I have a statement, and I've distributed copies in English and French to I think all members.
Mr. Chair and members of the committee, thank you for your invitation to appear once again before you regarding your study on access to information requests and parliamentary privilege.
You will remember that when Mr. Bosc, the deputy clerk, and I appeared before you on October 16, 2012, we explained the background to the specific situation that gave rise to your committee's study, we reviewed the concept of parliamentary privilege, and we discussed how a process could be put in place to allow committees to deal with access to information requests made to the House as a third party for documents covered by parliamentary privilege.
[Translation]
Since then, your committee has heard from the Information Commissioner of Canada, Ms. Legault, and from Mr. Drapeau of the University of Ottawa, who explained the legal framework of the access to information regime.
[English]
Faced with this testimony stressing the limits that exist with the access to information legislation, but not having full information on the legal and constitutional impact of privilege, I can understand that the committee is now wondering how the law reconciles these two realities.
I note that a particular legal question has been raised on a number of occasions by members and witnesses, but has not yet, I believe, been squarely addressed or fully answered. Simply put, the question is as follows: given that there is no specific provision in the Access to Information Act that excludes or exempts disclosure of information covered by parliamentary privilege, on what legal basis can such information not be disclosed?
[Translation]
The answer is that the Access to Information Act, like all statutes, must be interpreted and applied in a manner that does not violate the Constitution.
As stated in the preamble and section 18 of the Constitution Act, 1867, parliamentary privilege forms part of the Constitution, and like any other part of the Constitution, it cannot be violated or infringed upon by the operation of a statute.
[English]
The concept of parliamentary privilege is not as well known as the Charter of Rights and Freedoms by many Canadians or some governmental officials, but it has the same status as all other constitutional provisions.
On two occasions, the Supreme Court of Canada has confirmed that parliamentary privilege has the same constitutional effect and weight as the charter, and that the charter cannot override parliamentary privilege: first, in the case of New Brunswick Broadcasting v. Nova Scotia—the Speaker of the House—where parliamentary privilege had to be measured against the charter; and second, in the case of House of Commons v. Vaid, where it had to be measured against the Canadian Human Rights Act. In both cases, privilege was determined to take precedence.
[Translation]
As members know, there is no provision in the Access to Information Act that indicates that information is not to be disclosed where to do so would violate the charter. However, I believe that departments and the Information Commissioner would have no difficulty in accepting that they are required to respect the charter rights even when the statute is silent.
[English]
And so it must be for parliamentary privilege: parliamentary privilege has equal constitutional status to the charter and must similarly be respected.
Where there is a conflict with a statute, it has always been a part of Canadian law that the Constitution must be respected and remain paramount. This is specifically set out in section 52 of the Constitution Act, 1982, which reads as follows:
The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
This provision does not only relate to the charter, but to all the parts of the Constitution, including parliamentary privilege, which is rooted in the preamble and section 18 of the Constitution Act, 1867, as stated earlier.
[Translation]
As such, even though the Access to Information Act does not specifically mention parliamentary privilege as an exemption or exclusion to disclosure, the act must be read and applied so as to give primacy to parliamentary privilege.
[English]
Further, parliamentary privilege must be recognized whether or not the access to information legislation is amended.
In the Vaid decision noted above, the Supreme Court of Canada determined that the Canadian Human Rights Act generally applied to the House of Commons. However, the court also determined that the act did not apply in such a manner so as to infringe parliamentary privilege.
As was noted in my earlier appearance, there is at least one case in Canada where the issue of parliamentary privilege was accepted as an “exception to” or an “exemption from” access to information legislation, where the act was silent. This was the case of the Assemblée nationale du Québec against Bayle in 1998 under the Quebec equivalent of the Access to Information Act. The access to information regime applies to the National Assembly. A request was made to the assembly for documents that were covered by parliamentary privilege. Notwithstanding that the assembly was covered by the act and notwithstanding that there was no specific exemption for materials covered by privilege, the court determined that the act could not operate so as to infringe constitutionally entrenched privileges.
[Translation]
So, it was within this constitutional and legal framework that our office took the actions that it did last summer.
I hope this information will be useful to the committee in its study. There are also a few additional legal points that I would like to submit to the committee for its consideration.
The collective privileges of members belong to the House itself and no one else. It is then up to the House to determine how its privileges are to be exercised. Only the House can choose to not insist on its privileges in any particular situation.
[English]
What is important is that since the privileges belong to the House, the House has the sole authority to exercise them or to determine how they will be exercised. The Speaker's role, and that of those who work under his or her authority, is to safeguard and protect those privileges.
To sum up, parliamentary privilege forms part of the Constitution of Canada. As part of the Constitution, all statutes must be read and applied so as to respect parliamentary privilege, in the same way that statutes must be read and applied in a manner that does not infringe on the charter.
Finally, during your proceedings it has been suggested that the only way to resolve these issues is through amendments to the Access to Information Act. In my view, because of the constitutional nature of parliamentary privilege, this is not necessary. However, given the uncertainty expressed by some about how privilege applies, consideration of some other form of legislative approach could be considered. If this is the direction the committee believes would be desirable, my office is available to address how this could be achieved, making sure that the interests and independence of the House and its members would not be compromised.
[Translation]
I thank you very much for your attention and I am available to answer your questions.
:
Certainly. Thank you, Mr. Chair.
In terms of the unintended consequences of an amendment to the Access to Information Act, I'll start by stating that yes, there are certainly issues with the act as it's drafted presently because it does not address the question of parliamentary privilege, and that's essentially the reason we are here today: we don't really know how to deal with it. But if the act were to be amended, you would be faced with a situation where only the access to information regime would be clarified, whereas there might be other situations in the general sense where the privilege of the House could be affected.
I'm not getting into too much detail, but there are situations concerning human rights or the Privacy Act, financial administration. There are other situations in the general context of the statute law that could also raise questions about the privileges of the House. So if you were to amend only the Access to Information Act, one of the consequences would be that you would solve one problem, but you could also have others.
We've identified a few here that I could just briefly read into the record. Legally and constitutionally, it is for the House to make the determination on whether documents are covered by privilege. If that were the case, could there be a judicial review of this? That is a question that would have to be looked into as well.
The other problem you would have is.... Remember that the study here is essentially to decide whether or not requests to the House from third parties can be refused or excluded. This is in the context of the definition of proceedings in Parliament and what are proceedings in Parliament, so that question would still remain. How far privilege applies, or how far or what kinds of documents could still be requested, could be clarified through a report of the committee, but these kinds of questions would be lagging.
My point is that by only amending the Access to Information Act, you're limiting the solution.
In terms of proposed solutions, there are a few we have considered in addition to proposing amending the act. In the Parliament of Canada Act there are provisions where the privileges of the House are recognized. I will just briefly quote section 5, which tells you that:
5. The privileges, immunities and powers held, enjoyed and exercised in accordance with section 4
—which recognizes them—
are part of the general and public law of Canada and it is not necessary to plead them but they shall, in all courts in Canada, and by and before all judges, be taken notice of judicially.
One way of maybe solving or proposing an amendment would be to add to the Parliament of Canada Act a recognition of some sort that would make it necessary to recognize the nature of privilege. That way there could be language we could propose to the committee, in the sense that as a general rule the necessity would be imposed to take into account privilege in the application of all of the statute law. So you would have some sort of a head provision in the Parliament of Canada Act that would cover most situations.
:
Thank you. I appreciate that.
I have had a long-standing interest in the issue of freedom of information. The point I was going to make was exactly the one Mr. Scott just made about the quasi-constitutional nature of the reference we've heard often.
It puts us in a bit of a conflict, even as members of Parliament. We are duty bound to uphold the concept of parliamentary privilege as parliamentarians. But as representatives of the general public, trying to protect and defend this public, what we believe should be a public interest overrides it. If there are going to be competing interests, which ones have primacy should be on the side of the people, I think, and the people's right to know should be considered absolute.
Freedom of information is the oxygen democracy breathes. It is a fundamental cornerstone of our democracy. In trying to consider whether we should follow other jurisdictions and put in place a discretionary exemption versus an absolute exclusion, I don't think we should have to debate that for very long. The idea of a codified discretionary exemption I think should have more weight than the notion of exclusion and having to fight for the public's right to know. I think that should be considered absolute by members of Parliament. The public has a right to know what their government is doing, subject to very few limitations, such as national security and commercial privacy, etc.
How do you reconcile the fact that other jurisdictions have in fact managed to codify those competing interests, and which one do you think does it best?
:
I'm trying to be as gracious as I can. I still need your cooperation.
It strikes me that in our interest of defending the principle of parliamentary privilege, which I wholly support, we have to be cognizant of the fact that there's such a thing as too much privilege. There can be a surplus of parliamentary privilege.
I just read a book by Joseph Maingot on parliamentary privilege versus parliamentary inviolability. In the European Union, in some countries fugitives from justice hide behind being elected: they can be members of Parliament who can't be prosecuted, because they hide behind privilege.
The public has just about had it with concepts and notions like that. We live in a political environment. Guys like Berlusconi stay immune from prosecution while they're in office. The shroud of secrecy is over certain activities of Parliament because of parliamentary privilege.
These are not good things for us to run an election campaign on. I think we have to remind ourselves from time to time of the Open Government Act of John Reid, the former information commissioner.
Scott, I think you were probably aware of that in those days. The Conservative Party adopted it in its totality as a platform plank in 2006. He talked about “public interest override” having primacy over all other considerations in the administration of freedom of information, as he called it.
I see us drifting away from those laudable concepts.
I just had a conversation with Dominic here. Guys like David Dingwall ran afoul in trying to explain privilege to the public. It ain't no beach party trying to explain privilege to the general public. “Entitled”—he's still wearing that.
I think we should be really cautious. If there's a way to codify in legislation the notion that on a discretionary basis some activities of Parliament will be subject to freedom of information and some will be reserved, for good reason—such as what the Information Commissioner does on a daily basis in making that adjudication.... The notion of being excluded completely and—what's the other term?—exempted—