Madam Speaker, you are absolutely right.
I thank my hard-working colleague from Kingston and the Islands, and I must say how impressed I am by his outstanding participation these past few months.
I would like to take this opportunity to express my appreciation for the interpreters, who work under such difficult conditions. Earlier, my colleague from pointed out that interpreters have an extremely tricky job to do under very challenging conditions. We acknowledge that, and I appreciate their contribution and their support for the work we do in Parliament.
I will go back to my text. I have a few sentences to present today. I will get back to the quotation regarding the order that had been adopted by the House a few days ago.
I will continue.
(b) the Law Clerk and Parliamentary Counsel shall promptly thereafter notify the Speaker, who shall forthwith inform the House, whether he is satisfied the documents were produced as ordered;
Madam Speaker, you informed the House, as set out in paragraph (b), that the documents had not been produced as ordered.
I want the House to understand the full context surrounding the documents required, so allow me to explain how this order works.
When the Special Committee on Canada-China Relations was created on December 10, 2019, in response to the motion moved by the Leader of the Opposition, the Journals stated, on page 28, “that the committee be granted all of the powers of a standing committee, as provided in the Standing Orders”.
More specifically, Standing Order 108(1)(a) grants standing committees the authority to “send for persons, papers and records”.
This authority was renewed when the Special Committee on Canada-China Relations was re-established through paragraph (q) of the special order adopted on September 23, 2020, as indicated on page 4 of the Journals.
On March 22 of this year, Iain Stewart, president of the Public Health Agency of Canada, testified before the special committee. Despite relentless questioning by the hon. members for , , , and , Mr. Stewart refused to provide concrete or substantive answers pertaining to the House's latest order, and his answers were variations of a statement about his being unable to provide details.
In response, the special committee adopted the following order during the meeting:
That the president of the Public Health Agency of Canada provide a written response to all questions raised during the course of tonight’s meeting in relation to the two scientists whose employment at Canada’s National Microbiology Laboratory was terminated and that the response be submitted to the clerk of the committee, no later than 2:00 PM (EDT) on Friday, March 26, 2021.
Mr. Stewart's letter in response was unsatisfactory. Specifically, he said that the Privacy Act prevented him from disclosing the information the parliamentary committee wanted.
The special committee then consulted with the law clerk and parliamentary counsel regarding its powers and the implications of the Privacy Act. Based on that advice, on March 31 the special committee adopted the following motion, which was the subject of an order of the House last week:
That the committee send for all information and documents in the possession of the Public Health Agency of Canada or any subsidiary organizations relating to the transfer of Ebola and Henipah viruses to the Wuhan Institute of Virology in March of 2019 and the subsequent revocation of security clearances for, and termination of the employment of, Dr. Xiangguo Qiu and Keding Cheng, provided that:
(a) these documents shall be deposited with the Law Clerk and Parliamentary Counsel, in an unredacted form, within 10 days of the adoption of this order;
(b) the Law Clerk and Parliamentary Counsel discuss with the committee, in an in camera meeting, information contained therein, which in his opinion, might reasonably be expected to compromise national security or reveal details of an ongoing criminal investigation, other than the existence of an investigation, so that the committee may determine which information is placed before a committee in public;
(c) should the Public Health Agency of Canada not provide documents in their unredacted form within 20 days, the President of the Public Health Agency of Canada and the Acting Scientific Director General of the National Microbiology Laboratory be scheduled to appear for three hours before the committee, within 27 days of this motion passing, to explain why the documents were not provided.
On April 20, the law clerk received about 267 pages from the Public Health Agency of Canada, with various redactions that had not been authorized by the Special Committee on Canada-China Relations. Furthermore, 279 additional pages had been completely redacted. At its April 26 meeting, the special committee adopted the following motion in response to the documents PHAC provided, stating that it was not satisfied with the agency's response:
— That pursuant to the motion adopted by this committee on Wednesday, March 31, 2021: “ [...] (c) should the Public Health Agency of Canada not provide documents in their unredacted form within 20 days, the President of the Public Health Agency of Canada and the Acting Scientific Director General of the National Microbiology Laboratory be scheduled to appear for three hours before the committee, within 27 days of this motion passing, to explain why the documents were not provided”, the committee does thus invite the President of the Public Health Agency of Canada and the Acting Scientific Director General of the National Microbiology Laboratory to appear at their earliest convenience.
On May 10, Mr. Stewart appeared before the special committee once again. He continued to refuse to provide the information requested and, because of PHAC's ongoing refusal to co-operate, the special committee adopted this motion, originally moved by the Liberal member for , which was also in the June 2 order of the House, and I quote:
That the unredacted documents from the Public Health Agency of Canada be provided to the Law Clerk and Parliamentary Counsel within 10 days to review and ascertain the fairness of them, and should the documents not be provided, that the committee report the following to the House: Your committee recommends that an Order of the House do issue for all information and documents, in the care, custody or control of the Public Health Agency of Canada and subsidiary organizations, respecting the transfer of Ebola and Henipah viruses to the Wuhan Institute of Virology in March 2019 and the subsequent revocation of security clearances for, and termination of the employment of, Dr. Xiangguo Qiu and Keding Cheng, provided that: (a) these documents be deposited, in both official languages, with the Law Clerk and Parliamentary Counsel no later than two weeks following the House’s concurrence in this recommendation; (b) the Law Clerk and Parliamentary Counsel discuss with the committee, in an in camera meeting, information contained therein, which in his opinion, might reasonably be expected to compromise national security or reveal details of an ongoing criminal investigation, other than the existence of an investigation, so that the committee may determine which information is placed before the committee in public.
The second order of the committee was not satisfactorily complied with as we can conclude from the fact that the recommendation included in this motion was later presented to the House in the third report of the Special Committee on Canada-China Relations on May 26.
We now have a third order, and this time it is an order of the House of Commons of Canada, which the Public Health Agency of Canada did not comply with.
In baseball we say, “Three strikes and you're out.” This is not a game. It is about the fundamental and ancient powers of the House of Commons to act as the grand inquest of the nation. This is being openly defied, dismissed and mocked by the Liberal government. It is, in a word, treating the House with contempt.
Page 137 of House of Commons Procedure and Practice, third edition, explains:
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.
Indeed, as one mark of how old the power is, Erskine May treated it as a settled matter in the first edition of his eponymous treatise on parliamentary procedure, published in 1847, at page 309. It states, “Parliament, in the exercise of its various functions, is invested with the power of ordering all documents to be laid before it, which are necessary for its information.”
With regard to the scope of that power, Bosc and Gagnon quoted favourably from page 190 of Joseph Maingot's second edition of Parliamentary Privilege in Canada, which reads as follows:
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.
Bosc and Gagnon go even further with regard to the scope of the House's power to request documents on pages 984 and 985, where it reads:
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 types 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 [or elsewhere]. They can be papers originating from or in the possession of governments, or papers the authors or owners of which are from the private sector or civil society (individuals, associations, organizations, et cetera).
In practice, standing committees may encounter situations where the authors of or officials responsible for papers refuse to provide them or are willing to provide them only after certain portions have been removed. Public servants and Ministers may sometimes invoke their obligations under certain legislation to justify their position. Companies may be reluctant to release papers which could jeopardize their industrial security or infringe upon their legal obligations, particularly with regard to the protection of personal information. Others have cited solicitor-client privilege in refusing to allow access to legal papers or notices.
Madam Speaker, I remind my colleagues that I was sharing a quote from Bosc and Gagnon.
I will continue with my quote:
These types of situations have absolutely no bearing on the power of committees to order the production of papers and records. No statute or practice diminishes the fullness of that power rooted in 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.
This also came up in the first report of the former Standing Committee on Privileges and Elections, which was tabled on May 29, 1991, and of which the House took note on June 18, 1991.
The power to send for persons, papers and records has been delegated by the House of Commons to its committees in the Standing Orders. It is well established that Parliament has the right to order any and all documents to be laid before it which it believes are necessary for its information.... The power to call for persons, papers and records is absolute, but it is seldom exercised without consideration of the public interest.
I will get back to this last point in a moment.
In a May 2019 report on the power to send for papers, the United Kingdom House of Commons Procedure Committee concluded at paragraph 16, “The power of the House of Commons to require the production of papers is in theory absolute. It is binding on Ministers, and its exercise has consistently been complied with by the Government.”
Over the past few decades, the House has experienced several instances of the withholding of documents requested by the House or its committees.
After the Access to Information Act and Privacy Act were passed, the first major conflict between parliamentary privilege and the government's view of those laws occurred in 1990, when a committee requested reports about two murderers who had escaped from prison.
The matter is summarized in footnote 182 at page 987 of Bosc and Gagnon, which we cited earlier, and I quote:
During the Thirty-Fourth Parliament, following the refusal of the Solicitor General to provide two [unredacted] reports to the Standing Committee on Justice and the Solicitor General on the grounds of privacy, the Committee reported the matter to the House. Subsequently, a question of privilege was raised by Derek Lee (Scarborough—Rouge River) concerning the Minister's refusal to provide the reports sought by the Committee. No ruling was delivered as to whether the matter constituted a prima facie breach of privilege, but the issue was referred to the Standing Committee on Privileges and Elections.... The Committee presented a report which concluded that the Standing Committee on Justice and the Solicitor General had been within its rights to insist on the production of the two reports and recommended that the House order the Solicitor General to comply with the order for production. The House subsequently adopted a motion to that effect, with the proviso that the reports be presented at an in camera meeting of the Standing Committee on Justice and the Solicitor General....
In 2004, the Standing Committee on Agriculture and Agri-Food was unable to obtain the financial statements of private businesses, despite giving many guarantees that sensitive information would be protected. The matter is explained in footnote 180 at page 986 of Bosc and Gagnon:
In its attempt to obtain the financial statements of Canada's five major meat packers in the course of its study on beef pricing, the Standing Committee on Agriculture and Agri-Food adopted a motion stating that the financial statements would not be copied for the Committee members, but would be provided to the Office of the Law Clerk and the analyst assigned to the committee by the Library of Parliament. The analyst would review the information and prepare a report to the Committee drafted in such a fashion as to protect specific sensitive business information that could disclose the identity of any person or corporation. The motion also provided for a mechanism for the retention and eventual destruction of the records.... After presenting two reports in the House on the matter..., the Committee reiterated its requests to the meat packers concerned in the new session of Parliament following the dissolution of Parliament which had occurred in the meantime. It then obtained the records requested....
At this point, I should provide a brief explanation of those two reports.
The Standing Committee on Agriculture and Agri-Food presented its third report on May 6, 2004, which stated that three companies were in contempt and ordered them to provide certain documents to the clerk of the committee within four days. The House unanimously concurred in the report immediately after it was tabled, finding the companies in contempt.
The Standing Committee on Agriculture and Agri-Food then presented its fourth report on May 13, 2004, noting that one of the three companies had responded. As for the other two, the committee reported that they were still in contempt, gave them another week to respond and set out the penalties that would be imposed if they did not. The House sat for only one day before Parliament was dissolved, so the report was never concurred in.
Then came the well-known ruling from your longest-serving predecessor, Mr. Milliken, on the documents related to the conflict in Afghanistan. Bosc and Gagnon described the situation at page 139:
In November 2009, the Special Committee on the Canadian Mission in Afghanistan reported to the House that its privileges had been breached by the Government's failure to produce documents requested by the Committee relating to the detention of Afghan soldiers by Canadian Forces in Afghanistan.
I will briefly note that a question of privilege was raised but was rejected by Speaker Milliken on November 30, 2009, at page 7386 of the Debates.
During a Liberal opposition day, the House adopted a motion, which our voted in favour of, in accordance with the conditions established at page 1195 of the Journals on December 10, 2009:
That, given the undisputed privileges of Parliament under Canada's constitution, including the absolute power to require the government to produce uncensored documents when requested, and given the reality that the government has violated the rights of Parliament by invoking the Canada Evidence Act to censor documents before producing them, the House urgently requires access to the following documents in their original and uncensored form:
Seven categories of documents pertaining to the Afghan detainee situation were listed.
...accordingly the House hereby orders that these documents be produced in their original and uncensored form forthwith.
Let us now go back to page 139 of Bosc and Gagnon for the explanation:
...the Government refused [to provide the requested documents], citing national security concerns. Questions of privilege were raised based on the House's absolute right to order documents. The Minister of Justice insisted that as the government had a duty to protect information that could jeopardize national security, that right was not without limits. On April 27, 2010, Speaker Milliken ruled that it was within the powers of the House to ask for the documents specified in the House Order, and that it did not transgress the separation of powers between the executive and legislative branches of Government. Thus, the Speaker concluded that the Government's failure to comply with the House Order constituted a prima facie breach of privilege. However, he gave the parties two weeks to develop a mechanism that would accommodate the Government's concerns over national security and the House's right to receive the documents.
Footnote 348 at page 139 explains how Speaker Milliken's ruling was implemented:
Following an agreement in principle of all parties and the resulting memorandum of understanding, signed only by the Government, the Official Opposition and the Bloc Québécois, an ad hoc committee composed of one Member and one alternate from each of the three parties signatory to the agreement examined the approximately 40,000 pages of unredacted text related to Afghan detainees, after being sworn to secrecy.... To facilitate the identification of relevant documents, a three-person panel, known as the Panel of Arbiters, was struck, comprised of former Supreme Court Justices Frank Iacobucci and Claire L'Heureux-Dubé, and former B.C. Supreme Court judge Donald Brenner, to assist the Members of the ad hoc committee in their work.... On March 26, 2011, the Fortieth Parliament was dissolved. On June 22, 2011, John Baird, the Minister of Foreign Affairs, tabled approximately 4,000 pages of documents relating to the detention of combatants by the Canadian Forces in Afghanistan....
Meanwhile, in 2011, another prima facie case of privilege was found with respect to efforts by the Standing Committee on Finance to obtain documents. Allow me to summarize for the House the events surrounding that, as well as the outcome.
First, on October 6, 2010, the finance committee requested certain financial information from the government, but no response was forthcoming. As a consequence, on November 17, 2010, the finance committee adopted a motion ordering the production of various government documents concerning economic projections and costing estimates. On November 24 and December 1, 2010, the government responded to the finance committee, advising that certain documents being sought constituted cabinet confidence.
On February 3, 2011, the finance committee adopted a motion to report the foregoing events to the House. That report, the finance committee's 10th report, was presented on February 7, 2011, following which Scott Brison rose on a question of privilege.
Meanwhile, the government tabled in the House some documents pertaining to the Standing Committee on Finance's request. In any event, on February 17, 2011, the House considered and then, on February 28, 2011, adopted an opposition motion moved by the Hon. Ralph Goodale and seconded by the Minister of Crown-Indigenous Relations.
This is the text of the motion:
That, given the undisputed privileges of Parliament under Canada's constitution, including the absolute power to require the government to produce uncensored documents when requested, the government's continuing refusal to comply with reasonable requests for documents, particularly related to the cost of the government's tax cut for the largest corporations and the cost of the government's justice and public safety agenda, represents a violation of the rights of Parliament, and this House hereby orders the government to provide every document requested by the Standing Committee on Finance on November 17, 2010, by March 7, 2011.
Then, on March 9, 2011, Speaker Milliken ruled on Mr. Brison's question of privilege, finding a prima facie breach of privilege, and Mr. Brison moved a motion to refer the matter to the Standing Committee on Procedure and House Affairs.
The Standing Committee on Procedure and House Affairs then presented its 27th report on March 21, 2011. On March 25, 2011, the House studied and adopted an opposition motion moved by Michael Ignatieff. Among other things, the motion stated:
That the House agree with the finding of the Standing Committee on Procedure and House Affairs that the government is in contempt of Parliament....
Most of the Standing Committee on Procedure and House Affairs' report had to do with the government's invocation of cabinet confidentiality, which is not the main issue here. Even so, two excerpts from the report are important to the matter at hand:
The first, on page 5 of the report, reads as follows:
He [Robert R. Walsh, House of Commons law clerk and parliamentary counsel] further indicated that the Speaker had concluded in his ruling that Parliament has the right to receive all the information that it requires, but the government may decide to refuse to provide this information. In that event, the government must convince Parliament that its decision is well-founded.
Further on, on page 9, it states:
Mr. Ned Franks, professor emeritus in the Department of Political Studies at Queen's University...affirmed that he sided with Speaker Milliken and declared that, in his view, the government was not entitled to limit Parliament's power to receive information.
As the House accepted the findings of the report on March 25, 2011, it is clear that it also accepted the analysis that preceded it.
Even more recently are developments in the United Kingdom's Parliament, some of which our colleagues may not be fully familiar with. In the 2017 general election, the incumbent Conservative government did not secure a majority in the House of Commons. Although it was able to muster a working majority through a confidence and supply arrangement with one of the Northern Ireland parties, it was the U.K.'s first true minority government in some four decades.
The Labour Party devoted 10 of its opposition days in the first session of Parliament following that election to ordering the production of documents. Half of these motions were defeated by the House, and of the remaining five, four were responded to in a satisfactory manner by the government. It is the fifth motion that earns our attention. It prompted the U.K. House of Commons Procedure Committee to study the matter and issue its ninth report, entitled “The House's power to call for papers: procedure and practice”, in May 2019, which I quoted earlier.
On November 13, 2018, the U.K. House of Commons adopted the following motion, proposed by Sir Keir Starmer, now the leader of the opposition, recorded on pages 1 and 2 of Votes and Proceedings:
That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.
Subsequent events can be summarized by the following extracts from paragraphs 41 to 43 of the U.K. Procedure Committee's 2019 report:
41. Ministers advanced arguments against the motion from the Despatch Box, but did not seek to divide the House. The motion therefore passed unopposed. In points of order raised immediately after the House’s decision, Members sought to clarify the obligations on the Government arising from it: no Ministerial statement was made in response.
42. An agreement between the United Kingdom and the EU on the UK’s withdrawal from the EU was endorsed by heads of state and government at the European Council meeting of 25 November 2018.... On 3 December the Attorney General presented to Parliament a Command Paper which purported to describe the “overall legal effect” of the agreement of 25 November 2018. On the same day he made a statement to the House...neither the Command Paper nor the statement made reference to the resolution of 13 November, and the Command Paper did not purport to be a return to the resolution of the House.
43. Following the presentation of the Government’s Command Paper to the House, Keir Starmer, together with representatives of four other political parties, wrote to the Speaker alleging that the Government had not complied with the terms of the resolution of 13 November.... The Attorney General also wrote to the Speaker with his observations on the matter: he argued that the Government was in considerable difficulty in knowing how to comply with the resolution.
Speaker Bercow ruled, on December 3, 2018, in column 625 of the official report:
The letter that I received from the Members mentioned at the start of this statement asks me to give precedence to a motion relating to privilege in relation to the failure of Ministers to comply with the terms of the resolution of the House of 13 November.... I have considered the matter carefully, and I am satisfied that there is an arguable case that a contempt has been committed. I am therefore giving precedence to a motion to be tabled tonight before the House rises and to be taken as first business tomorrow, Tuesday. It will then be entirely for the House to decide on that motion.
The following day, the House considered such a motion. After defeating the government's amendment by a vote of 307 to 311, the House voted 311 to 293 to adopt the following motion, found on page 3 of Votes and Proceedings:
That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.
In response, the government produced a complete, unredacted copy of the Attorney General's legal advice the next day. According to the Procedure Committee's report, at paragraph 68, the Attorney General “said that he had complied with the order of the House of 4 December out of respect of the House’s constitutional position.”
It is possible for a government to respect the constitutional position of the House of Commons. As I said earlier, in my humble opinion, this government is in contempt of Parliament.
In fact, page 60 of House of Commons Procedure and Practice by Bosc and Gagnon states that:
Any conduct which offends the authority or dignity of the House, even though no breach of any specific privilege may have been committed, is referred to as a contempt of the House. Contempt may be an act or an omission; it does not have to actually obstruct or impede the House or a Member, it merely has to have the tendency to produce such results.
Bosc and Gagnon add the following at page 81:
Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege: tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands....
Among the well-established types of contempt detailed at page 82 of Bosc and Gagnon are the following elements:
...deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House or a committee;
...without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee;
without reasonable excuse, disobeying a lawful order of the House or a committee....
In this case, the government disobeyed a lawful order of the House. It did not provide all the papers formally required and, by redacting others, it deliberately altered, suppressed and concealed papers required to be produced.
As for the government's excuses in its May 2020 response to the special committee's second order, Mr. Stewart wrote:
We share the Committee's interest in ensuring open and public government, in a manner that appropriately protects sensitive information, including national security information. To the end, we note that the National Security and Intelligence Committee of Parliamentarians (NSICOP) was established to review such matters, while ensuring appropriate safeguards. Members of that committee come from both houses of Parliament, hold appropriate security clearances and have express right of access to otherwise restricted information. We would welcome the opportunity to further explore this avenue with you.
Last week, during Tuesday's debate on the order, we heard the same message from the , who often speaks in the House of Commons on behalf of his government, and I know what I am talking about.
On Wednesday, when the answered a question about this in question period, he said:
That is why [Canadians] elect parliamentarians to hold governments to account, but on issues of national security, it is important that there be higher levels of clearance given to parliamentarians who can properly dig into them and ask all the right questions.
It is very important to remember that the government is talking here about a committee of parliamentarians, not a committee of Parliament. That makes all the difference. In fact, subsection 4(3) of the National Security and Intelligence Committee of Parliamentarians Act states: “The Committee is not a committee of either House of Parliament or of both Houses”.
It does not stop there. Section 5 of the act states that the members of the committee are to be appointed by cabinet, on the personal recommendation of the . Section 6 states the same for the chair of the committee.
We are told that the Prime Minister can ask all the appropriate questions. Well, no. Section 8 of the act allows the minister to veto a committee study selection. Section 16 allows the minister to refuse to provide information. So much for transparency.
Still, even if they consult the documents, can they really set the record straight? Once again, the answer is no. Section 21 requires the committee to submit all its reports to the Prime Minister and allows the Prime Minister to censor all such reports before they are released publicly. That is the big difference between this type of committee and other committees of parliamentarians. The Prime Minister has the final say on anything that can be made public. It is not at all the same as a parliamentary committee.
Perhaps Parliament's former principle of freedom of expression, a constitutional principle dating back to 1689, would allow someone to sound the alarm if the Prime Minister is hiding something. Again, no. Subsection 12(2) destroys three centuries of freedom of expression and allows the government to prosecute a committee member who says something the Prime Minister does not want to hear.
The Prime Minister ultimately has the right to veto anything with this organization. The sad truth is that the National Security and Intelligence Committee of Parliamentarians is quite simply a puppet of the government. Speaker Milliken spoke to the use of this puppet in determining how to respond to House orders to produce documents on April 27, 2010, at page 2044 of the Debates:
The government, for its part, has sought to find a solution to the impasse. It has appointed former Supreme Court Justice Frank Iacobucci and given him a mandate to examine the documents and to recommend to the Minister of Justice and Attorney General what could be safely disclosed to the House.
The government has argued that in mandating this review by Mr. Iacobucci, it was taking steps to comply with the order consistent with its requirements to protect the security of Canada's armed forces and Canada's international obligations.
However, several members have pointed out that Mr. Iacobucci's appointment establishes a separate, parallel process outside of parliamentary oversight, and without parliamentary involvement. Furthermore, and in my view perhaps most significantly, Mr. Iacobucci reports to the Minister of Justice; his client is the government.
The Prime Minister's proposal to use the committee he himself composed is neither a reasonable excuse nor even a legitimate reason to defy the House's order of June 2. How can I ask it? Who can judge?
Bosc and Gagnon offer the following in footnote 176 at page 985:
...Speaker Milliken reaffirmed the authority of the House to order the production of papers, and to determine whether any reasons for withholding documents are sufficient.
The U.K. Procedure Committee, in its May 2019 report, concluded at paragraph 16, “The way in which the power [to require the production of papers] is exercised is a matter for the House and not subject to the discretion of the Chair.” That committee commented at paragraph 35 on the means of assessing compliance:
There is no recognised procedure to assess the papers provided to the House as a whole in response to a resolution or order, and no means of appeal against non-compliance, short of raising the issue as a matter of privilege.
Where papers have been provided to a body of the House, compliance has been easier to assess. Select committees in receipt of papers have been able to review the information they have received and to determine whether the House’s instructions have been complied with.
The U.K. Procedure Committee concluded at paragraph 86:
The House alone determines the scope of its power to call for papers. In its consideration of each motion it is able to discern whether an inappropriate or irresponsible use of the power is sought, and whether it is being asked to require the production of information from Ministers on a scale disproportionate to the matter under debate. We expect that in each such case the House will continue to exercise its judgment in favour of a responsible use of the power.
In our current circumstances, the House set up mechanisms to first assess consistence when its order was complied with. Paragraph (a) of last week's order required the document to be referred to the Law Clerk, both for the benefit of an initial judgment as well as to ensure appropriate security, while paragraph (b) has given a means to report.
On the strength of the Law Clerk's initial assessment, it now falls to this House to make a determination whenever the lawful exercise of its power has been satisfied or defied. The House takes its decision through the tried-and-true methods of motions, debates and votes.
That is what I am asking you to permit throughout this question of privilege.
The House had the benefit last Tuesday of hearing from the parliamentary secretary to the government House leader, and then on Wednesday from the himself, on the government's proposed approach. Since these views were put before the House prior to the vote, I would argue that the House had the benefit of considering them and in the end preferred the approach of my friend, the member for . In any event, if you find there is prima facie contempt, the government can always test the will of the House on its alternative approach by proposing an amendment to my motion.
As I said earlier, the House does its best work on these issues when it takes into account various public policy considerations, which of course includes the public interest. In fact, as Speaker Milliken noted at page 2045 of the Debates of April 27, 2010, when he ruled on documents pertaining to Afghanistan, the interests of the executive and the legislature must be considered:
The House has long understood the role of the government as “defender of the realm” and its heavy responsibilities in matters of security, national defence and international relations. Similarly, the government understands the House's undoubted role as the “grand inquest of the nation” and its need for complete and accurate information in order to fulfill its duty of holding the government to account.
That balance is achieved through proper moderation of the House, not through a right of veto exercised by the outside authority. Speaker Milliken clearly explained this concept in the same ruling, this time at page 2043, where it reads:
It is the view of the Chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would in fact jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts. Furthermore, it risks diminishing the inherent privileges of the House and its members, which have been earned and must be safeguarded.
As has been noted earlier, procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of government documents, even those related to national security.
Therefore, the Chair must conclude that it is perfectly within the existing privileges of the House to order production of the documents in question.
Having thus established that it is up to the House to decide how to exercise its power to order the production of papers, how are mechanisms established to ensure a good balance? Pages 986 and 987 of Bosc and Gagnon address the choices available to committees in the following circumstances. They said, and I quote:
In cases where the author of or the authority responsible for a record refuses to comply with an order issued by a committee to produce documents, the committee essentially has three options. The first is to accept the reasons and conditions put forward to justify the refusal; the committee members then concede that they will not have access to the record or accept the record with passages deleted. The second is to seek an acceptable compromise with the author or the authority responsible for access to the record. Normally, this entails putting measures in place to ensure that the record is kept confidential while it is being consulted. These include in camera review, limited and numbered copies, arrangements for disposing of or destroying the copies after the committee meeting, et cetera. The third option is to reject the reasons given for denying access to the record and uphold the order to produce the entire record.
As the House will recall, in the matter of the documents on Afghanistan in 2009-10, the House ordered a series of some 40,000 pages of documents to be produced immediately, in their original, uncensored form, even if their full disclosure would bring harm to Canada and its NATO allies in an armed conflict zone.
In the end, Speaker Milliken reserved his ruling to allow for a motion to be presented for a debate within two weeks, so the parties could find an appropriate balance. In the present case, I would say the appropriate balance was established by the House last week, with the adoption of the opposition motion. As I said, the unredacted documents should not be presented directly to the House, but handed over to the law clerk so he can, pursuant to paragraph (d) of the order of June 2:
confidentially review the documents with a view to redacting information which, in his opinion, could reasonably be expected to compromise national security or reveal details of an ongoing criminal investigation, other than the existence of an investigation....
I would like to point out that treating the law clerk and his office as a trusted intermediary is not unprecedented or unheard of. For example, on October 26, 2020, the House adopted an order for the production of various documents to support the Standing Committee on Health's study on the government's preparedness for and response to the COVID-19 pandemic. These documents were to be submitted to the Office of the Law Clerk, who, pursuant to paragraphs (aa) and (ii) of the order, was to ensure that the documents:
(ii) be vetted for matters of personal privacy information, and national security, and, with respect to [vaccine documents], be additionally vetted for information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations between the Government of Canada and a third party....
Once the approval was given, he was to submit them for tabling, as the June 2 order also called for. It was my understanding that on May 28, the law clerk submitted 14 sets of records representing approximately 6,271 documents for tabling. Although I have heard that there are still about 2,000 documents to be vetted and translated, in addition to the many documents that the government still needs to produce, this agreement that we voted on and adopted seems to be working.
On November 19, 2020, the Standing Committee on Finance agreed to have the law clerk examine a less redacted version of the documents that had been submitted to the committee in the previous Parliament during the initial study of the Liberal Party's WE Charity scandal.
As I mentioned earlier, the Special Committee on Canada-China Relations sought assistance from the law clerk. I want to share a quote from the law clerk's appearance before the special committee on March 31. On page 9 of the committee evidence, he states the following:
In terms of national security and other grounds, my office acts essentially as the department of justice for the legislative branch and we provide legal services and legal advice to committees on all of their areas of law, including all of those potential grounds for confidentiality that committees and/or the House may decide to accept or not accept. We are prepared and able to provide that legal advice in the interpretation of those concepts, including national security, commercial sensitivity and so on.
That said, there may well be some factual information and knowledge that the government or other entities have that we don't have, because it's their information and their concerns, and they may be well placed to share that with us with regard to proposed redactions or proposed areas of concern. That's certainly something the committee can consider, namely, to have my office provide you with advice on the scope and application of those grounds, but not preventing the government or any witness from proposing and raising a concern—albeit, with this committee, and ultimately the House, still having the last word on accepting or not that interpretation.
Once the documents have been produced, pursuant to the order made on June 2, the law clerk informs the special committee of the redacted information without disclosing any sensitive information so that the committee members understand the issues.