Mr. Speaker, I appreciate the opportunity to have you hear this response to the arguments we had from the House leader yesterday.
At the outset, I read through his arguments in the blues because I was not in the House when he made them. I believe he has made a number of errors in his argument and I want to address those. Also, there were a number that were just irrelevant, but I will touch on those as I go through.
Let me start with the comments where he seemed to have focused on the fact that committees were their own masters. I clearly acknowledged that in my remarks when I made my argument on Monday. However, I want to emphasize, as I said at that time, committee members, chair and committee as a whole are regularly responsible for our own conduct, but it is not an absolute authority on our part. There are times, Mr. Speaker, and this is one of them I would argue, when you should intervene. It is not an absolute right for committees to be in charge of their own responsibilities.
The House leader acknowledged that in his talk to the House when he said, “I would agree that in certain situations the Speaker ought to intervene”. He admitted again that he was wrong when he said that because he blew his argument when he was supporting mine.
Mr. Speaker, let me go to the times when it is appropriate for you to intervene, using again the House leader's quote from Mr. Speaker Parent when he said the Speaker had the right to intervene because “The Chair found there was an evident breach of the Standing Orders”.
The litmus test, as set by the Government House Leader, seems clear in this regard, that if the committee chair or the committee itself is in breach of the Standing Orders, the Speaker should intervene, which is what I am asking you to do, Mr. Speaker.
You will recall in my initial remarks, Mr. Speaker, when I quoted the House of Commons Procedures and Practice, second edition, by O'Brien and Bosc, on page 1048:
At all times, directives from procedural sources higher than parliamentary committees (Constitution; statutes; orders of reference, instructions and Standing Orders of the House; and rulings by the Speaker) take precedence over any rules a committee may adopt.
Therefore, using the government House leader's litmus test that the Speaker should intervene when committees break Standing Orders in conjunction with the superiority of rules like the sub judice convention and the division of powers set out in the Constitution, it seems that he and I can agree that when the Constitution and conventions are contravened by the committee, that the Speaker should take action. I think he is on side with me in that regard, although he may be reluctant to admit it.
The House leader then went on to argue that the letter of the Law Clerk and Parliamentary Counsel, Mr. Robert Walsh, to the hon. member for , dealt mostly with potential consequences and hypothetical scenarios. I have to take serious exception with that characterization of Mr. Walsh's opinion. Mr. Walsh stated very clearly that with respect to compelling the production of documents for the purposes that were set out in the motion by the member for , which has already been adopted by the committee, “such initiatives are not within the constitutional functions of the House or, by extension, its committees”.
The committee has adopted that motion, it is seized with the study, there is absolutely nothing hypothetical about this. His attempt to characterize Mr. Walsh's opinion in the way that he did is really unfortunate because it is grossly in accurate.
However, not satisfied with what he did with Mr. Walsh's matter, he then went on to do the same for one of the remarks that I made. The government House Leader said about my remark:
—the member for Windsor—Tecumseh premised much of his concern around the notion that the ethics committee would not be successful in keeping its proceedings in camera.
When I made reference to that, all I was doing was acknowledging that Mr. Walsh had raised the point.
My argument was entirely based on the fact that the breach had already occurred. It is not based just on the inevitability of the in camera proceedings being breached. The breach has already occurred. When that motion was passed, according to the opinion of Mr. Walsh, the breach occurred, the breach of the constitutional division of powers between the judiciary and the legislative wing of the government and the conventions that have grown up around that. It is not hypothetical, it has already occurred.
The House leader then went on and brought to your attention, Mr. Speaker, a portion of the ruling of Mr. Speaker Fraser, at page 9756 to 9758, of Debates, which I did not see any reason to bring up, although he seemed to accuse me for not doing so, simply because it was irrelevant. He is talking about some responsibility that I seem to be giving to you about controlling the chair. This is not an issue here. It is not the conduct of the chair that has any relevance to the procedural motion that I brought. The chair of that committee did absolutely nothing to breach the rules. It was the original motion being passed by the majority in that committee that breached the rules.
He went on to talk about somehow you intervening, Mr. Speaker, and having to control, which of course is not your responsibility, other than in extreme cases. We have no way of knowing about that, because all of this was done in camera, and I made no reference to it in any way. He raised a totally irrelevant point.
He went on with another mischaracterization. The government House leader claimed that the CBC's production of documents, as prescribed in the adopted motion, was voluntary. Let us look at this. Here is a line from the opening paragraph of the letter to the committee's chair that accompanied the documents in question. It had turned over certain documents to the committee earlier this week. It said:
While we have chosen to comply with the order...we do so under protest and with strong reservations about the purpose for which the documents have been requested.
That is not voluntary by any stretch of the imagination and it is absurd that it would be claimed to be so. It is like saying it is voluntary when an individual is being mugged and turns his or her wallet over at the point of a gun. That is what they were faced with and it was not voluntary at all.
I want to address a few comments about what the government House leader did, spending a great deal of time and energy setting out the proper process for the committee to compel documents through an order of the House. While very informative, the point of the lesson in the context of the question at hand escaped me. He claimed his point was that:
—that the appropriate time to be raising points about the proceedings of the ethics committee and how they may intersect with the sub judice convention would be at that time, that is to say, after any report from the ethics committee is presented.
While I agree with him that is one of the times we can do it, it is not the only time by any means. There are other appropriate times, and this is one of them. It is a very strong argument on my part.
In a situation like we have here, where we have, as found by the Law Clerk, a clear contravention of the Constitution and its conventions that have grown up under it, that is the time when you have the authority to intervene, Mr. Speaker, and I would submit strongly that you should do so in this case.
I want to make one additional point about the argument he made, and I think you raised it after I had made my argument on Monday, Mr. Speaker, about the normal practice of waiting for a report to come from committee before you make a ruling on a motion of this kind.
If we go back a bit and look at where that practice came from, and it is about a practice, the reason for it is it would be unfair to the Speaker in any given situation to ask him or her to make a ruling when the facts were not clear. If you have a report that has been passed by committee, it is before you, as the Speaker, you would clearly know what the facts are. You would have any number of cases where you as the Speaker would need that report in order to make a valid ruling. I acknowledge that.
That is not the situation we have here. There are only two facts that are of any relevance in terms of the breach of the mandate of the committee and it moving beyond its mandate. One is the motion itself, which we have. The second is we have the opinion of the Law Clerk, which says that motion, as passed by the committee, if carried out, would in fact be a breach of the Standing Orders and the practice in the House as well as the contravention of the Constitution and the conventions under it.
Two facts are all you really need, Mr. Speaker, to make your ruling: first, to recognize the motion that was passed in the standing committee; and second, the opinion of the Law Clerk that it is a breach of the Constitution.
In his final point, and I will make a couple of comments on this and then I will be finished, he urged the Speaker to wait. I think he was trying to argue a similar point, as was earlier said, that somehow the Speaker had to wait until the breach had occurred and the report had come to the committee. As I have said in all the facts that I have already given you, Mr. Speaker, that is simply not a necessity in these circumstances.
I want to make this final point with regard to interpreting that motion, and that is the comments that have been made by the member for , and I made reference to these in my opening argument. He has clearly said, as the motion also clearly demonstrates, that the committee would be substituting the role of the judiciary. Again, I go back to those words that I think are so damaging to the cause of the government side. The member for said, “We are going to determine and assess the facts of the case behind closed doors”. Those were his words.
In that regard, it is clear the judiciary in the country has that responsibility. It is clear under the Constitution. We could go through any number of pieces of legislation where it is clear. That is the role of the judiciary. It is clear in the Broadcast Act that it is its authority. It makes the interpretation, not a parliamentary committee.
Parliamentary committees make use of that, once that determination has been made in terms of whether there should be amendments to the legislation. However, the committees do not make that assessment. It is done by the judiciary.
I will conclude, Mr. Speaker, by again asking you to take into account the request I made with regard to how to dispose of this matter, either to declare the committee's work with regard to the study to be completely beyond its mandate or at the very least, as a fallback position, that it suspend any further study until such time as the courts have concluded, and that may include an appeal to the Supreme Court, their intervention in this matter.
Mr. Speaker, I will first deal with the question of disclosure that has been made by the CBC in forwarding documents.
My friend suggested that somehow this is not a voluntary disclosure but rather one that has been compelled. We have the unusual phenomenon before us where the corporation, which is required to disclose information under the law, has done so, but the opposition House leader is making the case that it should not have done so. It was the choice of the CBC to make that information available.
There was some information under seal which the CBC obviously believed to be of concern, but some that was not under seal and obviously CBC believed it to be open. The committee has not yet had an opportunity to turn its attention to those items to determine whether it is satisfied.
As I said earlier, Mr. Speaker, for any determination to be made by you in advance of the committee having decided whether the voluntary disclosure it has received is satisfactory would be premature. It would be highly unusual for you to offer an opinion in advance of the facts before you.
Further, the opposition House leader characterized, or mischaracterized, the parliamentary law clerk's letter as a finding. It is not a finding. It constitutes advice. My friend is a lawyer and I am trained in a similar fashion. We all know there are such things as legal opinions. We all know there is a diversity of legal opinions. We all know that unless they are made by a judge, or the Speaker in the context that we are in, or the chair of a committee in that context, they are not findings. They are merely letters of advice.
Not only has the member elevated it in his arguments to the level of a finding, he has created this very unusual device where he wants you, Mr. Speaker, to be the police officer to enforce his interpretation of what that legal advice is to the committee. That is a stretch many steps too far.
It is the member's interpretation of the law clerk's advice that he is now purporting you should make into an order that must be enforced. There is no such order. His interpretation, with the greatest of respect, is not one that is shared by others. It is certainly not an appropriate role for the Speaker to do that. It certainly is highly inappropriate for us to essentially displace the role of the Speaker by that of the law clerk and suggest that this advice somehow displaces any decisions that are made by the chair of the committee or by you, Mr. Speaker, ultimately as Speaker. Again, that is not appropriate.
The committee has the benefit of that advice. It can act on that advice and it can interpret that advice. It is the role of the chair and members of that committee to interpret that advice as masters of their own universe. It is not the member's place to provide that interpretation in a definitive fashion.
Similarly, Mr. Speaker, in asking you to deal with this, he is asking for an interpretation of law or of the Constitution. As you know, Mr. Speaker, there are abundant rulings, including some by yourself already in your short time as Speaker, that make it clear it is not the Speaker's role to interpret law or the Constitution.
Finally, I listened very carefully to my friend's arguments. He said that it was appropriate for the Speaker to intervene when there is a clear breach of a standing order. However, I do not see any here. I listened very carefully to my friend's arguments, but I did not hear him say what standing order had been breached. I would invite him to rise and state which standing order has been breached, and if there is none, I think that disposes of the question definitively.