what you said.

Á  (1110)  

    So I stand behind that, but I think that particular part, jeopardizing jobs in my riding, was a serious breach.

    Thank you, Mr. Chairman.

    The Chair: Thank you, John. We appreciate it.

    Derek Lee.

    Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you, Mr. Chairman.

    I appreciate the opportunity to put on the record here and to clarify my remarks made in the House on this issue.

    Why did I intervene in the House? I was not personally affected negatively by the publication, disclosure, or eavesdropping that took place, but my colleagues were, as I understand it. The privacy that we rely on in our caucus meetings was breached, and some of my colleagues were hurt. In essence, the acts that led to the disclosure, and the publication itself, amounted to a harm or an obstruction to us as we do our work in Parliament. I'll elaborate on that a little bit later.

    The bottom line is that Parliament was offended or affected. Every one of us around this table, everyone in the House who sits as a member, has an obligation to uphold and protect the rules of the House and the privileges of the House. It is only we who can do it. What we do in that regard is for the benefit of Parliament and, therefore, the public itself.

    The backdrop here is important. I want to focus on or amplify the context, so that we can know where what happened here sits in the overall scheme of things.

    We were meeting in private, in camera. Everybody around here knew it, and all of the media knew it.

    I want to point out that every single deliberation and decision of the Supreme Court of Canada and the Federal Court of Canada is taken in private, not in public. The final decision is made known publicly. Every single deliberation and decision of our cabinet, of the Governor in Council or the executive of government, is done in private and is announced publicly. Every single deliberation and decision of the Board of Internal Economy—which some of the members here sit on—is taken in private or in camera and, where appropriate, is announced publicly.

    What I'm saying is that maybe most of the business in government, the deliberations that take place, the decisions that take place, happen in private. If privacy weren't there, the business couldn't take place. We wouldn't be able to carry on our system of governance. That is why we have in camera rules around this place. Most of what we do is public, but we have need of, and we use, in camera rules. Those rules of in camera meetings pertain to our caucus meetings, just like our committee meetings and other meetings around this place.

    We don't have to apologize to anyone for that, to the media in particular. The media require product, inventory, or news for their readers and viewers. They appear to regard what we do around here as product and inventory for their business. I don't mind that; that's their job. Yes, the fifth estate has a role to play in our society, but it does not pre-empt or have precedence over what our job is here.

    I fully accept that this is public, and that most of the things we do around here should be in public, but those that are in camera are there for a reason.

    Now, you know the facts surrounding this, but I will read to you an editorial from The Toronto Sun, which followed this, just because it's rather flagrant in its contempt, in my view—if there were a contempt. I will just read you what the editorial said. I'm excerpting it: “...the Sun'sexclusive revelations of what some of their MPs had to say about their re-election prospects in a closed-door caucus meeting last month”.

Then they quoted the Speaker: “A decision to publish information leaked from a caucus meeting is...an egregious example of a cavalier and contemptuous attitude to the privacy of all members”.

Á  (1115)  

    The Sun's remark was “Oh, please!” The Sun also says “If that makes us contemptuous, fine.” So there is no shame in the editorial room of that particular publication, nor is there any respect for our rules there.

    I want to now turn to the issue of the alleged contempt, and I want to suggest that there are two parts to it, two distinct tracks.

    The first is the breach of what we call our in camera rule. The meeting was in camera; it was a private meeting amongst the parties there. Information from that was taken and used outside the meeting by individuals who apparently knew that it was an in camera and private meeting. That is one track, the breach of our in camera rule.

    Who breached the rule? It's not 100% clear to me, except that the publications that followed that particular meeting and the breach of the in camera rule appear to show that at least the Ottawa Sun or the Sun newspaper chain were aware that they were breaching the in camera rule. But I will leave that to the committee here. The Speaker has accepted that there is a prima facie case of breach of privilege. The committee will deliberate and report back.

    The second track, the second piece of this, doesn't involve the eavesdropping or the breach of the in camera rule; it involves a breach of the Criminal Code. Subsection 193(1) of the Criminal Code reads, and I'll only use the relevant words:

Where a private communication has been intercepted by means of an electro-magnetic...device without the consent...of the originator thereof...every one who, without the express consent of the originator thereof...wilfully...discloses the private communication or any part thereof...is guilty of an indictable offence.

    Those are the relevant words of subsection 193(1). I submit to you that what happened here is fully covered, corner to corner, by the words of that section of the Criminal Code.

    I submit to the committee that a criminal offence committed in relation to a member or members of Parliament in fulfilling their responsibilities around here is, in and of itself, a contempt. The breach of the Criminal Code, in relation to members here, is by itself a contempt. In addition to being a criminal offence, it is a contempt.

    In this particular case, the criminal offence is not the eavesdropping itself; it is the publication and disclosure of the contents of the private meeting, the private communication. Please keep that distinction in mind.

    The first track was the breach of the in camera rule. The second track is the publication of the contents of the meeting in a way that is proscribed by section 193 of the Criminal Code.

    I'm putting that on the public record again, now. If the police are to read this, they will say, my goodness, we may have a prima facie Criminal Code offence here and we may have grounds to lay a charge. Maybe they will, maybe they won't, maybe somebody will actually take up that information with the police.

    I'm going to leave that here. My preference is always to deal with our parliamentary matters inside Parliament. We have sufficient power and authority to do that. We don't have to spin it off to the police or the courts. I would rather not, but that's a whole other issue.

Á  (1120)  

    This is not double jeopardy. Don't let anyone tell you it is. The law is very clear that this would not be a double jeopardy scenario, either in Parliament or outside in the criminal courts or courts of law.

    The last point to make before I sum up is that if there is a contempt here and if the contempt was perpetrated by a media participant in our parliamentary processes around here, I'm of the view that there should be consequences. I am not comfortable and I find it unacceptable to have around me media who would commit a Criminal Code offence, who would breach our parliamentary rules and flagrantly, publicly, print that in the way they have in this particular editorial that I read. I can't see how there shouldn't be consequences for media in this context, at least in the way they are present in and around Parliament.

    I believe, if there is a contempt, there should be consequences either in relation to how we operate the parliamentary press gallery, how they operate it, their privileges in and around the House. I leave that with you as an issue that we may not have looked at closely before.

    So to summarize, in my view as a parliamentarian, although I have not been personally hurt by this, there has been an obstruction. There has been a breach of an in camera rule that protects us all. There may have been a Criminal Code offence committed in the same factual scenario, and I think it is incumbent upon the House, which will act on the advice of this committee, to deal with that in an appropriate fashion both so that it doesn't happen again and so that appropriate consequences are brought to bear on any parties involved in this instance.

    Thank you.

    The Chair: Thank you very much.

    You heard me say before that we do have Mr. Corbett here afterwards, so it does affect the way we proceed.

    In this committee, for your information, we normally have five- or six-minute exchanges and we move around the table quite quickly. We can go around again if we need to, but the five or six minutes include the answers and they're on the members' time. I sort of watch the members, so if from time to time I cut you off, it's because I think the member would like to be cut off.

    The list I have is John Reynolds, Roger Gallaway, Michel Guimond, Elinor Caplan, Yvon Godin, and the chair, and then Chuck Strahl.

    John Reynolds.

Á  (1125)  

    Mr. John Reynolds (West Vancouver—Sunshine Coast, CPC): Thank you, Mr. Chairman.

    I must say right from the start, I have concerns that this is a question of privilege, something that leaked out that shouldn't have been leaked out. But I think we really have to look at this. This is our own fault. We've let something happen here. It's no different to me from one of us in a caucus meeting going out with a confidential document and leaving it lying there by mistake and somebody picking it up. I wouldn't expect a reporter to throw that in the garbage. My God, they've hit on a gold mine. Somebody gave them a piece of information; it's wonderful. I think it's more an embarrassment to those who had their stories leaked out.

    I'm listening to Derek, whom I have the greatest respect for, when he talks about obstruction and contempt and all these other words. You know, just before the break, Dennis Mills leaked Guité's testimony before it was released. It wasn't supposed to be. I think, Mr. Lee, you were at that meeting, and maybe even our chairman was there. There were no consequences to that because it wasn't embarrassing to the government; it was beneficial to the government. This was embarrassing to the government, and I feel sorry for anybody who has been embarrassed. It's too bad, but I don't think we should waste a lot of time on it. We should get Mr. Corbett here and find out how the hell the mistake happened and make sure it never happens again.

    I've been in the media business. I would have done the same thing as these media guys did. These are public airwaves inside these buildings. You might think they're not, but if I had been in my office and I had heard your comments, I would have been on the phone telling some guy, “Listen to what I just heard; this is on the air now.”

    It's too bad it happened. It shouldn't have happened. It just should not have happened. But to try to blame somebody in the media for taking a story that happens to hit out over the airwaves, you could go to the extreme.

    If the Supreme Court were sitting, discussing something, and somehow they did something wrong and it was out there on the airwaves, do you not think the media would be broadcasting it if this was something important they were discussing? Sure they would, and they wouldn't care what the results were, because it's on the public airwaves. It would have been the Supreme Court that made the mistake. If it happened to be in cabinet....

    That's why we have security. That's why we have the RCMP. That's why they take our caucus meeting rooms and scan them before we go in and check them out, so this doesn't happen. But it happened. It's our fault. I don't want to blame the one person it was. That's just too bad. It's our fault. We have to live with it.

    So I think, Mr. Chairman, from my point of view, yes, it's a question of privilege, but let's find out how it happened and let's make sure it never happens again.

    The Chair: Are there any comments? Derek or John.

    Derek Lee.

    Mr. Derek Lee: I appreciate Mr. Reynolds' perspective in relation to the Supreme Court of Canada. I wouldn't be too quick to assume that if someone flagrantly and publicly breached the secrecy of the Supreme Court deliberations that the court wouldn't resort to its contempt authority in dealing with it. It really hasn't happened, but one shouldn't assume that institutions don't seek to enforce their own sets of rules that are there for order within the institution and to protect their processes.

    If a reporter finds a piece of paper lying around, that's one thing. If it comes from an in camera meeting, that may or may not be the case. I just think the facts of this case are so flagrant and obvious, such a flaunting of our parliamentary process as took place here by the publication and subsequent coverage of it, that I just feel that for the House to do nothing is to simply walk into the future and say none of our rules really matter, you're all on your own. I'm saying that for Parliament, not because I've been hurt in any way by this.

    The Chair: Roger Gallaway, then Michel Guimond, Elinor Caplan, Yvon Godin, and the chair, and then Chuck Strahl.

    Hon. Roger Gallaway (Sarnia—Lambton, Lib.): I just want to ask Derek a few questions.

    My understanding is that caucus, firstly, is not a parliamentary proceeding. Caucus is a party proceeding, and therefore, to claim that there's a parliamentary privilege that extends into a caucus meeting is, I find, an interesting concept.

    Let me give you an example. We have all these caucuses roving around out there--for example, economic development. They have witnesses--I think they call them “guests”--who come and speak to them. So let's assume at one of these meetings a member says something that's rather unfortunate to one of these guests, and the guest says, I'm going to sue that blankety-blank for what he said about me. Do you think that member could claim parliamentary privilege?

Á  (1130)  

    Mr. Derek Lee: It depends on what kind of meeting you're talking about.

    Hon. Roger Gallaway: I'm talking about a caucus meeting.

    Mr. Derek Lee: A national caucus of one of the parties?

    Hon. Roger Gallaway: Any party.

    Mr. Derek Lee: You're talking about a caucus meeting at which the public comes in as a--

    Hon. Roger Gallaway: Yes, where they're invited in.

    Mr. Derek Lee: I'm not too sure whether the in camera vote would apply to a caucus meeting to which they invite the public, but the rules the caucus chooses to apply to its meeting are the rules that they will adopt for any one meeting.

    Hon. Roger Gallaway: All right.

    Mr. Derek Lee: To go back to your opening remark, it is my understanding--and I stand corrected if I'm wrong--that it has been clearly found by the House and through successive Speakers that caucus meetings around here are bound by and subject to the same rules that protect our committees. If I am wrong about that, I will stand corrected. I don't have a citation here, but I think a quick resort to the rule book will determine the answer to that.

    If you are correct, Mr. Gallaway, that our caucus meetings do not have the--

    The Chair: By the way, one of the rules around here is that you speak through the chair. You're chatting with each other, and I love it, but I am here.

    Mr. Derek Lee: I wouldn't want to be in contempt of the chair.

    So, Mr. Chairman, I think that question should be sorted out, and if I'm wrong about that, then I think this whole exercise becomes moot or pointless. I don't believe the Speaker would have ruled a prima facie question of privilege if the caucus meeting had not had the protection of the rules of Parliament.

    The Chair: I'm going to go to John O'Reilly, Roger, if it's okay with you, but can I just clarify that, in your mind, Derek, then, there is no difference between a committee in camera and caucus, which by definition is in camera?

    The point he was giving is that we have witnesses in camera, as well as public witnesses. So your argument really is that they're similar, at the very least, if not the same?

    Mr. Derek Lee: Yes.

    The Chair: Roger, this is the point you were trying to make, is it?

    Hon. Roger Gallaway: Yes. The point I was trying to make is that a caucus meeting is really an unknown beast to Parliament. It doesn't exist in the eyes of Parliament.

    The Chair: I was trying to clarify that point.

    Derek, your point is that you think they're at the very least similar, and that they come under the same....

    Mr. Derek Lee: For our purposes here, they're identical. If the in camera rule is applied to a caucus meeting, it has the same import and effect as an in camera rule applied to a committee or a subcommittee meeting.

    The Chair: Roger, John O'Reilly's indicating he wants to speak to your point. I'm in your hands, Roger.

    Hon. Roger Gallaway: Go ahead.

    The Chair: John O'Reilly.

    Mr. John O'Reilly: I just want to make the point, Mr. Chairman, that members of Parliament receive confidential information from people in their ridings. They bring it forward in the best possible manner. If it happens to be at a confidential caucus meeting that they bring forward information on behalf of people they represent, I think they have the right to privacy. If they don't have the right to privacy in caucus, then no member would bring anything forward that had any nature of confidentiality, because they would be in breach of the rules they come here under.

    I brought forward information that was confidential information from someone in my riding, a business. I assume—maybe wrongly, obviously—that it is privileged information and I can discuss it at a private caucus meeting.

    Hon. Roger Gallaway: I think the distinction we have to make here is that we're talking about privilege on the one hand and we're talking about privacy or confidentiality on the other hand. The two aren't necessarily the same thing.

    Is there some provision in a privacy law that applies to a caucus meeting? If it be that it is the case, then what I read in any given newspaper on Thursday indicates to me that there are a lot of people committing criminal offences, because I read stories that would certainly purport to be statements made in caucus meetings. Would those be criminal offences?

    Mr. Derek Lee: Sometimes you have a smoking gun and sometimes you haven't.

    Hon. Roger Gallaway: All right.

    The final question would be, then, if.... We don't really know what happened technically. We have some indication that somebody made a mistake and left this on broadcast mode, or whatever it is. A broadcast in the airwaves out there and the receipt of it is one thing, but to commit—I think, Mr. Lee, you talked about a “contempt of our parliamentary process”; I'm not certain it's a parliamentary process, though it certainly could be contemptuous of the caucus—a contempt requires some intention.

    There are a lot of people out there with scanners who are listening to truckers rolling up and down the highway. Those are private conversations, and they're tuning in on them. But if you receive information, as Mr. Reynolds said at the beginning, quite inadvertently and you have no intent, what is to preclude you from using that information?

Á  (1135)  

    The Chair: Make a very brief reply, Derek, please.

    Mr. Derek Lee: Private communications are protected by the Criminal Code. Private communications are protected by our parliamentary rules. You can use either set of rules. If a committee in Parliament does not use the in camera rule, it does not.

    The question of enforcing that rule is up to the group—the committee—and Parliament. I accept that this situation may be a question of whether it's a matter of privilege or not; i.e., it's a matter of the in camera rule or not. If the caucuses have the protection of Parliament and its in camera rule, then I submit this is very clearly a matter of breach of privilege.

    The Chair: Monsieur Guimond, then Elinor Caplan, then Yvon Godin.

[Translation]

    Mr. Michel Guimond (Beauport—Montmorency—Côte-de-Beaupré—Île-d'Orléans, BQ): Thank you, Mr. Chair.

    The situation is serious, but I would be tempted to start on a bit of a humorous note. I read the newspaper article and I would have liked to ask Mr. O'Reilly to explain the beaver-skinning system used at a festival in his riding and to give us the names of the Liberal MPs the beavers were named after. But since we are dealing with a serious situation, I will refrain from raising that point.

    It is evident that the public is very unhappy with how the government is managing things right now, especially in the context of the sponsorship scandal.

    But, as I said, the situation is serious, and I feel that there are two competing rights in this issue. On the one hand, there is the right to privacy and confidentiality when a caucus meets, which also applies, as you rightly pointed out to Mr. O'Reilly, to caucus meetings of all parties. We have a right to expect that what is said in caucus not be transmitted outside the room.

    On the other hand, there is another right at issue here, and my question is more for Mr. Lee, who is a lawyer by training. I am sure that he was very disappointed not to be appointed minister of Justice by the Prime Minister. In any case, he has no doubt forgotten that frustration.

    I would like to come back to the right to freedom of expression on the part of the press. If I go by what my colleague, Mr. Lee, has said, that means that the press will never again be in a position to use material from so-called brown envelopes, which contain material from confidential discussions. It means that the press could never have publicized the Airbus scandal, which the Liberals were happy to see written up. Once again, I would point out that I am not a fan of former Prime Minister Mulroney, but there were brown envelopes sent in the case of the Airbus issue, and that suited you.

    Mr. Lee, I would like you to tell us quickly how you see the right of the press to freedom of expression. From what I understood, Sun Media received a cassette. It has never been proven that Sun Media orchestrated the leak, organized the taping or bribed a maintenance employee. That has never been proven. Now you want Sun Media, which received the tape, to keep it because it is confidential. However, there are all sorts of confidential discussions and private dealings between two people in various places, not only in hotel rooms, which come out in the media. As soon as something is confidential, it means that the media cannot publish it.

    I will close with another question, Mr. Chair, since you will tell me yet again that I have used up my time. If you are citing a section of the Criminal Code, have you laid a complaint with the police?

Á  (1140)  

[English]

    Mr. Derek Lee: Mr. Chairman, this witness doesn't need equal time for the preamble. I enjoyed the preamble of the member.

    In terms of the application of the Criminal Code, the members should be aware—and I'm asking him to take note of this, so he won't misunderstand—that the Criminal Code's provisions cover only sound recordings. They do not cover written material. So the analogy, suggestion, or scenario that he has put forward, Mr. Chairman, is not applicable. There is plenty of protection for people who talk and people who write things down. The Criminal Code provisions only cover sound recordings in scenarios that evoke eavesdropping.

    The provisions were put there for a purpose—to protect the privacy of people who believed they had privacy, but where sound recordings intervened and took their privacy away. They prohibit the publication or disclosure of those private communications, which is precisely what happened here.

    The members should rest assured, Mr. Chairman, that brown envelopes will continue to live; they are alive and well.

    The Chair: Elinor Caplan, Yvon Godin, then the chair.

    Elinor.

    Hon. Elinor Caplan (Thornhill, Lib.): I'm actually very sympathetic to the concern and embarrassment caused as a result of this. I don't believe there was anything malevolent in the event; I think it was a human error, as was reported. I think that if there's ever evidence to suggest that it is not human error, then appropriate action needs to be taken when you have a case where it is malevolent.

    I've always been distressed that caucus meetings are not private or confidential, and that if you don't attend the Liberal caucus meeting, you can read about it the next day in the newspaper. That's an unfortunate reality around this place. It's not just a question of brown envelopes; there are people who choose not to respect the confidentiality of the place.

    In this particular incident, I was shocked to find that there had been an informer. I don't think there has been any suggestion that there is evidence this was a deliberate attempt to target any individual in any way. Therefore, I think all we really could do as a committee, and I would suggest, is to be very clear that it is a breach of the Criminal Code for something like this to happen deliberately, that action can and will be taken by this committee should that ever occur, but that in this particular case there appears to be no evidence that's what actually occurred.

    Therefore, as unpleasant and embarrassing and difficult a situation as it is, I'm not sure there's much that really should be done at this time.

Á  (1145)  

    The Chair: Derek Lee, do you have comments? Or John O'Reilly?

    Mr. Derek Lee: I have a comment. I agree with the member, Mr. Chairman, when she suggests that if someone is committing an act they must intend to do the act and must wilfully want to do it. Essentially, we're talking about mens rea in the criminal context. I agree that it must be there, but the member has focused on the sound recording or the sound pick-up of this meeting as the essential element of the offence. I suggest to her that is not the critical element of the Criminal Code offence.

    As I outlined earlier, the essential element of the Criminal Code offence is the disclosure and publication of that, not the recording or the taking or the acquisition of the private communication. And if you're asking me if the facts look as if this particular journal wilfully published the private communication, my answer must be yes. Not only does it appear to have happened, they have themselves, in their own editorial, stated that they wilfully published the private communication obtained through an electro-magnetic device.

    So from my point of view, that's done. That's what we should be focusing on.

    The Chair: Elinor Caplan.

    Hon. Elinor Caplan: I understand that, and I understand the distinction. The concern I have is that whatever format the private communication has taken in the past, it puts that communication on the front page of the newspaper. While it may be different technically, because this was a recording, the reality is that the privacy and confidentiality of caucus meetings is not something that has been strictly observed.

    The Chair: We are getting very close to the deadline I imposed before.

    Next are Yvon Godin, Claude Duplain, Chuck Strahl, and Judi Longfield. I'd be grateful folks--we're going to hear from the clerk, and we have another 45 minutes--if we could move it along a little bit.

    Yvon.

[Translation]

    Mr. Yvon Godin (Acadie—Bathurst, NDP): Thank you, Mr. Chair. I have a number of questions, but I would first like to ask Mr. O'Reilly something. At your caucus meeting, did you say at some point that the meeting was in camera?

[English]

    Mr. John O'Reilly: All caucus meetings are in camera.

[Translation]

    Mr. Yvon Godin: Fine. Was the meeting held here in the Parliament buildings?

    Mr. John O'Reilly: Yes.

    Mr. Yvon Godin: I just want to tell you a little story, since this happened to us as well. The meeting started at 9 o'clock, and we noticed around 10 o'clock that with today's technology, the meeting was public. We quickly asked the parliamentary employees if it was possible to take the cassette and destroy it. I can tell you that we had immediate cooperation from the parliamentary staff. We never heard anything further about it. We wondered whether we were going to see it in the papers the next day, but we did not. So what we had requested was done.

    We may be talking about an audio cassette here, but I think that there are also written transcriptions. There are all sorts of things that happen when a meeting is public, as this one is, and we have wonderful technology around us. It is easy to blame people, but if the caucus chair or the committee chair tells us that the meeting is going to be in camera, the first thing that Mr. Adams does is to check whether we are in camera or not. But if it shows that our meeting is public, we are then... I agree with Mr. Guimond that if someone provides a document or something when the meeting is open, you look for it. But here, given the technology that is available, the first thing to do if you really want the meeting to be in camera is to check that it is in camera.

    So I would like to know whether you checked. Did the system not work properly? Did someone...?

Á  (1150)  

[English]

    The Chair: Yvon Godin.

[Translation]

    Mr. Yvon Godin: No. It does not always indicate "in camera." In our case, the sign indicated that the meeting was public and someone had forgotten to change it. In my opinion, the committee might like to focus instead on the fact that the system did not work properly and see how the problem can be fixed. If the sign indicated that the meeting was "in camera" and the system did not work that way, then we should not be blaming journalists and talking about freedom of expression: that is the last thing that we want to see here in Canada. The system needs to be checked to make sure that if the meeting is supposed to be in camera, it is in fact in camera.

    So is it possible to go back to find out whether requests were made to Parliament, to the people in charge of setting up the room and the technicians looking after the system, to see whether it was in camera or not, or whether a gremlin came in the night and changed the system in order to play havoc with the liberals, or what?

[English]

    The Chair: Bearing in mind the technical side of it, the clerk and his officials are going to deal with it immediately following your presentations here.

    John O'Reilly.

    Mr. John O'Reilly: It's very easy for this equipment to be left on. The operator switches the microphones off and on. If they leave the computer on as though the meeting is being broadcast and someone else comes in to use this room, it could be taped. That happened to me three weeks ago when I made a presentation to a group. I asked to make a presentation to them in a room similar to this in West Block, and the thing was running across saying it was a public meeting. I asked security to shut it off. So that happens.

    I believed the caucus meeting to be private, or I wouldn't have named certain names. I'm not embarrassed about the Dorset Festival. They're going to need parking for buses next year just for the animal rights groups, and I'm sure my friend will come up and have a moose tongue, or whatever they call them, instead of a beaver tail that they serve here. That didn't hurt them at all, and that's fine. But I felt I put the business I talked about in a situation of jeopardy, which I wouldn't ordinarily do.

    As a member of Parliament, you feel that you have some confidential access to discuss items with other members of Parliament and how to deal with them. The broadcasting of it is not a crime; the receiving of it is not a crime; but the use of it is, in my mind.

    The Chair: Yvon Godin.

[Translation]

    Mr. Yvon Godin: I remembered earlier that this should be a question of privilege. Moreover, if a political party has a meeting in Vancouver and that something leaks from that meeting, it will be protected in the same way as the proceedings of a committee that decides to sit in camera while doing hearings across the country. I think that there is a difference between the two. Do you see the difference between a political party and, as Mr. Gallaway was saying, the responsibility that parliamentarians have in carrying out their parliamentary duties? Those are two different things. This meeting was in Ottawa, on Parliament Hill, but it could have been in Montreal, Vancouver, Toronto or Fredericton. Do you see a difference between the two, or are you focusing on the fact that it was here?

[English]

    The Chair: Colleagues, be very brief.

    Derek Lee.

    Mr. Derek Lee: There is no freedom to publish a sound-recorded private conversation under our rules, law, and Constitution. It is explicitly prohibited by the Criminal Code under section 193. So there is no freedom of expression there; it is prohibited.

    Secondly, I rhetorically ask members, or even Monsieur Godin, what would Monsieur Godin's chair at the NDP caucus do if a print or electronic journalist forced their way in, just walked into their caucus meeting and said, I'm here, I'm staying, there's no in camera rule; I'm staying and I will record whatever I want, because this is public and the in camera rule doesn't mean anything?

    Mr. Yvon Godin: We'd stop the meeting.

    Mr. Derek Lee: Yes, and then we'd get a lot of work done around here, wouldn't we?

    Thank you, Mr. Chairman.

    The Chair: Claude Duplain, and then Chuck Strahl.

[Translation]

    Mr. Claude Duplain (Portneuf, Lib.): Thank you, Mr. Chairman.

    First, I would like to set the record straight. Earlier, Mr. Guimond made a brief reference to the sponsorship scandal and seemed to say that things had been managed badly. I just like to remind the honourable member that the Prime Minister took three key initiatives with respect with the sponsorship scandal: he referred the matter to the Public Accounts Committee, he set up the commission of inquiry and he cancelled the sponsorship program. I think that is good management. I would also point out to him that at the moment the Public Accounts Committee, which is chaired by the opposition, may be somewhat off track, and if we are talking about bad management, that is perhaps where we should be looking. I do not know, but at the moment, that is what—

Á  (1155)  

[English]

    The Chair: A point of order.

[Translation]

    Mr. Michel Guimond: A point of order, Mr. Chairman. I would just like to tell my colleague Mr. Duplain that he's clearly not read the article. Had he done so, he would know the context surrounding Mr. O'Reilly's comments to the effect that the election should not be called, because they would all lose their seats because of the sponsorship scandal. Those were not my words.

[English]

    The Chair: That's not a point of order.

    Claude Duplain.

[Translation]

    Mr. Claude Duplain: I will be very brief, because Mr. Gallaway and Mr. Godin asked exactly the same question I wanted to ask. I think confidentiality is important, but I would like one clarification. As regards recorded conversations, how do you think people can determine whether they were from an in-camera meeting or a public meeting? Since most of what we do here is public, if these comments were recorded on the FM band, as may have happened in this case, I would like to know how a newspaper could determine whether the conversations were made in public or in private. I would not want the committee to get into matters that are difficult to—

[English]

    Mr. Derek Lee: That is a good question. Each case will be based on its own facts. Parties involved in breaching rules either do it in ignorance or because they know they're doing it.

    In this particular case, it appears that the eventual publication of this material was done knowingly, because in the editorial just below what I quoted before, they actually commented disrespectfully on our Speaker's ruling. They said, “Oh, please!” in a way we could probably never get away with here, in commenting negatively on a Speaker's ruling like that. But they added, “Just what did this precious private meeting entail?” So it appears that the journal knew it was private, that it was in camera. So the question, “What if they didn't know?” doesn't necessarily come up here.

    I would accept that if someone didn't know that the conversation material they had was private. Then there would not be any liability, fault, or blame.

[Translation]

    The Chair: Is that okay, Claude?

[English]

    Chuck Strahl is next, and then Judi Longfield, briefly.

    Mr. Chuck Strahl (Fraser Valley, CPC): There are just two or three things I wanted to get on the record. One is that it does seem, in the Speaker's ruling, that he says a Criminal Code offence may have been committed but it's not for the Speaker to determine, and you can take that up elsewhere.

    If someone thinks there's been a Criminal Code violation, I think they should go to the RCMP and--

    The Chair: By the way, technically I could have ruled on that, but I thought it was more appropriate that we heard the whole thing.

    Mr. Chuck Strahl: Yes, and I just want to make that point, that if someone is sure there has been a Criminal Code violation, they should go to the cops and pursue it.

    Second, I think the problem for many of us in this thing right now is that there's an inconsistency.

    For example, Mr. Lee, you said that for the purposes of confidentiality, the words “caucus meeting” and “in camera committee meeting” are synonymous. That's what you said. Actually, you used the word “identical”. But if you put the word....

    In the Speaker's ruling, for example, if you take out “caucus meeting” and replace it with “in camera committee meeting”, it would say:

The decision to publish information leaked from [an in camera committee] meeting is, in my view, an egregious example of a cavalier and contemptuous attitude of the privacy of all members and that privacy is something upon which all members depend to do their work. It is a situation...that cannot go unanswered.

    And yet, when Mr. Guité's testimony from an in camera meeting was flagrantly given to the media by Mr. Mills, and at that committee meeting it was said “This is an affront to us, it's an in camera meeting”--identical to the situation you're...for a question of privilege, the committee voted, no big deal, we won't even report it to the House and we won't deal with it. And you were even there.

    So it seems to me that the problem here is that when it's embarrassing to the government, it's a bad thing, but when it's just somebody advancing their cause, too bad, the rest of us have to pound sand, because you can outvote us on all the committees.

    In fact, there's another inconsistency. At the committee meeting, you can't even go to the House and tell the Speaker that there's been an “egregious example of a cavalier and contemptuous attitude” without the permission of the committee. Yet the Liberals won't give you permission to go to the House.

    So it seems to me--and this is why you're not getting a lot of sympathy from me, Mr. Lee--that when it's good for the government, it's “Oh, well.” When it looks bad on the government, it's contemptuous, egregious, and possibly criminal. Given your earlier comments that they're identical for questions of privilege purposes, I find it--and I'll be charitable here--inconsistent, and perhaps even hypocritical.

  (1200)  

    The Chair: John O'Reilly, then Derek Lee.

    Mr. John O'Reilly: I want to speak on Mr. Strahl's point, Mr. Chairman, that we go to the police.

    When something happens in this precinct, on the Hill, in the rooms we use as members of Parliament every day, that we think is private, we go to the Speaker, who is responsible for the running of the Hill. That's why I went to the Speaker. Who would you go to beyond that? That's my question. You'd have to go to the prosecutor in Ottawa.

    I think this is an internal matter. It's on the Hill. It happened in this precinct. That's why we wouldn't go to the police.

    Mr. Chuck Strahl: Excuse me, Mr. Chairman, but according to the Speaker, an offence under the Criminal Code, if it has been committed, has to be pursued elsewhere.

    I'm actually referring to Mr. Lee's comments. He dwelled on the mechanical reproduction of sound and all that stuff, and it's an obvious Criminal Code violation, etc. Well, if it is, then go to the cops and let's have at 'er. But I don't really think it is.

    This is a political drama playing out here. It's embarrassing, so people are fighting back. But the reason it went to the Speaker and the other one from in camera did not is that one was embarrassing and one was not. That's the only difference, and that's why the Speaker says to pursue it elsewhere if it's criminal. That's what he says.

    The Chair: If I had been strict, as soon as we got on the Criminal Code stuff I could have ruled, look, that's outside the jurisdiction and we should leave it. I didn't want to do this--I think we should air this, as we're doing now--but I don't want us to spend lots and lots of time on the Criminal Code. I seriously don't. The committee itself afterwards has to consider it and decide what we're going to do, but it's outside of what we're doing here.

    Derek Lee, in response to Chuck Strahl.

    Mr. Derek Lee: I'm glad that Mr. Strahl gave all of his remarks through the chair. It's so helpful to me, as a witness.

    The point to be made, Mr. Chairman, through you to Mr. Strahl, is that the situation involving Mr. Guité was actually dealt with. It was adverted to and dealt with by the committee, and the Speaker will take direction from the committee. This particular matter arose not out of a committee meeting but out of a caucus meeting. The caucuses don't report to the House, so the matter was taken to the Speaker, the Speaker has referred it to this committee, and this committee will dealt with it.

    In terms of the facts, I am not inviting the committee to go to the police on the Criminal Code matter. I'm inviting the committee to accept that actions that constitute an offence under the Criminal Code surely must also constitute an obstruction to us here as a separate template, as a separate factual framework, that might constitute a breach of our privileges. I'm simply inviting the committee to see that.

    I don't carry a particular hatchet here in any way. When this committee is over, I will go back to my other parliamentary business. It is members around this table who will have to deal with our collective responsibility and perspective on the issue of privilege. I'm happy that you simply deal with it in whatever way you see it, and that would be the end of it.

    The Chair: Judi Longfield, briefly, please.

    Mrs. Judi Longfield (Whitby—Ajax, Lib.): I would agree with those who say there is not a whole lot of difference between someone mouthing off after a committee meeting, a caucus meeting, or whatever.... I think they're violating all our privileges and I think they're overstepping their bounds.

    In this particular case, I think it's up to caucus and the committee to deal with people who speak outside. I'm a member of caucus. If I find out who is leaking it, that's something I'll have to deal with, take up with my own caucus, and we'll censure accordingly. I don't think that's the issue. I think they are exactly the same.

    I think this goes beyond that. I think it's a Criminal Code offence, the fact that this was a sound recording. No one in the media is suggesting that they thought this was an open meeting and that it was fair game. They had a piece of tape that they knew was from a caucus meeting. They know that the caucus meetings are confidential, because they're never invited, and they watch people, even staff, shunned from the door. They're well aware that these are in camera meetings.

    I'd like to know from Mr. Lee, what does he suggest this committee do in terms of my view that there was a Criminal Code offence?

    You're not suggesting that the committee lay a charge, but it's open for someone to lay a charge. How do you then relate that to a violation of our privileges?

  (1205)  

    The Chair: Briefly.

    Mr. Derek Lee: I think if the committee concludes that, from its point of view, the facts that would constitute a criminal offence are shown here, they should invite the party that's alleged to have done this to account and give the party privilege the protection here—I refer to it as the in camera protection of the House—so that the evidence they may provide in their answers cannot be used in a criminal court. Allow them to explain it, if necessary apologize, and deal with it, send it back to the House in some manner where the matter is concluded.

    I'm not necessarily suggesting that the committee should be looking for blood, but there's enough information here that has allowed me to conclude there is a problem that should be resolved. The more expeditiously it's done and the less blood on the floor, the better it is.

    The Chair: Colleagues, on behalf of the committee, I want to thank John O'Reilly, the member for Haliburton—Victoria—Brock, and Derek Lee, the member for Scarborough—Rouge River, for being here this morning. We appreciate it. You can see there is great interest in what you've had to say.

    Colleagues, in a moment, I'm going to suspend for a very short time. There's a certain irony to this, because I understand the clerk's office is monitoring this by radio. They are waiting to see when we finish and they will come down.

    If I could say this--testing, testing, testing--we are going to suspend for a few minutes until the clerk arrives.

  (1207)  

---

  (1213)  

    The Chair: Colleagues, perhaps we could begin.

    I welcome Bill Corbett, our Clerk. I think he'll introduce his colleagues in a moment. I understand you've been eavesdropping on our meeting, so you know our rules, Mr. Clerk.

    Some hon. members: Oh, oh!

    The Chair: We're in your hands. I know that you have a short statement. Perhaps you'd introduce your colleagues. I think you know that afterwards we'll go to the short exchanges.

    I repeat what I've said before, that the members can use their five or six minutes as they see fit, but these include the answers.

    Mr. Corbett, we're in your hands.

[Translation]

    Mr. William Corbett (Clerk, House of Commons): Thank you very much, Mr. Chairman.

[English]

    Thank you, Mr. Chairman.

    I'm here with Gus Cloutier, le sergent d'armes, and Rob Walsh, the law clerk.

    I have a brief statement that I'd like to make, if I may, Mr. Chairman. I'd briefly like to outline for the committee the findings of a site visit made to Room 253-D by Speaker Milliken, accompanied by the Sergeant-at-Arms; Monsieur Louis Bard, the chief information officer; and other officials.

    All audio recording and broadcasting equipment for Room 253-D is kept in a locked cabinet in a small adjoining control room. The recording and broadcast functions are controlled in a two-step process that requires access to the adjoining room, as well as the key to a locked cabinet and a separate lock to control the equipment; and activation of the broadcast option by means of a computer touch screen at the console located in the meeting room.

[Translation]

    Before a regional caucus meeting as held, two procedures are carried out: a security check and an equipment check. During the site visit, we were walked through both procedures.

    The security check process requires going to the adjoining room containing the equipment rack, unlocking the cabinet and unlocking the equipment rack into “lock-out” mode. This security check took place at 7:15 a.m. for an 8:30 a.m. meeting.

  (1215)  

[English]

    I should note at this point that at the time the incident took place, the cabinet and the control rack were accessed using the same key. We have since changed that procedure; separate keys are now required to open the cabinet and to operate the equipment rack itself. Additionally, the key to control the equipment inside the cabinet is now held exclusively by Security Services.

    Following the security check, an equipment check is carried out by technicians. This second check took place at 7:45 a.m. on the morning in question. During our site visit, staff from the information services directorate demonstrated the procedure to us, which involves going into the adjoining room, unlocking the cabinet, and using the key to place the equipment rack into lock-in mode. Placing the equipment in lock-in mode is required in order to test those systems that control the distribution of audio and video in and from the room.

    Because the meeting was not being broadcast, the touch-screen console was not checked. Normally, the console is checked by the console operator prior to a broadcast event.

    The information services directorate acknowledges that an error was indeed made in not returning the rack to lock-out mode following the equipment verification. However, the information services directorate confirms that the equipment cabinet was locked, as was the door accessing the equipment room.

[Translation]

    We are satisfied that the equipment cabinet located in the control room was not tampered with in any way on the day of the caucus meeting.

    In spite of the error that was made by leaving the equipment in “lock-in” mode, this alone could not have caused the broadcast of proceedings that occurred on February 25.

    The “lock-in” mode triggers the recording function for transcription purposes. Members will understand that on a Wednesday morning, the Information Services Director Recording Centre is not active and the only recording that was possible on February 25 was a back-up recording that is made to a hard drive, to serve as a fail-safe mechanism in the event of a failure at the recording centre.

[English]

    It must be noted that special security measures protect this backup recording and that access to it in the event of a failure is limited and controlled. No such access was used during this incident.

    In order that the proceedings on February 25 be broadcast, the broadcast mode had to be activated separately by touching an icon displayed on the computer touch screen installed at the console situated in Room 253-D itself. When this function is activated, the broadcast status is displayed on a panel mounted on the north wall of the meeting room. Members will be familiar with these panels, which are located in every meeting room used by committees.

    The activation of the broadcast mode meant that anyone with an FM receiver connected to the parliamentary network could access the proceedings in the room if their receiver were set to the frequency of that room. There are approximately 500 of these receivers on Parliament Hill. Anyone with one of the receivers in their office would have been able to listen to and tape the meeting.

    We have no way of knowing if, and if so, by whom, the touch-screen console was used to activate the broadcast mode. That could have happened anytime that morning between the time the systems were checked and the microphones activated.

  (1220)  

[Translation]

    Unlike national caucuses, where the rooms are held secured between the system check and the first juice of microphones, no such protocol is in place for regional caucuses. It is difficult to confirm the precise time the caucus meeting began since members come in and talk to each other and there is a buffet breakfast.

    The caucus Chairperson, Ms. Bulte, believes that it was about 9:05 or so when the meeting started. At that time, the participants in the room would activate the microphones to allow the interpreters to do their work. The activation of the microphones can take place either at the microphone or at the console.

    To the best of our knowledge, no House staff was involved in activating the broadcast mode. The tape made of the proceedings was not made by or disseminated by House staff. As I indicated earlier, the Recording Centre is inactive on Wednesday mornings and the hard drive back-up recording is secured under lock and key.

[English]

    I can assure the committee that this matter has been treated with the greatest seriousness by the House administration. As a result of this incident, several changes have been made to our security and information services directorate procedures. As mentioned earlier, we have moved to a controlled two-key system for gaining access to the equipment cabinet and to the equipment rack itself. As well, we are ensuring a coordinated approach between the security and equipment verifications.

    As always, the committee and members can rely on the cooperation and assistance of all House services in pursuing this matter.

    Thank you. We would be pleased, Mr. Chair, to take any questions.

    The Chair: On my list I have Chuck Strahl, Judi Longfield, Michel Guimond, Claude Duplain, Yvon Godin, and the chair.

    Chuck.

    Mr. Chuck Strahl: Thank you, Mr. Chairman.

    Thanks to all of you for coming today.

    I appreciate this report. Your conclusion was, “We have no way of knowing if, and if so, by whom, the touch-screen console was used to activate the broadcast mode.” Would it have been a deliberate act by someone, or could it have been left in that particular mode by accident?

    Mr. William Corbett: Through you, Mr. Chairman, no. It is a default of the system that it goes to a recording mode whenever it is at rest, so to speak. Whenever it's turned on for the first time, it rests in a default mode, which is transcription; in other words, going to the recording centre. For it to go to broadcast, there has to be human intervention of some kind or another.

    Mr. Chuck Strahl: You say you have no way of knowing if and by whom the touch-screen console was used. You're saying it must have been used, then. Or could it just have been that way? That's what I'm trying to get at. Did somebody have to come in with malevolence and push the button, or was it just somebody--check one, check two--who walked out of the room not any the wiser, and it was just a mistake that was made?

    Mr. William Corbett: It's a matter of speculation that we don't have accurate answers to, but it could have been someone dusting the console. We're not certain of this, Mr. Strahl. We know it went to the broadcast mode somehow, but we don't know that this was the only source of the leak from that room. It could have been some other means. That's the only part we have investigated.

  (1225)  

    Mr. Chuck Strahl: What other means could there be? Are you thinking of a tape recorder in the room? Or are you convinced it was broadcast and recorded on one of the 500 available receivers?

    Mr. William Corbett: If, indeed the button were activated on the console, it would go out to all 500 receivers. Whether they're turned on or not, receiving, is a matter we can't speculate about.

    Mr. Chuck Strahl: Okay. Well, it seems to me that's the mystery. But I don't think it's answerable, either.

    I wonder if, through the chair, I can ask Mr. Walsh, as the law clerk, about the difference between caucus meetings and in camera committee meetings. We heard earlier testimony that they're identical for the purposes of privilege or for confidentiality. Yet in my hazy days as a past House leader, I can't remember any standing orders that define “caucus meetings”, “party meetings”, “regional meetings”, or anything else giving them any kind of privilege here.

    I wonder if the clerk could help us understand whether an in camera standing committee meeting has the same status as a caucus meeting, in his opinion, for confidentiality before the House.

    The Chair: Bob Walsh.

    Mr. Rob Walsh (Law Clerk and Parliamentary Counsel, House of Commons): Thank you, Mr. Chairman.

    We've had some discussions amongst ourselves on this very question, as you might expect, as to what the status, legal or otherwise, of a caucus meeting is. The issue I think we are agreed on is whether a caucus meeting falls within the meaning of “parliamentary proceeding”.

    Generally speaking, the law of parliamentary privilege applies to parliamentary proceedings. In addition to parliamentary proceedings, it applies for other purposes to the parliamentary precinct in respect of matters that may or may not constitute a parliamentary proceeding.

    But going to the caucus, which is a meeting--it's in the nature of a proceeding--is it a parliamentary proceeding, as opposed to just a meeting? Any number of MPs choosing to sit down and talk within the parliamentary precinct wouldn't be a parliamentary proceeding as such--just because the members chose to sit down somewhere in a room in the precinct and have a meeting. Yet they would enjoy the protection of privilege relative to persons from outside the precinct gaining access to that meeting or in some manner intruding upon that meeting. They're entitled to the protections of the precinct. That's not a meeting issue, that's a question of physical plant, if you like.

    But on the question of a meeting, of whether a caucus is a proceeding, my own view is that it is. I must admit there isn't a universal concurrence on this view. It doesn't have the formalities of a parliamentary proceeding in the sense of being presided over by a Speaker or having table officers who are in the employ of the Speaker and so on. But it is linked to the chamber, in my view, by virtue of the fact that the House and its proceedings are based on the practice of having recognized political parties, and there are House leaders for those parties, there are whips, there's an election of caucus chairs within the caucus, and there are provisions made for those chairs, I believe, having been recognized for administrative purposes relative to those caucuses.

    My sense of it is that in that sense, there's a link making it a proceeding. But also, the very purpose of caucus is for private discussion in preparation for parliamentary proceedings in the formal sense, in the chamber, or in committee, for that matter. So I would argue that they do constitute a parliamentary proceeding, but I appreciate the question is not free from doubt.

    Now, as to whether they enjoy some special or different status with respect to their discussions relative to privilege, that's a matter for the House to determine.

    Mr. Chuck Strahl: Just briefly on the clarification, how far down from the national caucus do you extend that privilege, then? You have national caucus. You have regional caucuses. Now you're one step away, because you don't have a chair recognized by the House anymore, there's no budget, there's nothing--you have regional chairs. Then you have economic subcommittees, then you have regional city groups, and then you have the iron caucus, and the car caucus. I just wonder how far you might extend it.

    Mr. Rob Walsh: Mr. Chair, in my view it's for the House to determine how far they wish to extend it. I'm just talking prima facie about the caucus, which represents the recognized political parties. The House could choose to recognize subgroups within them or could choose to not do so. But you're right, it's a question.

  (1230)  

    The Chair: Next is Judi Longfield, then Michel, and then Claude Duplain and Yvon Godin.

    Mrs. Judi Longfield: Thank you, Mr. Chair.

    I can understand that there will always be some difference in opinion about whether parliamentary privilege is part of a caucus meeting, but is there any doubt in anyone's mind that the meeting in question was indeed an in camera meeting, whether it be protected by parliamentary privilege or not?

    Mr. Rob Walsh: The persons who were there, from what I understand, had the understanding that it was an in camera meeting.

    Mrs. Judi Longfield: So whether or not someone stood up and said, “This is an in camera meeting”, given that there's a security check beforehand, that equipment is checked and is routinely checked, it would be fair to assume that all participants in that meeting are under the clear understanding that this is an in camera meeting.

    Mr. Rob Walsh: Yes.

    Mrs. Judi Longfield: I'm confused as to whether we actually know that there was—we're assuming there must have been—a public broadcast. There are 500 receivers. I would expect that if it went out.... I know from time to time we have someone rush in and say, “Hold it, folks; they're picking up the signal some place.” We had this occur once before when a member of caucus got a broadcast through his hearing aid—inadvertently, it was being broadcast throughout—and it was only within a matter of seconds that someone came in and said, “You know, we've had a report.”

    In this particular instance, did any one of those 500 receivers call anyone and say, “We're picking up some interesting information”? I assume some of these receivers are government-friendly; they're not all on the other side, where it's not in their best interests to shout out that we're getting some pretty interesting information.

    Mr. William Corbett: Mr. Chairman, no, to our knowledge, there was no contact from any one of the users of these 500 FM receivers to the effect that they were hearing something that perhaps they ought not to be hearing. We were never informed at the time of the event.

    The Chair: Judi Longfield.

    Mrs. Judi Longfield: I guess this makes this even more problematic in terms of.... We think the only way you could have gotten it is if someone had inadvertently done something to the console, and it would have been out in public broadcast. It appears that the only recording we know about is the one the Toronto Sun used to write its article and to play back to members of caucus, who unfortunately chose that day to express their views and concerns. Is that it?

    Mr. William Corbett: Mr. Chairman, we have based all of our investigation of this particular incident on the equipment the administration of the House provides to all the caucuses. We did not in any way try to investigate whether there could have been other sources.

    We have only distantly, uninvolved as participants in caucuses, heard of cases where BlackBerrys were present in caucus rooms, or telephones were present in caucus rooms. We have no way of verifying or investigating any of that. So when we said—and this is to the point Mr. Strahl was taking up—“if the button was activated”, we're speculating only with regard to the equipment we are responsible for. Since we have no way of verifying ourselves whether it was the use of one of the 500 FM receivers, we're simply discussing that element.

    Whether cellphones have been used, whether other devices might or might not have been used, up to and including defective hearing aids, we have no way of knowing after the fact.

    Mrs. Judi Longfield: Mr. Chair, through you, I guess that I would be less concerned if, through error, it was broadcast over 500 channels. I'm more concerned about the fact that it appears to be a single source. The Toronto Sun then used what they knew was in camera, illegally obtained recordings, and published that.

    The Chair: Yes, Mr. Corbett.

    Mr. William Corbett: What we have also tried to convey in our message here is that we did, having had to look into this, detect that there were some holes in our procedures with regard to these events. We've made an attempt to correct them.

    In terms of the replacement of these little signs, we used to have the big—what appeared to committee members as traffic lights—red, yellow, and green lights that were replaced by these signs. One of the coincidental matters is, in that particular room, when it's in a caucus function, everyone except the chair has their backs to that sign. We will take measures to ensure there are more signs so that everyone in the room can see and monitor it. It's a series of coincidences that piled up.

  (1235)  

    The Chair: It's Michel Guimond, then Claude Duplain, and then Yvon Godin.

[Translation]

    Mr. Michel Guimond: Thank you, Mr. Chairman. I have some questions for our three witnesses. I will begin with Mr. Walsh.

    Mr. Walsh, I would like your opinion on the following matter. Mr. Lee appeared before us in our review of the question of privilege raised in the House. Is there an argument that freedom of expression takes priority over the right to privacy and confidentiality or are they equivalent? We cannot start prioritizing rights. Some are guaranteed by charters, but they must, at least in my opinion, be evaluated in comparison with one another. One right does not have priority over another. Am I correct in that?

    Mr. Rob Walsh: In theory, you are right, Mr. Guimond, but the problem is to reconcile opposing rights. In this case, for example, on the one hand, there is the freedom of the press, which has to do with the dissemination of news, and on the other hand, there is the Parliament of Canada Act, which provides constitutional rights to Parliament. The Supreme Court has held that the two must be seen as equal. The fact is that there are sometimes conflicts. As a result, this does not answer your question. Which right has priority? I do not have the final answer to that question. It is a difficult issue.

    The fact remains, Mr. Guimond, that you we are talking about an act of Parliament that has an impact on parliamentary privilege, not about a matter of confidentiality. Confidentiality is a common practice within Parliament. Your task is to determine whether there has been a breach of parliamentary privilege and, if so, which privilege has been violated and how.

    I would also like to say that a few moments ago, Ms. Longfield

[English]

made reference to the tapes being illegally obtained. Well, it's not clear that these tapes by the publishers were illegally obtained, although it may be the case that they were illegally used. We have to keep in mind how this discussion, in the form of a tape, came from the floor of the room to the newspaper.

    There are distinct, different acts in this progression of events. When you're talking about privilege, often that question, in my view, is considered relative to what the privilege is and whether it was breached, as opposed to who breached it. Typically, if it gets this far, it's pretty well known who the culprit is. The only question is whether there was a breach of privilege.

    Here the problem is also a question of who. Where was the breach in this series of events? Where exactly did the breach occur? If it's an accidental bumping of a knob on a consul causing a recording, is somebody responsible in the sense of breach of privilege? Is publishing confidential information in a newspaper, the other end of the spectrum, a breach of privilege?

    That's the question the committee has to consider. There's a distinction to be made among using confidential information, obtaining it, and making it.

[Translation]

    Mr. Michel Guimond: After asking a question of our legal watchdog, I would now like to turn to the person in charge of security of people and goods in the parliamentary precinct, namely, the Sergeant-at-Arms. I would like the Major-General to explain the opinion put forward by Mr. Lee to the effect that an offence under the Criminal Code may have been committed.

    As we know, a number of sections of the Criminal Code contain the words "any person". Any person who realizes that something illegal has been done may file a complaint. As the watchdog of our integrity, did you consider filing a complaint? Was a complaint made to the police by yourself or someone else?

  (1240)  

    Major-General G. Cloutier (Sergeant-at-Arms, House of Commons): Yes, Mr. Chairman. The investigation began three days after the weekend, after we read in the newspapers what had happened. We asked the RCMP to help us, and they did. To some extent, the investigation is still continuing with respect to technical matters. They are trying to determine whether the equipment used by committees, such as these microphones, which have been in place for 28 years, should be replaced.

    There are some technical matters that are being investigated. However, in March, I asked that the security system for the Ontario caucus be raised to the level of the national caucus security system. And that was done. Since then, there has been no problem during these meetings. We are still concerned about some technical problems. We want to make sure that our equipment is in very good condition. I would even say that the time has come to change our equipment, particularly since it has been in place for 28 years. If we take depreciation into account, the House of Commons would make money by having new equipment and using it at the same time.

    Mr. Michel Guimond: I do not want to prevent my colleagues from asking questions.

    My last question is to Mr. Corbett.

    The speaker's ruling ends on quite a harsh note. He said:

The decision to publish information leaked from a caucus meeting is, in my view, an egregious example of a cavalier and contemptuous attitude to the privacy of all members and that privacy is something upon which all members depend to do their work.

    He did not use the expression "by the media", but that was implicit in the words "publish information leaked". We have to look at the words he...

[English]

    The Chair: Michel, it has to be very quick.

[Translation]

    Mr. Michel Guimond: Do you think, Mr. Corbett, that we should be rethinking all our relations with the media because of this incident?

[English]

    The Chair: Mr. Corbett, again I repeat, very briefly.

[Translation]

    Mr. William Corbett: The short answer is that we have not made a decision to rethink our relationship with the media. It is up to the committee to do that, not to the clerk or to the administration of the House of Commons.

[English]

    The Chair: It's Claude Duplain, Yvon Godin, and then the chair.

[Translation]

    Mr. Claude Duplain: Thank you, Mr. Chairman.

    Earlier, we talked about what happened, the fact that information was broadcast that had been either recorded or obtained using an FM radio, as being a criminal offence. What rule is in place to protect us about proceedings that are supposed to remain in-camera, if someone manages to get hold of a conversation from outside the room? What recourse do we have? I assume that once the material is broadcast, it becomes public. What steps should be taken by individuals who receive such information to find out whether or not it is confidential?

  (1245)  

    Mr. Rob Walsh: Mr. Chairman, in principle, criminal offences are prohibited within Parliament as they are elsewhere. There is no doubt about that. However, your question is whether or not this is a criminal offence. We must ask ourselves this question, because in my view, the publication of confidential information is not really or strictly speaking a criminal offence. However, we must determine how the information was obtained. We must determine whether Sun Media was involved in previous incidents, at the beginning of the recording of the conversations, and so on. Under the Criminal Code, a private conversation must be intercepted for there to be a criminal offence. Since I am familiar with the facts at issue here, in my opinion, they do not show that a private conversation was intercepted, in that someone would have used an electromagnetic device to intercept a private conversation between two people. We are talking about a debate in a room, and someone touched a switch by chance and all of sudden a recording was available that, by chance, ended up in the hands of the press. What are the obligations of the press regarding a document marked confidential? There are questions about committee reports marked confidential that end up in the hands of journalists. What do we do in those cases?

    I think this is a problem for the committee. The committee and the House of Commons have the right to define their privileges, of course, to deal with situations of this type. However, that is the whole question: what is the practice here regarding committee reports compared to comments during made during a caucus meeting?

    Mr. Claude Duplain: My last question is to Mr. Cloutier. You just said something that surprised me: you raised the security level for the Ontario caucus to that of the national caucus. Are you going to be doing that? You said that you were not concerned about regional caucuses. Are you going to raise the security level for all caucuses, or will this be at their request? You may have just established a precedent.

    MGen G. Cloutier: All I was trying to do following this incident was to ensure that there would not be any other problem or that the problem still remained with that room. The only way of doing that was to increase the security level to that of the national caucus. In this way, all security considerations will be covered. In other words, normally, regional caucuses do not have the same security level as the national caucuses. So, for the two or three weeks following the incident, I wanted to ensure that the incident would not reoccur.

    Mr. William Corbett: It is linked more to the room than to the type of caucus meeting.

[English]

    The Chair: Next I'll go to Yvon, and then I'll try to wind it up so we have five minutes on our own. To the witnesses, I regret this, and we can come back to it again another time. But it will be very useful for us to have five minutes so we can discuss where we will go next.

    Yvon Godin.

[Translation]

    Mr. Yvon Godin: Thank you, Mr. Chairman.

    I'm just having trouble understanding why you waited for a complaint from the Liberals before taking this so seriously. I know this was raised in the House of Commons, but I think it was last August that the same incident happened to us in room 371, where we were holding a national caucus meeting. We even had to go and see the people responsible for the recording, who were kind enough to destroy it. Nevertheless, we were televised. I was at the table, and since I am familiar with the procedure, I saw that the sign showed that the meeting was public. We stopped right away; it took some time before we could continue. So that is one point.

    I have a number of questions, but when Dennis Mills refers to Mr. Guité's statements—and it was the Conservative Party that raised this matter earlier in another meeting—it was said that it was now up to the committee to deal with Dennis Mills. We would go so far as to ask whether the journalists knew that the meeting with Mr. Guité was in-camera when they decided to talk about his comments in the newspapers? How far can this go?

  (1250)  

    Mr. Rob Walsh: It is always a legal matter.

    Mr. Yvon Godin: I would just like to add—and I will use the same arguments put forward by my colleagues—that when something hurts the Liberals, everyone seems to take the matter more seriously. In this case, how far can that go?

    With respect to caucus privilege, Mr. Walsh, I would also like to know whether we would be protected in the same way if the caucus meeting were in Vancouver, Montreal or Bathurst, New Brunswick.

    Mr. Rob Walsh: Often when we talk about privileges, we are talking about privileges that parliamentarians think they have. A caucus meeting in Vancouver that presents a problem, of course. However, the context of the events regarding Mr. Mills and Mr. Guité is that of a House of Commons' committee. I think the committee should report to the House regarding the material disclosed by Mr. Mills. There could be a question of the privilege of the House of Commons. Here, however, we are talking about a caucus meeting, and that is a different matter.

    Mr. Yvon Godin: I do not know whether you will agree with me, but let me give you the following example. Let us say that 10 individuals meet with a person at his or her home, in Peterborough, and all of a sudden, this is broadcast on the news.

    The person could say that this was an in-camera caucus meeting, but that someone disclosed the information. At the beginning of a Liberal meeting, did someone say that the meeting was going to begin and that it would in-camera? There is a difference between holding a meeting in-camera and thinking that it is in-camera.

    Mr. Rob Walsh: In my view, Mr. Chairman, holding a meeting in-camera imposes some obligations on the individuals who are present at the meeting. In that case, it is not a matter of their obligations to the people outside the meeting. That is the first principle. On the other hand, the parliamentary context places some obligations on individuals who are not taking part in the meeting.

    Finally, the fact remains that a group of members of Parliament meeting in Vancouver is a group of members of Parliament meeting in Vancouver, and that probably does not give rise to parliamentary privilege, even if the meeting is held in-camera.

    Mr. Yvon Godin: Mr. Chairman, there's a difference between a caucus meeting and a meeting of parliamentarians. As a committee, we could be on a trip to Vancouver, for example, and use our parliamentary privilege. That is the point I am making.

    Mr. Rob Walsh: That is true, but in my opinion, if a party recognized by the House holds a caucus meeting in Toronto, Montreal or Vancouver, it could be argued that this is actually a parliamentary meeting. We are talking about a group recognized by the House of Commons that is carrying its duties as an entity of Parliament. Nevertheless, the question remains, and it is a difficult one.

[English]

    The Chair: Mr. Corbett.

    Mr. William Corbett: I just have a final word, Mr. Chairman, on the difference between.... There are very, very few precedents in our past practice relating to leaks from caucuses that have been written up anywhere. But they have always been considered as privileged matters by Speakers in the past, whereas there have been many leaks from committees, and our practice there is not as clear.

    The few examples of leaks from caucuses have always been taken extremely seriously by the Speakers, and they have been taken as prima facie privilege right off the bat.

[Translation]

    Mr. Yvon Godin: Whenever any political party requests a meeting room, do they indicate on the form whether or not the meeting is to be in-camera?

    Mr. William Corbett: Yes, every time the committee makes such a recommendation.

    MGen G. Cloutier: With respect to your first question about your meeting last year, I was told that it had not been identified as a caucus meeting.

[English]

We recorded the proceeding, but it was not broadcast and it was not heard on TV.

  (1255)  

    The Chair: If I could, I'm going to draw it to a close, and I do thank you.

    I wonder, Rob Walsh—it may well be you—if you could communicate with us in some simple way about the part of the Speaker's ruling that has to do with the possible Criminal Code stuff. It goes on to say it's something “members may wish to pursue elsewhere”. It might be useful to us if you could provide any advice you could give on how we, as a committee, or other members might pursue it.

    Mr. Rob Walsh: I have given to the clerk a one-page document, in both languages, that basically contains some notes relative to the Criminal Code aspect of it. That may answer your questions.

    The Chair: Thank you. I do appreciate it.

    Mr. Clerk and colleagues, we do appreciate the time you've taken and the care you've taken in looking into this beforehand.

    We're going to proceed now in camera for a few minutes. The usual staff are more than welcome to stay, but everyone else should leave briefly, if you would. We'd be very grateful. Perhaps we could do it quite promptly, because some of the members want to leave.

    I'm going to suspend for 30 seconds.

    [Proceedings continue in camera]