Mr. Speaker, this is perhaps by way of rebuttal or reply to the remarks of the two parliamentary days ago, just before the break. He took about an hour and a half in his remarks and I am going to be much shorter in my rebuttal, of course, and I hope colleagues will appreciate that. The issues, however, are important and potentially complex.
At the outset, some of the assertions of the do require some rebuttal, not because it is necessary to banter on about irrelevant things, but because these are words of the Minister of Justice. If some of these pronouncements were to be wrong in representing, as they do, the executive of government, they cannot be left unchallenged in the House.
First, he urged that the principles of necessity and restraint must underscore all matters of privilege, but in saying this he clearly failed to distinguish between the exercise of all powers and privileges of the House, and the raising of a question of privilege in the House. I am certain the Speaker will agree that while those principles reflect aspects of our constitutional functions here, it is not necessary for a member of the House to demonstrate them when raising a defined privilege matter here. I submit that these are diversionary and unhelpful remarks in dealing with these issues.
Second, he said repeatedly in his remarks that this was really just a matter of free speech and debate. He questioned how the expression of contrary opinion about parliamentary powers could lie in contempt of the House. Let us not be misled by this first-year law school sawhorse about free speech. Just because one has free speech, it does not give someone the right to slander another, nor does it give one the right to shout “fire” in a crowded movie theatre.
The issue I raise is not about free speech or opinion. It is about government ministers and the assistant deputy minister of the Department of Justice publicly stating that our parliamentary witnesses, whether ordinary citizens or government officials, do not have full immunity and protection through privilege when they provide evidence and documents to our committees, irrespective of what any statute or convention otherwise provides and, thereby, intimidate witnesses into false observances and obstruct us in our parliamentary inquiry functions. This is the real issue here and I will repeat it later in my remarks.
Third, in a theme that recurred throughout his remarks, the said that this was just debate about an unclear subject. He said that in administering and enforcing our privileges, we here assembled were not a court of law and that the Speaker will not decide a question of law. On these issues, he could not be more confused.
It is only among the uninformed and the negligently ignorant that the power to send for persons, papers and records would appear unclear. On a matter of the law and the exercise of our privileges and powers, including the power to send for persons, papers and records, this is the only court in the country empowered to adjudicate and act. Those powers and authorities are all part of Canada's Constitution. How desperately embarrassing it is that the could stand in this place and say these things. I want to quote his exact words:
Under the Department of Justice Act, the Attorney General of Canada is the official legal adviser of the Governor General and a legal member of the Queen's Privy Council for Canada. Officers in my department act in principle under my instruction.
There we have it. Not only does the assistant deputy minister of the Department of Justice act under the minister's instruction, her letter was not a fluke or unauthorized. The minister actually takes ownership of it. Now he says he is the official legal adviser to the Governor General. I hope the Governor General will take some advice from the House and always get a second opinion.
He says that I, in this matter, merely expressed an opinion on the scope of the powers of the House to send for persons and papers. That is untrue. I did no such thing. I had no need to describe the scope of the power. It was already written. He may question the power and its scope; I do not. I simply put that power and privilege to you, Mr. Speaker, and the House and say that it is being undermined and slandered in a way that obstructs our witnesses and our committees in our inquiries.
If we do not react and grab hold of this attack now, it will have the impact of hobbling the House in all its future work in one of its essential constitutional functions, that of inquiry and holding government to account.
Fourth, another major deficiency in the submissions of the minister when he cites examples of proceedings in this and other houses and from other observers and writers on the subject of providing disclosure is the failure to distinguish between several types of disclosure procedures, for example: there is a simple request by a member for information; there is a motion for production of papers; an order for papers consented to by a minister under a motion, and we had exactly one of those orders passed here not five minutes ago; a request by a member under the Access to Information Act; a question on the order paper; a question during oral question period; a request from a committee; an order or summons from a committee; and an order of the House.
All of those are mechanisms used by this place and our committees to obtain information, and only two of them, arguably three, the order passed on consent in the House, involve orders of committees of the House. That is the highest and most effective tool, but the others are used on a daily basis around here.
This failure to distinguish is either an attempt to muddle a muddle by throwing Jello at the wall to see if it sticks, or a lack of appreciation of the difference between all these procedures on the part of the Department of Justice. Either way, it is too bad the minister could not have been more precise. I know you, Mr. Speaker, and the Table will assess this as needed and will not be fooled.
Fifth, although the debates, writings and reports in other jurisdictions can be helpful in understanding these issues, I know from our own parliamentary history and records, to the best of my ability, including the research and publication of a book on this subject in 1999, our Parliament's authority to send for persons, papers and records has never been abridged or diminished. I challenge the minister to show where our House has done so. I ask him just exactly where and when and how the House diminished or subtracted or diluted this constitutional power and function. I ask him to please show us. I submit he has not done this at all in his speech.
The minister suggests that because the House and its committees and our members often or usually accept assertions of confidentiality as we do our work, that somehow our PPR power, our power to send for persons, papers and records, has eroded or diminished. In fact, our parliamentary law prevents just that from happening. Citations should not be necessary here, but they can be provided to the Table if required. By analogy, just because nobody has been charged with high treason under section 47 of the Criminal Code in a century, does not mean that this law has eroded or diminished in any way.
Just for the record, here are 10 commonly used categories of confidentiality claimed, used or recognized by our members in governments in Canada in which we manage in the public interest all the time: privacy; solicitor-client privilege; income tax confidentiality; cabinet confidences; Canada Evidence Act restrictions; Security of Information Act restrictions; privacy of the confessional; commercial confidentiality; crown privilege; and national security. That is just 10. There are probably others. If any of these were to obstruct our constitutional powers of inquiry, then all of them would. And if they all did, we in this place would soon, in my view, be out of business in fulfilling our constitutional role as grand inquest of the nation.
There are two or three specific statements from the minister which I believe to be in error and which are material and deserving of correction or clarification.
First, he says in his remarks that in no way was the work of the Special Committee on the Canadian Mission in Afghanistan impeded by the statements or by that letter. I submit that his position has been proven false by the evidence of a witness some days ago at that very committee.
On Wednesday, March 31, the witness, Mr. Cory Anderson, gave his testimony. It is shown in the Hansard of the Committee Evidence No. 04. I will read it. He is asked a question by one of our members, the member for Toronto Centre. I will start with his first statement, “I understand the pressures you're under, and nobody's trying to put you on the spot. I assume you have discussed your presence here and your testimony with your colleagues at the foreign affairs department...And with your superiors?...As well as with officials from the Ministry of Justice?” He answered, “I have”.
The next question was, “And what have they told you?” He answered, “They have told me that my responsibilities as a public servant are not to be admonished”. He uses the word “admonished”. The transcript may have it wrong. It may have been “diminished”. It is not clear to me. He goes on to say, “during the committee hearings. So the ability to speak frankly in a setting like this is made more difficult by interpretations by the Ministry of Justice on what actually pertains to be national security and operational imperatives”.
The next question was, “So you've been told there are certain things you can't tell us.” He answered, “I haven't been told there are certain specific things I can't tell you. What I've been told is that I as a public servant am still under the terms of any public servant, and those are defined by the Ministry of Justice, in my view, quite rigidly”.
I will not read on, but those words clearly indicate the chill factor and impact of that letter and the Ministry of Justice's position on that particular witness. No one has questioned that he is telling the truth.
This looks like obstruction. This smells like obstruction. The witness describes the chill effect of the advice he has received from the justice department. The justice department has even but its position in writing to us. This was in the letter to the law clerk, dated December 9. Talk about a smoking gun.
Second, the minister has misconstrued the work of two committees of the House for his own ends. As fate would have it, I actually sat as a member on both of those committees 19 years ago. I think I am the only member in the House who did and is still here. I cannot allow him to misconstrue the work of those committees in his words here. He has used selective quotes out of context.
The special committee on review of the CSIS act never did find that Parliament had no role in scrutinizing national security matters and in fact recommended the creation of a parliamentary committee especially for that purpose. That very committee did receive classified information as part of its work, and all of that information has been kept in confidence by the members.
In 1991 the House of Commons justice committee brought the matter discussed by the minister before the House. It involved the refusal of the Solicitor General to turn over uncensored documents to that committee. The matter was brought into the House and when the procedure and House affairs committee, to which the matter had been referred on unanimous consent, reported back to the House, fully supporting the powers of our committees, an order of the House was passed, also unanimously, ordering the full production of the documents in camera and taking note of the full committee report as well.
The reference to section 8(2)(c) of the Privacy Act could not have been the basis of the order as the minister says, because in order for that section to come into play, Parliament, we in the House, would have had to have the full power of subpoena as set out in the section in the first place.
The minister says that the House order was grounded in the authority of the Privacy Act. The Privacy Act gives no such powers to the House, as the minister suggests. The House and our committees already have them, and I am being kind when I say that this remark has the potential to mislead the House.
He says that the December 9 letter expressly acknowledges that “all witnesses who testify before parliamentary committees are immune from legal and disciplinary proceedings in respect of their testimony”. That is what he says the letter says. This is simply not true. In fact, the letter states the opposite when it says, a line or two later:
However, that does not mean automatically that government officials...are absolved from respecting duties imposed by a statute enacted by Parliament, or by requirements of the common law, such as solicitor-client privilege or Crown privilege.
This completely rebuts what the minister has suggested to the House. His assertion about the content of the letter, more than once in his remarks, is patently untrue and is an apparent attempt to whitewash the contents of that letter.
Both this House and our courts, as two branches of our constitutional democracy, have powers to bring persons and information before them to enable them in their constitutional functions. Does the minister think that if he or his department had directly called into question the power of those courts to compel persons to attend, there would not be a constitutional crisis undermining our governance and those courts? Does he think that those courts would not react to sanction him and his officials with contempt if he were to do that? Why does he think that he and his department can get away with the same thing in this place? As chief law officer of the Crown, he must know the answers, or he should go and get them quickly.
The fact that we cannot rely on the Attorney General of Canada to provide a clear and objective statement on our parliamentary law is troubling and clearly an issue for another day. We almost ask this. Which master does our attorney general serve when he speaks to the House?
The proceedings in Jamaica in 1808, just about 200 years ago, are very instructive, because an identical issue was before that House and because there were many surprising, factual similarities, including a challenge to the king. I am going to read them. I am hoping, Mr. Speaker, that you will find them of interest, and the public record will benefit. They state:
The House of Assembly, on November 1, 1808, struck a committee to inquire into a mutiny that had occurred earlier that year. On November 2, the House sent a Message to the Governor, requesting copies of all proceedings taken before the Courts-Martial and Courts of Inquiry respecting the mutiny, and the Governor, in turn, communicated the request to the Commander of the Islands' Forces, Major-General Carmichael. The Governor sent the House a copy of the Commander's response, in which the Commander indicated he did not feel authorized or justified in delivering such documents to the House, which letter was tabled on November 17. On November 22, the House sent a Message to the Governor requesting him to cause the attendance of two officers of the Islands' Forces before a committee of the House. The committee reported to the House, on November 29, that their inquiry had been frustrated due to the general order issued by Major-General Carmichael on November 25, which read:
The Major-General feels a paramount duty to apprise any officer, or other person in a military capacity, that may bellowed to appear, that he does not permit them to answer any questions to that Legislative Body of this Island...upon the subject of a late mutiny, or upon the Government and discipline of His Majesty's forces.
The House thereupon unanimously passed six resolutions:
Resolved, 1st. That this House as the representatives of the people, hath of right and ever has exercised within the Island, all the powers, privileges and immunities claimed and enjoyed by the Commons House of Parliament, within the United Kingdom of Great Britain and Ireland.
Resolved, 2nd. That it is the undoubted privilege of the House to send for all papers and records, and to order the attendance of all persons, civil and military, resident within the Island, capable of giving evidence on any subject, under investigation in the House; that to prevent the attendance of witnesses, duly summoned, or pretend to prohibit such witnesses from giving full and true answers to all questions whatever, that may be propounded for discovering the truth, are breaches of the privileges of the House.
Resolved, 3rd. That requiring the attendance of the officers, non-commissioned officers and privates of His Majesty's forces on the House, to be ordered by the Governor or Lieutenant Governor, who heretofore was commander of such forces, in place of bringing them by summons, has been matter of courtesy, in case they might, at the same time, have been ordered on other duty, and is not of right: and that the courtesy of the House has been uniformly returned by an immediate order for the attendance of all such persons, without any attempt to suppress the truth, or garble their testimony.
Resolved, 4th. That as the Grand Inquest of the country, it is the right and duty of the House to inquire into all grievances or matters which happen within the Island, dangerous to the public safety... to the end that such representations may be made to our most gracious Sovereign, or such Legislative measures adopted as shall procure redress, etc.
I skipped number five.
Resolved, 6th. That the assumption by Major-General Carmichael of a power to obstruct this House in the exercise of its rightful functions, inquiring into the causes of a mutiny which has excited the greatest alarm... by pretending to permit or prevent the attendance of witnesses, or prohibit them from answering any questions that by this House, or its Committees, may be thought necessary... is an unconstitutional attempt to deprive this House of its undoubted rights, by an arbitrary exertion of military authority, and a gross violation of the most important privileges of the House.
Following the passage of those resolutions on November 29, the House then ordered Major-General Carmichael to attend at the Bar on December 1.
The next day, November 30, Major-General Carmichael wrote to the Governor, [and essentially said, “I decline to attend. I am not going to show up. I work for His Majesty. Not coming.”]
The Governor communicated the letter to the House by Message, which was tabled. The House then adjourned. When the House reconvened on December 1, without the attendance of Major-General Carmichael, the House unanimously ordered:
That Major-General Carmichael be taken into the custody of the Sergeant-at-Arms, for a contempt of this House, in not attending at the Bar this day, to be examined touching a breach of the privileges of the House; and that Mr. Speaker do issue his warrant accordingly.
The House then passed a number of resolutions declaring certain actions of the Governor to have been breaches of the privileges of the House.
That is the Governor to be in breach of the privileges of the House.
On the same day, the House was commanded by the Governor, by Message, in the King's name, to attend upon him in the Council Chamber. The Governor then delivered a speech:
The House of Assembly having ordered the attendance of Commander of H.M. Forces at the Bar, and intending, as it appears to me, to enforce that order, a measure certainly novel, and giving rise to a question of the greatest magnitude, as it tends, in fact, to devolve the command of any British army in this Island upon that House, I feel it incumbent upon me, however I lament any interruption to that harmony subsisting between the different branches of this Legislature, to take such measures as shall bring so important a point before the highest authority, previous to any further proceedings.
In code words that means the matter was taken to the King of England.
What is interesting is this,
The Governor then prorogued the Assembly until December 27.
We are no strangers to that procedure around here.
The new session was not opened, however, until April 25, 1809 [about four months later]. In his address to the House, the Governor said:
I have it in command from His Majesty to acquaint you that he has been graciously pleased to direct a copy of the minutes of the Court-Martial to be laid before you, pursuant to your message of 2nd of November last.... And I am also to acquaint you that the officers whose attendance you requested me to procure, by your message of the 22nd of November last, will be directed to attend you, without being subjected to the restrictions contained in Major-General Carmichael's order of the 25th of November last....
The House, however, was not satisfied. Following the reading of certain Journal entries in respect of Major-General Carmichael, the House ordered:
That Mr. Speaker, pro tempore, do issue his Warrant for taking into custody Major-General Carmichael, who was ordered into custody during the last Session on a Resolution of the House, that he had violated its privileges, and for a contempt of the House in not attending on Mr. Speaker's Summons, to be examined touching the said breaches of privilege.
On April 26, [a day later, following, I guess, a throne speech something like we have here,] Major General Carmichael was brought before the Bar of the House in the custody of the Serjeant-at-Arms. The Speaker invited him to make a statement concerning his breaches of the privileges of the House. Following Major-General Carmichael's statement, the House discharged him.
The next day, April 27, [the House still not satisfied] the House passed an Address to the Governor in respect of the King's order to Major-General Carmichael to attend the House. The House rejected the implied necessity of the King's order, and again reasserted the House's power to compel the attendance of witnesses under its own authority. The address read [in part]:
Every right and privilege exercised by the Commons House of Parliament within the United Kingdom of Great Britain and Ireland, being inherent in the representatives of the people of this Island, met in General Assembly, we cannot receive as a favour, depending on the direction of His Majesty's Government, the attendance of witnesses required by the House; nor can we recognize its authority to remove the unconstitutional restrictions attempted to be imposed by Major-General Carmichael's order of the 25th of November last, which supposes the power of continuing such restrictions, or renewing them, when deemed expedient.
They rejected any authority in the King to constrain the House's witnesses.
Mr. Speaker, Parliament's role and powers to inquire and obtain information is fundamental to our role and function in our democracy. Were it otherwise, a component of our governance, our grand inquest, would be set aside, impaired and the scrutiny by this House would be crippled; and that has never happened in our entire history. Never has the right of our House to inquire been set aside or displaced and now the minister would suggest that this is not so. This purported, contorted, false and shirking constitutional definition put forward by the minister is not the Parliament designed by our ancestors, some of whom gave their lives to create and sustain it.
In advocating that a Parliament in Canada would be less than it was created to be, the minister invites us to open the door to a potential, silent, secret tyranny that, if not now then some day will be abused and misused by those with seditious, self-interested political purpose.
While our Constitution cannot be amended on the run, and we take some satisfaction from that, we cannot stand idly by when these suggestions are put forward by a government in this House. Our people are free and have the tools, including our Parliament's power of inquiry, to assure us that our governments are accountable to the people and not just to the legions of the self-interested and the powerful. This place serves all of our citizens and not some Holy Grail of centralized power. We have the constitutional provisions to do our job here and we will get the job done.
In conclusion, the law empowering our House to send for persons, papers and records was written long ago. The meaning and reach of that law has not changed in three centuries. The has failed to state that law here. He did not state what the law was in his remarks, not once, and he has not been able to show in any way how Parliament itself has changed it. If this law had changed, then it had to exist in the first place and he has failed to describe either, even though our constitutional law clearly provides that our parliamentary law on persons, papers and records does not change unless explicitly provided for. No House and no court has, to the best of my knowledge, ever found to the contrary, and the has not identified any decision of this House or any statutory change that explicitly changes our parliamentary law.
We do have one example in 2002 of the House actually taking steps to avoid narrowing our power of inquiry which could have resulted from a change to the Canada Evidence Act post-9/11 to better protect national security, and which was improperly described by the on December 10 as actually restricting the House. If that law actually did apply to this House, why has the government not invoked the silencing provisions of sections 37 and 38? The answer is that it knows that it cannot.
The minister's statement falsely states both that the act was strengthened to apply to Parliament, and second, that those who provide evidence to Parliament were bound by those so-called new restrictions. These false words, delivered in public, have the direct effect of slandering the powers and role of this House in deterring our witnesses, particularly those in the ranks of the armed forces, of which he is the minister.
These remarks demand retraction or clarification to protect the dignity of this House, our privileges and our function as the grand inquest. Second, the impact of the December 10 letter from the assistant deputy minister of justice has been put to the House consistently here in the debate, including the testimony of a public servant who indicates that his testimony was constrained by that advice from the Department of Justice.
On the continuing partial compliance and partial default of the government in complying with the order of this House on December 10 to provide documents. While it certainly is a circumstance reflecting breach of privilege, I would look forward to recognition of the House powers and provisions here in the House for screening and protecting sensitive documentation while at the same time making full disclosure to the special committee members on a need-to-know basis while protecting from broader public disclosure.
I would be prepared to move a motion, which I would want very much to be in collaboration with other parties and individuals in the House, and I will do my very best to do that should you, Mr. Speaker, find this to be a prima facie breach of privilege.
Mr. Speaker, I would like to make some comments relating to the question of privilege that I raised in the House, particularly in rebuttal to the comments made by the and the . I made the mistake one time as a lawyer in court of calling the presiding justice “Mr. Speaker”, and I hope I will not make the opposite mistake by calling you “My Lord”, but if I do, I hope you will forgive me.
I have a submission to make which is succinct but not particularly brief, because we have before us some very serious matters involving the fundamentals of our democracy. It has to do with the relationship between Parliament and the executive. Sometimes it is said that in Canada we have an elected dictatorship with prime ministers having vast powers even by comparison to the president of the United States of America in that country's republican system. One of the saving graces of our system is the importance of executive responsibility to Parliament and accountability to Parliament. In that context, the role of parliamentary privilege is of paramount importance.
Although your ruling in this case is important because of the nature of the question, I do not believe your decision is a difficult one at this stage. You are being asked to rule whether there is a prime facie case of breach of privilege. In our House since the time of Speaker Michener, there are two guiding principles, which are enunciated on page 73 of O'Brien and Bosc and repeated at the beginning of appendix 15, and they are:
whether, on the first impression (prima facie) the matter raised appeared to be a matter of privilege, and whether the matter was raised as soon as it could have been. Both were to be determined by the Speaker before a debate could proceed.
Mr. Speaker, you have already dealt with the second condition and have ruled on March 18 that the timing of this was not an issue here. As to the first condition, whether on first impression this appears to be a matter of privilege, in my view there can be little doubt.
Much of what has been said by the and the are matters that are for debate on any motion that might be put to the House, but not on whether this is on the surface a matter of privilege. Nevertheless, extensive argument has been made covering nearly two hours by the two government officials and given the seriousness of the issue, I would like to respond to the points made.
I will be dealing primarily with the question of privilege raised by me in the House, which is very similar to that raised by the member for , but regarding the question of privilege by the member for , particularly the separate question as to whether or not the witnesses at committee may be intimidated and whether that is a breach of privileges of the House, I would refer your honour to pages 114 and 115 of O'Brien and Bosc which indicate:
Just as prima facie cases of privilege have been found for the intimidation of Members and their staff, the intimidation of a committee witness has also been found to be a prima facie breach of privilege.
Mr. Speaker, it goes on with a couple of quotes that you may find useful in dealing with the question of privilege raised by my colleague, the member for .
The made two interventions, one on March 18 and another on March 31. The made an extensive intervention on March 31, lasting some hour and a half. On March 18, the hon. raised the objection that the order of the House of December 10 would result in full exposure of all the documents into the public domain without regard to sensitivity and security concerns.
Not only is that not the case given that the order itself refers to Parliament having access to the documents, it was clear from the debate on the point of order raised at the time by the that a process was contemplated that would satisfy security and other concerns about confidentiality. In debate on the point of order raised on that date, the member for said, at page 7873 of Hansard for that day:
—there are two opinions from the law clerk that indicate that section 38 does not restrict the right of Parliament and the committee to receive documents.
This is the key point:
The committee may, by its own decisions, create a procedure whereupon if it considers any of the documents it receives as injurious to national security interests or international relations, it may not disclose those documents to third parties or may have a hearing that might be in camera. That is in fact in the opinions that I have received from the law clerk. I would be happy to pass them on, and they have been tabled in the committee.
Clearly these were matters of public record and were available, obviously, to the government members of that committee. It ensures that the committee and the House were well aware that procedures could be put in place to ensure the confidentiality and that this was all known on the day the point of order was raised and the day the debate on the motion took place in the House.
To suggest there was no consideration of security or any other concerns of that nature is just not in accordance with reality and the facts. It was clear from the beginning that there would be a procedure to protect national security interests. Also, the motion was not to table documents but to give Parliament access to the documents in an uncensored form.
The second point raised by the was in reference to two rulings made in the House, one by you, Mr. Speaker, on June 8, 2006, and another made November 2, 1983, to the effect that national security, when asserted by a minister, was sufficient to set aside a requirement to table documents cited in debate. Two points should be made in response.
First, the tabling of documents is a practice of the House which, by convention, states that if a member reads from a document, he can be required to table it. It is understandable that such a ruling would be made, as was made by you, Mr. Speaker, and prior to that, because it was necessary to avoid inadvertent disclosure of national security interests because some minister inadvertently read from a document that contained them. This is a refinement of our House practice or convention and is not a rule that is so rigid as to defy an order of the House made and contemplated by the House when such an order is made.
What we are dealing with in the matter before us is a specific House order adopted after debate and after it was ruled to be in order. It was not a simple requirement to table documents referenced in debate, but, rather, an order to make documents available to Parliament, and the precedents raised by the hon. are not applicable.
Second, the stated in his remarks on March 18 that the House has always accepted the national security justification for withholding papers from the House. This is not so. There is certainly restraint exercised, but there are occasions when Parliament and parliamentarians are privy to documents and information concerning national security issues.
Indeed, during the second world war, the House met in secret on two occasions at least to secure briefings on the war and national security was not jeopardized. Also, committees dealing with the review of intelligence services have had access to important confidential information with appropriate measures taken to ensure security of that information.
On March 31, the made a somewhat more brief intervention raising a fourth objection, stating that the order of the House of December 10 was a nullity because the order was not what he called a humble address to the Governor General praying that she will cause to be laid before the House particular documents. The hon. quoted O'Brien and Bosc, at page 1121, in support of that submission.
That reference is under the heading “Notices of Motions for the Production of Papers” and suggests that members may choose to give a notice of motion requesting certain papers or documents be compiled or produced by the government and tabled in the House. There is an opportunity to object and if the objection is made, it can be set aside for debate.
With the greatest of respect to the hon. parliamentary secretary, in my view he is totally confusing form and substance, and in the case of this objection, he is grasping at straws.
First, the reference to O'Brien and Bosc concerns an item in routine proceedings called “notices of motions for the production of papers” and relates to the requirements for tabling of documents in the House of Commons. The relevant minister is given the opportunity to object and if he or she does, it may be set over for debate.
Page 470 of O'Brien and Bosc states:
The Speaker is responsible for ensuring that the motion...is in proper form; that is, that it is the appropriate motion to do what is sought to be done.
A motion, if debated and adopted, then becomes an order of the House. That is the nature of routine proceedings for a notice of motion, not very different from a written question on the order paper asking for certain documents.
Even if we were operating under routine proceedings, which we were not, no objection was raised to the form of the motion at that time, and it was ruled by you, Mr. Speaker, to be in order.
The government had a full opportunity to raise objections to the motion that was moved by the member for on December 10, and indeed, it exercised that opportunity, but it made no objection to the form of the order and it cannot do so now.
In any event the distinction between an address and an order is not relevant in the context of the motion that was actually put to the House on December 10, 2009 because we were not dealing with routine proceedings, and in fact it was ruled to be in order.
The point of order that was raised on December 10 is itself quite relevant to the decision that you, Mr. Speaker, are called upon to make on whether or not the non-compliance with the order is prima facie a question of privilege.
By way of a point of order, various members on the government side, the , the , and the , all raised objections to the motion suggesting it was not in order and was beyond the power of the House. In fact, much of the argument made by the parliamentary secretary and the Minister of Justice on the question of privilege, which you, Mr. Speaker, have heard over the last several sessions, were made during the point of order. The whole debate on the point of order is worth reviewing by you, Mr. Speaker, in that regard when you are making your decision on this prima facie case issue.
At the end of the submission on the point of order, Mr. Speaker, you made your ruling, found at page 7876 of Hansard where you quote from O'Brien and Bosc, pages 978 and 979 as follows:
The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the type of papers likely to be requested; the only prerequisite is that the papers exist--in hard copy or electronic format--and that they are located in Canada.
Here is the important point:
No statute or practice diminishes the fullness of that power rooted in the House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.
I will go back to page 136 of O'Brien and Bosc to further this:
By virtue of the Preamble and section 18 of the Constitution Act, 1867, Parliament has the ability to institute its own inquiries, to require the attendance of witnesses and to order the production of documents, rights which are fundamental to its proper functioning. These rights are as old as Parliament itself. Maingot states:
The only limitations, which could only be self-imposed, would be that any inquiry should relate to a subject within the legislative competence of Parliament, particularly where witnesses and documents are required and the penal jurisdiction of Parliament is contemplated. This dovetails with the right of each House of Parliament to summon and compel the attendance of all persons within the limits of their jurisdictions.
You then make a ruling on the point of order in the following terms on page 7877 of Hansard. It states:
We now have this motion here, and it seems to me that the House has the power to do what a committee can do and then some. A committee could have requested this and demanded the production of these materials. The House can also do whatever a committee can do and then some. Accordingly I feel the motion is in order and I will allow the matter to proceed.
Mr. Speaker, your ruling is not subject to appeal. On page 636-7 of O'Brien and Bosc it states as follows in relation to rulings or points of order:
When a decision on a question of order is reached, the Speaker supports it with quotations from the Standing Orders or other authorities, or simply by citing the number of the applicable Standing Order. Once the decision is rendered, the matter is no longer open to debate or discussion and the ruling may not be appealed to the House.
What we had happening in the submissions by the parliamentary secretary to the government House leader and the is an attempt to re-argue the point of order and this is not permissible.
It may be possible to hear these arguments again on the merits of the House adopting a particular motion, which might be brought forward, should you find a prima facie case, but it cannot be considered in the debate that we are having now on whether or not a prima facie case exists in my submission.
However, the did make several substantive points concerning questions of privilege, which I will now address fairly briefly because when condensed and understood there are not that many.
He suggested that questions of privilege should be considered in light of two guiding principles and those principles he suggested were first, as well established in law and parliamentary practice, that the principle of necessity must underscore matters of privilege. Second, as parliamentarians we should always be guided by a principle of great restraint when asserting privileges of the House.
With these two propositions, I do agree. They are in fact correct.
With respect to the first proposition, the fact that the principle of necessity must underscore matters of privilege, it was recognized in the Vaid case in the Supreme Court of Canada, paragraph 40 which is quoted in O'Brien and Bosc at page 78 as follows:
The primary question asked by the courts is whether the claimed privilege is necessary for the House of Commons and its Members to carry out their parliamentary functions of deliberating, legislating and holding the government to account, without interference from the executive or the courts.
Nothing could be clearer than that, Mr. Speaker, in terms of the principle of necessity and the parliamentary function of the legislature of the House of Commons to hold the government to account without interference from the executive or the courts.
The motion, to order access to the uncensored documents, is firmly based on the necessity of Parliament to be able to hold the government to account, clearly recognizes one of its important functions and obligations. This is basic constitutional law but is also fundamental to our parliamentary democracy.
The claims of necessity to hold the government to account is, in fact, underscored by the approach which the government has taken with respect to the whole issue of Afghan detainees both in the House and in its failure to abide by the order of the House in producing uncensored documents.
I will give but one example which underscores the necessity principle. The example relates to a revelation made by the Chief of the Defence Staff in December of last year to correct his testimony given the day before, and that was on December 9 I believe, before the defence committee.
In correcting his testimony, he quoted a report on a July 2006 incident where Canadian Forces soldiers had in fact passed over some detainees, people who had been arrested, to the Afghans. He quoted a report from a Canadian Forces section commander the following effect:
We then photographed the individual prior to handing him over, to ensure that if the ANP did assault him, as has happened in the past, we would have a visual record of his condition
In the original document released by the government concerning this particular report, all the report said:
We then photographed the individual.
The rest of the document was blacked out. So anybody reading this document, members of Parliament or anybody else, would say, “Oh, they took a photograph of this individual and then they passed him over”. Well, what was that for? Was it for identification purposes? Was it for a collection of photographs for someone who liked taking pictures? What was it for?
The crux of that whole issue was twofold. First, we took the photograph because we were afraid he was going to be abused “as had happened in the past”. That reveals, first of all, prior knowledge of abuse of Afghan detainees.
Second, it contradicted statements made in this House by the on numerous occasions, too numerous to mention, but they could be enumerated, they are all in Hansard, that there was no evidence of Canadian detainees being abused by Afghan authorities.
What do we have here? We have a situation where the necessity principle cries out for Parliament to undertake its work to hold the government to account.
We cannot rely on the decisions made by the government to black out documents in accordance with whatever rules, arbitrary rules or whatever rules they are and whoever is applying them, under the principle of necessity. We cannot devolve from our duty and our obligations to hold the government to account without interference. I could say that the blacking out of these documents is, in fact, interference by the executive in that Parliament is not able to undertake its duties.
In the submission of the he also referred to the second principle, which he said we should be guided by as parliamentarians, the principle of great restraint when asserting the privileges of this House. I agree with that in general terms.
I have to agree with it because the dignity of this House and the respect for the place of Parliament demands that we take our privileges seriously. And they are not our privileges, they are not personal to us. They are privileges that we as a collective hold and guard on behalf of the people of Canada, and that you, Mr. Speaker, as the Speaker of this House, are called upon to stand up for and defend against the Crown, against the Monarch as Speakers in the past have done, in some cases at the cost of their heads.
That is why when the time comes for a Speaker to be elected, after he is elected, he is reluctantly dragged up to the Chair to take on the onerous responsibilities of standing up to the Crown and to the government. For that, sir, we commend you for your courage in doing so. We also commend your courage in deciding this important question on behalf of all Canadians.
Restraint is in order. There is no question about that. I think members of this House, at least on the question of production of documents, have shown some restraint. It has been some 143 days, I believe, or 123 days since the order was made. We are getting badgered by the press, wondering how long we are prepared to wait.
We are doing this in a proper way and in a deliberate way. From the member for , we heard a very scholarly, deliberate and expansive reference to the authorities going back, not quite into time in memoriam but several centuries. This is an institution and a tradition that we have reason to be proud of because it is our parliamentary democracy.
However, in talking about the restraint, the talked about a report from the United Kingdom in 1967.
First, I should say that the report was not adopted by the British House of Commons. I also think it is important to note that our own House of Commons Procedure and Practice, known as O'Brien and Bosc, reports on page 67 that the British House of Commons now takes a more narrowly defined view of privilege than was formerly the case, with the emphasis being placed on parliamentary proceedings. Then the change became apparent in 1967 and refers to that report.
That is not something that has taken place here, Mr. Speaker, as was evident from your ruling given on December 10, which I referred to a few moments ago, in which you stated that this House has not restricted its privileges in any way.
The minister went on to quote O'Brien and Bosc's citation of Maingot's Parliamentary Privilege in Canada that:
A genuine question of privilege is therefore a serious matter not to reckoned with lightly...and thus rarely raised in the House of Commons.
I guess I can agree with that in general terms. It depends what is meant by “rarely”. Because if we look at appendix 15 to our O'Brien and Bosc, there are in fact 51 separate decisions by Speakers from 1960 to June 2008 where prima facie cases of privilege were acknowledged by this House and dealt with in various ways. That does not count the ones that were raised and not found to be a prima facie case. So, it may be infrequent, but I would not go so far as to call it rare if we have, on average, one a year which is found to be a genuine question of privilege.
He also talked about the fact that:
In Australia the government routinely relies on crown privilege to withhold confidential information...and a senate committee in Australia acknowledged as much last month--
Now, I do not know exactly what goes on in Australia and whether it is comparable or not, but the quote itself belies the point made by the because it said:
“there are certain documents which although it may have the power to receive, the Senate ought refrain from demanding”.
That is a suggestion. It does not diminish the powers at all. He then said:
Odgers' Australian Senate Practice also states while the Senate undoubtedly possesses a power to send for papers and records:
“While the Senate undoubtedly possesses this power, it is acknowledged that there is some information held by government which ought not to be disclosed”.
Then the quotation states that this is based on some postulated immunity.
The minister went on with his citation:
“While the Senate has not conceded that claims of public interest immunity by the executive are anything more than claims, and not established prerogatives, it has usually not sought to enforce demands for evidence or documents against a ministerial refusal to provide them but has adopted other remedies”.
Usually. I am suggesting this is an unusual case. I think the debate in this House over the last six months has made it clear that this is indeed an unusual case and both of those authorities recognize that these legislatures, in that case, the Senate of Australia, have the power to do that.
Some of the other questions raised by the were also raised before by him and by the parliamentary secretary. I have already dealt with them, so I am not going to go into detail. However, they have said that there is no prima facie breach of privilege because the government has taken steps to respond to the December order in a responsible manner.
However, the minister also indicated that he thought it was premature because there was no time limit set out in the order of December 10. There may not have been a time limit set out, but it is pretty clear from the order itself that there was a sense of urgency.
In the preamble it says that “the House urgently requires access to the following documents”, and then in the last paragraph, it says, “accordingly the House hereby orders that these documents be produced in their original and uncensored form forthwith”. As I indicated before, forthwith may not be an exact type of statement, but it certainly indicates that there is some urgency and that it has to be done without delay.
We have had considerable delay and that is not something that should be taken as a serious objection to the motion for a prima facie breach, although it is not a prima facie breach. I think the minister misconstrues that. It is a prima facie question of privilege. The House will then decide what to do about it.
He goes on at length to say that “the question raised is primarily one of debate rather than privilege”. He then goes on to debate all of the issues, many of which were already raised by the . I have already dealt with them.
However, there are considerable matters of debate there. I think the debate he talks about is a debate that would take place once a motion has been put to the floor. If you find, as I hope you will and think you should, Mr. Speaker, that there is a prima facie question of privilege, then a motion will be put. I have indicated the nature of the motion that I am prepared to put. It can be debated, amended and considered. All of these questions that were brought before the House by the can be considered by members in determining whether to exercise the powers that it has and what to do in relation to that question of privilege.
I go back to the beginning of my remarks in suggesting that the question of privilege that has to be determined by you now, Mr. Speaker, is whether there is a prima facie question of privilege, not whether there is a prima facie breach. I think some people have talked about that in their remarks. It is pretty obvious that the Conservatives have failed to produce uncensored documents. The documents that were tabled in the House were heavily blacked out. They were not documents in their uncensored form. Again, that is a matter for debate.
Going back to page 73 of O'Brien and Bosc, it talks about the 14th edition of Erskine May and the modern way of raising questions of privilege. It states:
This description of the British procedure soon became a handy reference seized upon by successive Speakers, beginning with Speaker Michener, as a way to curtail spurious interventions by Members on non privilege matters. It introduced two guiding conditions: whether on the first impression (prima facie) the matter raised appeared to be a matter of privilege, and whether the matter was raised as soon as it could have been.
As I said at the outset, you have already dealt with the second part, Mr. Speaker. The question now is whether this question raised before you appears to be a matter of privilege at first impression. I realize it is a bit late to have a first impression, because we have given all sorts of lengthy arguments about what kind of impression we may have of the original question.
I guess in your deliberations, Mr. Speaker, you will have to go back to the first impression and find whether this does appear, on first impression, to be a matter of privilege. Does it deal with a question of privilege? For me at least, it appears to be beyond doubt that we are dealing with the privileges of the House. How we deal with them is a matter for debate, a matter for motion and a matter for the House to determine once it has been determined that it is a question of privilege.
I think that has been recognized as well by the courts. I referred in my original raising of the question of privilege to the Nova Scotia broadcasting case. It was recognized by the Supreme Court of Canada that once a question of privilege had been raised, it is up to the Parliament to decide what to do with that.
That is where we are at right now. We will await your ruling, Mr. Speaker, after you have the opportunity to review the remarks and the authorities. These are my submissions and I thank you for your kind attendance.
Mr. Speaker, I have been listening to this debate today as well as to previous submissions that have been made in Parliament. I recognize that you are the longest-serving Speaker of this chamber, and it says much about your ability to be able to parse an awful lot of the stuff that ends up going in your direction. It also says a lot about the confidence members have in your judgments.
I would suggest there are a couple of practical issues here. First off, I happen to sit on the special committee on Afghanistan and I have never been able to figure it out. Even if the information was given to the members of the committee, myself being one, we could not use it. It is information that is highly secret, information that many nations in the world would have a lot of difficulty with the release of, if we take into account the submission of my colleague.
We may be able to consider it, but how would we be able to put it in the public domain, in any event? It is information that is being shielded because of the public interest, information that is being shielded because of our concern for our armed forces and personnel who are putting their lives on the line minute by minute, second by second, not only in Afghanistan but in other parts of the world. If this information is given to the committee, how can the committee use it? It cannot.
It cannot use it, because if it were to use it and come forward with particular conclusions without revealing what the information was, the people of Canada still would not accept that explanation. They would want to know on what basis the committee came to that conclusion. The fallacy of committee members asking for uncensored or unredacted information is evident in and of itself.
Furthermore, I take a little exception to my friend from the NDP trying to indicate that these redactions, these blank pages, happened by some kind of whim, as if there were no organization to it. Mr. Speaker, of course, you would be fully aware, as I think most Canadians are, although perhaps my friend from the NDP is not, that redactions are very common in legal proceedings and are covered under the Canada Evidence Act.
These are not whimsical redactions. These redactions are done by people who are completely outside the political process, particularly the partisan political process, who are looking at the best interests of our nation and the people who have gone to Afghanistan and are putting their lives on the line.
Here is where we are. I have been really quite interested over the last decade in watching many of the decisions that have been made by the Supreme Court of Canada, particularly on the issue of the charter. As we have seen the Supreme Court come to some conclusions, some of us have been marginally and sometimes grotesquely critical, but nonetheless we watch what has been going on.
It has come to the conclusion in many instances, notwithstanding what the law is, that for the common good, for the good of the nation, the people of Canada and society, notwithstanding what the charter or the Constitution may say, the decision to go in the other direction would be in the best interests of the people of Canada. Mr. Speaker, I suggest that you have that opportunity.
I recognize, as did my colleague from Saskatchewan, the expertise of the member for , particularly his ability to bring forward many of these historic precedents. These are good lessons, lessons that could be taught in universities well into the future. It is good history, which is good to know, but we come down to the basic fact.
Number one, the evidence the committee is looking for, should it be brought forward, in practical terms could not be used by the committee in any event. You, sir, have the opportunity to judge that, notwithstanding all the arguments, the fact is that this information, for the good of our nation, for the protection of our armed forces, cannot possibly be brought forward. As a consequence, I would suggest your judgment might be to consider that, notwithstanding all the arguments, you might save the opposition members from their own folly, you might give them a way out of this box they have put themselves into, because there is no responsible government of any partisan description that, as Government of Canada, could possibly release these documents in an unredacted and a grossly irresponsible form. It could not happen.
Mr. Speaker, I suggest you might come back with the judgment that, notwithstanding all the good arguments that all lead in this particular direction, the practical reality is that my judgment must be that this question of privilege fail.