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View Peter Milliken Profile
Lib. (ON)
I am now prepared to rule on the question of privilege raised on March 18, 2010, by the hon. member for Scarborough—Rouge River, the hon. member for St. John's East and the hon. member for Saint-Jean concerning the order of the House of December 10, 2009, respecting the production of documents regarding Afghan detainees.
I would like to thank those three members raising these issues. I would also like to thank the hon. Minister of Justice and Attorney General of Canada, the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons, the hon. House Leader of the Official Opposition, and the hon. members for Toronto Centre, Joliette, Windsor—Tecumseh, Yukon, Toronto—Danforth, Outremont and Kootenay—Columbia for their interventions on this important matter on March 18, 25, and 31, and on April 1 and 12, 2010.
The facts that have led the House, and the Chair, to be seized of this case are the following:
On February 10, 2009, the House recreated the Special Committee on the Canadian Mission in Afghanistan. This committee conducted its business in the usual way and began, in the fall of that year, to seek information from the government on the treatment of Afghan detainees.
On November 27, 2009, the committee reported to the House what it considered to be a breach of its privileges in relation to its inquiries and requests for documents.
On December 10, 2009, the House adopted an order for the production of documents regarding Afghan detainees.
On December 30, 2009, the session in which this order was adopted was prorogued.
On March 3, 2010, when the present session began, the Special Committee was re-constituted and resumed its work. Since Orders of the House for the production of documents survive prorogation, the House Order of December 10, 2009, remained in effect.
On March 5, 2010, the Minister of Justice rose in the House to announce that the government had appointed former Supreme Court Justice Frank Iacobucci to undertake “an independent, comprehensive and proper review of the documents at issue”.
The minister described Mr. Iacobucci's mandate in relation to the order of December 10, 2009 specifying that the former justice would report to him.
On March 16, 2010, the Leader of the Government in the House of Commons tabled the specific terms of reference for Mr. Iacobucci.
On March 18, 2010, three members raised questions of privilege related to the order of December 10, 2009. A number of other members also contributed to the discussion.
On March 25, 2010 and again on April 1 and 26, 2010 the government tabled a large volume of documents regarding Afghan detainees “without prejudice” to the procedural arguments relating to the order of December 10, 2009.
On March 25 and April 1 the Chair also heard interventions from members.
On March 31, 2010 the government responded to the arguments made in relation to the questions of privilege raised on March 18, 2010.
Last, on April 1, and again on April 12, 2010, the Chair heard arguments on the questions of privilege from several members, took the matter under advisement and undertook to return to the House with a ruling.
Before addressing the arguments brought forward, I want to take this opportunity to remind members of the role of the Chair when questions of privilege are raised.
House of Commons Procedure and Practice, second edition, O'Brien and Bosc, at page 141 states:
Great importance is attached to matters involving privilege. A Member wishing to raise a question of privilege in the House must first convince the Speaker that his or her concern is prima facie (on the first impression or at first glance) a question of privilege. The function of the Speaker is limited to deciding whether the matter is of such a character as to entitle the Member who has raised the question to move a motion which will have priority over Orders of the Day; that is, in the Speaker's opinion, there is a prima facie question of privilege. If there is, the House must take the matter into immediate consideration. Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.
As Speaker, one of my principal duties is to safeguard the rights and privileges of members and of the House. In doing so, the Chair is always mindful of the established precedents, usages, traditions and practices of the House and of the role of the Chair in their ongoing evolution. It is no exaggeration to say that it is a rare event for the Speaker to be seized of a matter as complex and as heavy with consequence as the matter before us now.
Because of the complexity of the issues that have been raised, and the large number of lengthy interventions made by hon. members, I have taken the liberty of regrouping the issues thematically in order to address the arguments presented more effectively.
The main and most important issue that the Chair must address today concerns the right of the House to order production of documents, including the nature of the right, questions related to the extent of the right and the manner in which the right can or ought to be exercised. All members who have intervened on these matters of privilege have touched on these fundamental questions in one way or another. In addition, the Chair has been asked to determine whether or not the order has been complied with, and if not, whether this constitutes, prima facie, a contempt of the House.
A second matter before the Chair is the contention—made primarily by the member for Scarborough—Rouge River—that witnesses were intimidated by answers given in Question Period by the Minister of National Defence and that a letter written by an official from the Department of Justice was contemptuous of the House in setting out for potential witnesses a false basis for refusing to answer questions in a committee of this House.
Arguments were also made in relation to a third theme, namely the form, clarity and procedural validity of the December 10 order of the House. These issues arose when the Parliamentary Secretary to the Leader of the Government in the House of Commons contended on March 31, 2010, that the order of December 10 was fatally flawed in that it seeks documents that he claims can only be obtained by way of an Address to the Governor General. Related issues were brought to the Chair’s attention on the same day by the Minister of Justice, who stated, at page 1225 of the Debates:
Mr. Speaker, as you will recall, the December order called for uncensored documents. It listed eight different categories of documents to be produced. The order did not specify exactly when such documents should be produced, who should produce them or to whom they should be produced. The order made no reference to the confidential information being protected...
The fourth theme that the Chair wishes to address concerns the issue of accommodation and trust which a number of members on both sides of the House have raised. Several members have made reference to the need to safeguard confidential information that, in the words of the Minister of Justice, as found at page 7881 of the Debates of December 10, 2009, “if disclosed, could compromise Canada's security, national defence and international relations”. More significantly, a number of members have indicated that they wish to find a way to accommodate the desire of the House for information while also accommodating the desire of the government to protect sensitive information.
The first arguments the Chair wishes to address are those related to the form, clarity and procedural validity of the December 10 order.
The Minister of Justice has called into question the clarity of the order. On reading the order, it is abundantly clear to the Chair that it is the government that is expected to produce the documents demanded, and that in the absence of instructions to the contrary, the documents are to be tabled in the House in the usual manner. In this sense the minister and the parliamentary secretary are correct in asserting that no provision is made in the order for confidential treatment of the material demanded. The Chair will return to this aspect of the question later in this ruling.
As to when the material is to be tabled, the order says very clearly “forthwith”. House of Commons Procedure and Practice, Second Edition, at page 475 states:
...if the House has adopted an Order for the production of a document, the Order should be complied with within a reasonable time. However, the Speaker has no power to determine when documents should be tabled.
As to the procedural validity of the order, as well as its form, the Chair wishes to draw the attention of the House to Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, which states at pages 245 and 246:
Previous to the session of 1876, it was customary to move for all papers by address to the Governor General, but since that time the regular practice of the English houses has been followed. It is now the usage to move for addresses only with respect to matters affecting imperial interests, the royal prerogative or the Governor in Council. On the other hand, it is the constitutional right of either House to ask for such information as it can directly obtain by its own order from any department or officer of the government...papers may be directly ordered when they relate to canals and railways, post office, customs, militia, fisheries, dismissal of public officers, harbours and public works and other matters under the immediate control and direction of the different departments of the government.
As this passage makes clear, an order is issued when seeking papers that fall under the “immediate control and direction of the different departments of the government”. As an example, in the case of the documents related to the Chief of the Defence Staff referred to by the parliamentary secretary, it is simply not credible to claim that these documents are not under the control of the government.
The parliamentary secretary has referred to certain rulings of my predecessors in making his arguments and has also provided additional material in support of his contention. The Chair has examined these precedents—a ruling from 1959 by Mr. Speaker Michener and a ruling from 1982 by Madam Speaker Sauvé—but is not convinced that they directly support the particular circumstances faced by the House in this case.
A further point to be made on this issue has to do with the documents tabled “without prejudice” so far by the government in response to the order of December 10. The Chair wishes to point out that of the documents tabled, several appear to fall into the categories which the parliamentary secretary claims require an address before they can be produced. In addition, the fact that these documents have been tabled has been cited by the government as a gesture of good faith on its part and an indication that it is complying, to the extent that it feels it can, with the order of December 10.
Finally, as the member for St. John's East noted, in response to objections raised at the time debate was commencing on the original motion, a decision was rendered that the motion was in order. Consequently, the House went on to debate and decide the matter: the House has expressed its will, and that is where the matter now stands.
I have considered the arguments put forward, and for the reasons stated above, the Chair concludes that it was procedurally acceptable for the House to use an order and not an address to require the production of these documents.
The Chair will now turn to the allegations related to witness intimidation. The member for Scarborough—Rouge River has contended that the comments made by the Minister of National Defence in reply to a question during oral questions on December 1, 2009, amounted to intimidation. He argued that the minister's contention that the documents in question could be released to the Special Committee on the Canadian Mission in Afghanistan only under the provisions of the Canada Evidence Act was wrong and misleading, obstructed the House and intimidated witnesses, especially armed forces personnel and public servants, thereby lessening the likelihood of their compliance with House requests and orders.
The hon. member for Scarborough—Rouge River also took exception to a December 9, 2009, letter to the Law Clerk and Parliamentary Counsel of the House from an Assistant Deputy Minister from the Department of Justice on the obligations of witnesses before committees, and on the obligation to provide documents ordered by committees. He argued that the letter constituted a contempt of the House by setting out for witnesses a false basis for refusing to provide disclosure to the House or its committees after being ordered to do so. In particular, the member for Scarborough—Rouge River stressed that if the contents of the letter were crafted with ministerial approval, it could constitute a conspiracy to undermine Parliament and the ability of the House to carry on its constitutional functions.
The government responded that the remarks made by the Minister of National Defence were simply matters of debate and differences of opinion between members. Of the second complaint, the government took the view that the letter from the justice official constituted nothing more than an exchange of views between legal professionals and it could not be construed as “an attempt to intimidate the government witnesses”.
The hon. member for Scarborough—Rouge River had argued that the minister's reply constituted a slander of Parliament's core powers to hold the government to account and thus was a contempt. However, particularly since this exchange between the minister and the member for Vancouver South occurred during question period, I find that I must agree with the parliamentary secretary's characterization of this exchange as a matter of debate.
I have no need to remind the House that freedom of speech is one of our most cherished rights. Although members may disagree with the comments made by the minister, I cannot find that the minister's words in and of themselves constitute witness intimidation, hence nor do they constitute a prima facie contempt of the House.
As for the member for Scarborough—Rouge River's other concern regarding the letter from the assistant deputy minister, the procedural authorities are clear that interference with witnesses may constitute a contempt. House of Commons Procedure and Practice, Second Edition, at page 1070, states: “Tampering with a witness or in any way attempting to deter a witness from giving evidence may constitute a breach of parliamentary privilege.”
It is reasonable to assume that a letter signed by an assistant deputy minister, acting under the authority of the Minister of Justice, is an expression of the government’s view on an issue, and given that its contents have been widely reported and circulated, the letter could leave the impression that public servants and government officials cannot be protected by Parliament for their responses to questions at a parliamentary committee, when this is not the case.
Specifically, I would like to draw to the attention of hon. members the section of the letter in question, which the member for Scarborough—Rouge River tabled in the House on March 18, 2010, where the assistant deputy minister lays out a view of the duties of public servants in relation to committees of the House. The letter states:
Of course, there may be instances where an Act of Parliament will not be interpreted to apply to the Houses of Parliament (or their committees). However, that does not mean automatically that government officials—who are agents of the executive, not the legislative branch—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 is so even if a parliamentary committee, through the exercise of parliamentary privilege, may extend immunity to witnesses appearing before it. A parliamentary committee cannot waive a legal duty imposed on government officials. To argue to the contrary would be inimical to the principles of the rule of law and parliamentary sovereignty. A parliamentary committee is subordinate, not superior, to the legislative will of Parliament as expressed in its enactments.
It does concern me that the letter of the assistant deputy minister could be interpreted as having a “chilling effect” on public servants who are called to appear before parliamentary committees, as contended the members for Scarborough—Rouge River and Toronto Centre. This could be especially so if the view put forth in the letter formed the basis of a direction given by department heads to their employees who have been called to testify before parliamentary committees.
At the same time, it is critically important to remember in this regard that our practice already recognizes that public servants appearing as witnesses are placed in the peculiar position of having two duties. As House of Commons Procedure and Practice, Second Edition, states at pages 1068 and 1069:
“Particular attention is paid to the questioning of public servants. The obligation of a witness to answer all questions put by the committee must be balanced against the role that public servants play in providing confidential advice to their Ministers. ...In addition, committees ordinarily accept the reasons that a public servant gives for declining to answer a specific question or series of questions which....may be perceived as a conflict with the witness’ responsibility to the Minister....”
The solution for committees facing such situations is to seek answers from those who are ultimately accountable, namely, the ministers themselves.
It has been argued that there may be a chilling effect, which could come dangerously close to impeding members of committees in carrying out their duties; however, I remind the House that this letter was sent to our Law Clerk, so on balance, I would need to see the use made of this letter, in particular whether it was ever presented to a person who was scheduled to testify before the special committee with the intent of limiting the person's testimony.
As things stand, there does not appear to the Chair to be sufficient evidence for me to conclude that this letter constitutes a direct attempt to prevent or influence the testimony of any witness before a committee, and for these reasons, I cannot find that there is a prima facie question of contempt on this point.
I now turn to the questions of the House's right to order the production of documents and the claim that the government has failed to comply with the order of the House.
The hon. member for Kootenay--Columbia argued that even if the documents were provided to the committee, the committee could not, given their sensitive nature, make use of them publicly. However, I cannot agree with his conclusion that this obviates the government's requirement to provide the documents ordered by the House. To accept such a notion would completely undermine the importance of the role of parliamentarians in holding the government to account.
Before us are issues that question the very foundations upon which our parliamentary system is built. In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and in fact an obligation.
Embedded in our Constitution, parliamentary law and even in our Standing Orders, it is the source of our parliamentary system for which other processes and principles necessarily flow, and it is why that right is manifested in numerous procedures of the House, from the daily question period to the detailed examination by committees of estimates, to reviews of the accounts of Canada, to debate, amendments, and votes on legislation.
As I noted on December 10, 2009, House of Commons Procedure and Practice, Second Edition, states at page 136:
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.
And on pages 978 to 979:
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....
No statute or practice diminishes the fullness of the 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.
Further, at page 70, Bourinot's 4th edition states:
The Senate and House of Commons have the right, inherent in them as legislative bodies, to summon and compel the attendance of all persons, within the limits of their jurisdiction, as witnesses, and to order them to bring with them such papers and records as may be required for the purpose of an inquiry.
In the arguments presented, the Chair has heard this power described as unabridged, unconditional, unqualified, absolute and, furthermore, one which is limited only by the discretion of the House itself. However, this view is not shared by all and so it is a privilege whose limits have now been called into question.
The government's view is that such an unqualified right does not exist for either House of Parliament or their committees. The executive, the holder of the sensitive information sought by the House, has competing obligations. On the one hand, it recognizes that there is an expectation of transparency so that government actions can be properly monitored to ensure that they respect the law and international agreements. On the other hand, the government contends that the protection of national security, national defence and international relations demand that some information remain secret and confidential, out of the reach of those obliged to scrutinize its actions and hold it to account.
In his March 31 intervention, the Minister of Justice quoted from the 1887 parliamentary treatise of Alpheus Todd to support the view that “a due regard to the interests of the State, occasionally demand...that information sought for by members of the legislature should be withheld, at the discretion and upon the general responsibility of ministers”.
The minister also cited Bourinot in 1884, observing that the government may “feel constrained to refuse certain papers on the ground that their production would be...injurious to the public interest”. Had he read a little further, he might have found the following statement by Bourinot at page 281:
But it must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses.
As the members for Saint-Jean and Joliette commented on March 25, 2010, Bourinot’s Second Edition notes that even in instances where a minister refuses to provide documents that are requested, it is clear that it is still ultimately up to the House to determine whether grounds exist to withhold documents.
Bourinot, in referring to procedures for notices of motions for production of papers, wrote at pages 337 and 338:
Consequently, there are frequent cases in which the ministers refuse information, especially at some delicate stage of an investigation or negotiation; and in such instances the house will always acquiesce when sufficient reasons are given for the refusal...But it must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient.
Joseph Maingot’s Parliamentary Privilege in Canada, Second Edition, also supports the need for Parliament to have a voice in these very matters when it states at page 190:
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.
Similarly, in Erskine May, 23rd edition, in a discussion of the exclusive cognizance of proceedings at page 102, we find the following:
...underlying the Bill of Rights [1689] is the privilege of both Houses to the exclusive cognizance of their own proceedings. Both Houses retain the right to be sole judge of the lawfulness of their own proceedings, and to settle—or depart from—their own codes of procedure. This is equally the case where the House in question is dealing with a matter which is finally decided by its sole authority, such as an order or resolution, or whether (like a bill) it is the joint concern of both Houses.
In David McGee's Parliamentary Practice in New Zealand, second edition, at page 621 he asserts, “The Australian legislation”, referring to the Parliamentary Privileges Act, 1987, “in respect of article 9 of the Bill of Rights...may be taken to indicate the types of transactions falling within the term 'proceedings of Parliament'”
He then goes on to state that such proceedings to which privilege attaches include “...the presentation of a document to a House or a committee...”.
Odgers' Australian Senate Practice, 12th edition, at page 51 states clearly:
Parliamentary privilege is not affected by provisions in statutes which prohibit in general terms the disclosure of categories of information....
Statutory provisions of this type do not prevent the disclosure of information covered by the provisions to a House of the Parliament or to a parliamentary committee in the course of a parliamentary inquiry.... They...do not prevent committees seeking the information covered by such provisions or persons who have that information providing it to committees.
In light of these various authorities, the Chair must conclude that the House does indeed have the right to ask for the documents listed in the order of December 10, 2009.
With regard to the extent of the right, the Chair would like to address the contention of the Minister of Justice, made on March 31, that the order of the House of December 10 is a breach of the constitutional separation of powers between the executive and the legislature.
Having noted that the three branches of government must respect the legitimate sphere of activity of the others, the minister argued that the order of the House was tantamount to an unlawful extension of the House's privileges. This can only be true if one agrees with the notion that the House's power to order the production of documents is not absolute. The question would then be whether this interpretation subjugates the legislature to the executive.
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. Bearing in mind that the fundamental role of Parliament is to hold the government to account, as the servant of the House and the protector of its privileges, I cannot agree with the government's interpretation that ordering these documents transgresses the separation of powers and interferes with the spheres of activity of the executive branch.
But what of the House’s responsibility regarding the manner in which this right can or ought to be exercised? The authorities cited earlier all make reference to the long-standing practice whereby the House has accepted that not all documents demanded ought to be made available in cases where the Government asserts that this is impossible or inappropriate for reasons of national security, national defence or international relations.
O’Brien and Bosc, at page 979, states: “—it may not be appropriate to insist on the production of papers and records in all cases.”
The basis for this statement is a 1991 report by the Standing Committee on Privileges and Elections, which, as recorded on page 95 of the Journals of May 29, 1991, pointed out:
The House of Commons recognizes that it should not require the production of documents in all cases; considerations of public policy, including national security, foreign relations, and so forth, enter into the decision as to when it is appropriate to order the production of such documents.
In his comments on this aspect of the matter before us, the Parliamentary Secretary to the Leader of the Government in the House of Commons referred to my ruling of June 8, 2006, where I stated that national security, when asserted by a minister, was sufficient to set aside a requirement to table documents cited in debate. The examples cited by the parliamentary secretary related strictly to documents that have been cited by a minister in the absence of any other explicit expression of interest by the House in the said documents.
Having reviewed the June 8 ruling, it is clear to the Chair that there is a difference between the practice of the House which allows a minister, on the sole basis of his or her judgment, to refrain from tabling a cited document for reasons of confidentiality and national security, and an order, duly adopted by the House following notice and debate, requiring the tabling of documents.
Another important distinction between the order adopted by the House on December 10, 2009, and the practice respecting notices of motions for the production of papers, referred to by the member for St. John's East on April 12 is that, with respect to such notices, there is an opportunity for a minister or parliamentary secretary to indicate to the House that the notice is acceptable to the government subject to certain reservations, such as confidentiality, or national security.
Thus the House, prior to the adoption of the motion, is fully aware that some documents will not be produced if the motion is adopted. If the House does not agree, the motion must either be transferred for debate or be put immediately to the House without debate or amendment.
Something similar happened on December 10, 2009. Before the House voted on the motion that became an order to produce documents, the ministers of justice, national defence and foreign affairs all rose in the House to explain the reasons why the documents in question should not be made available. This is in keeping with what Bourinot refers to as the government's responsibility to provide “reasons very cogent” for not producing documents.
Under normal circumstances, reflecting on past history in the House, these assertions by the government might well have been found to be acceptable by the House. In the current circumstances, however, the reasons given by the government were not found to be sufficient. The House debated the matter and voted to adopt an order for the production of documents despite the request of the government.
The reason for this, it seems, has to do with the issue of accommodation and trust. On December 10, 2009, as found on page 7877 of the Debates, I stated:
It is unfortunate, if I may make this comment, that arrangements were not made in committee to settle this matter there, where these requests were made and where there might have been some agreement on which documents and which format would be tabled or made available to members. How they were to be produced or however it was to be done, I do not know, but obviously that has not happened.
Several members have made the point that there are numerous ways that the documents in question could have been made available without divulging state secrets and acknowledged that all sides in the House needed to find a way to respect the privileges and rights of members of Parliament to hold the government to account, while at the same time protecting national security.
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.
View Peter Milliken Profile
Lib. (ON)
The authorities I have cited are unanimous in the view of the House's privilege to ask for the production of papers and many go on to explain that accommodations are made between those seeking information and those in possession of it to ensure that arrangements are made in the best interests of the public they both serve.
Certainly from the submissions I have heard, it is evident to the Chair that all members take seriously the sensitive nature of these documents and the need to protect the confidential information they contain.
The Chair must conclude that it is within the powers of the House of Commons to ask for the documents sought in the December 10 order it adopted. Now it seems to me that the issue before us is this: Is it possible to put in place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain? In other words, is it possible for the two sides, working together in the best interests of the Canadians they serve, to devise a means where both their concerns are met? Surely that is not too much to hope for.
The member for Toronto Centre has made a suggestion, as recorded on page 615 of the Debates of March 18, 2010:
What we believe can be done is not beyond the ability of the House. It is done in many other parliaments. Indeed, there are circumstances under which it has even been done in this House. It is perfectly possible for unredacted documents to be seen by members of Parliament who have been sworn in for the purpose of looking at these documents.
O'Brien and Bosc, at page 980, points to ways of seeking a compromise for members to gain access to otherwise inaccessible material:
Normally, this entails putting measures in place to ensure that the record is kept confidential while it is being consulted: in camera review, limited and numbered copies, arrangements for disposing of or destroying the copies after the committee meeting, et cetera.
In some jurisdictions, such as the Legislative Council in the Australian state of New South Wales, and I would refer members to New South Wales Legislative Council Practice by Lovelock and Evans at page 481, mechanisms have been put in place, which satisfy the confidentiality concerns of the government as well as those of the legislature. Procedures provide for independent arbiters, recognized by both the executive and the legislature, to make determinations on what can be disclosed when a dispute arises over an order for the production of documents.
Finding common ground will be difficult. There have been assertions that colleagues in the House are not sufficiently trustworthy to be given confidential information, even with appropriate security safeguards in place. I find such comments troubling. The insinuation that members of Parliament cannot be trusted with the very information that they may well require to act on behalf of Canadians runs contrary to the inherent trust that Canadians have placed in their elected officials and which members require to act in their various parliamentary capacities.
The issue of trust goes in the other direction as well. Some suggestions have been made that the government has self-serving and ulterior motives for the redactions in the documents tabled. Here too, such remarks are singularly unhelpful to the aim of finding a workable accommodation and ultimately identifying mechanisms that will satisfy all actors in this matter.
But the fact remains that the House and the government have, essentially, an unbroken record of some 140 years of collaboration and accommodation in cases of this kind. It seems to me that it would be a signal failure for us to see that record shattered in the third session of the 40th Parliament because we lacked the will or the wit to find a solution to this impasse.
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.
Examples have been cited of mechanisms that might satisfy the competing interests of both sides in this matter. In view of the grave circumstances of the current impasse, the Chair believes that the House ought to make one further effort to arrive at an interest-based solution to this thorny question.
Accordingly, on analyzing the evidence before it and the precedents, the Chair cannot but conclude that the government's failure to comply with the order of December 10, 2009, constitutes prima facie a question of privilege.
I will allow House leaders, ministers and party critics time to suggest some way of resolving the impasse, for it seems to me we would fail the institution if no resolution can be found. However, if in two weeks' time, the matter is still not resolved, the Chair will return to make a statement on the motion that will be allowed in the circumstances.
In the meantime, of course the Chair is disposed to assist the House in any way it can, and I am open to suggestions on any particular role that I as your Speaker can play.
I thank the House for its attention.
View Claude Bachand Profile
BQ (QC)
View Claude Bachand Profile
2010-04-01 10:25 [p.1244]
Mr. Speaker, yesterday, I listened carefully to what the parliamentary secretary to the government House leader and the Minister of Justice had to say about the question of privilege I raised concerning the December 10, 2009 motion.
I would first like to respond to a point raised by the parliamentary secretary. He claims that the government does not have to comply with the motion of December 10, 2009, because it is not an address. He quoted from page 1121 of O'Brien-Bosc to support his claim. I would like to quote another passage from the same page:
It is the responsibility of the Speaker to ensure that the motion proposed is appropriately worded so that it can achieve what it intends to do.
On December 10, 2009, which was a Liberal opposition day, the House debated and adopted an order to produce papers. Early that day, the parliamentary secretary to the government House leader tried to have that motion ruled out of order, without ever saying that it was improperly drafted.
When you ruled on the issue on December 10, 2009, you even talked about the scope of Parliament's power to obtain documents, and you quoted the following passage from pages 978 and 979 of O'Brien-Bosc:
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.
...
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.
By bringing forward new arguments, the parliamentary secretary to the leader of the government is trying to have the motion ruled out of order and inoperative after the fact.
He concluded his speech by needlessly stating that you cannot unilaterally change the wording of a motion once it has been adopted by the House. That goes without saying.
But it also goes without saying that you cannot rule a motion out of order and inoperative once it has been adopted by the House, especially almost four months later.
If the parliamentary secretary wanted to argue about the wording of the December 10 motion, he should have done so before it was passed. But, he did not do that.
And now, I would like to briefly respond to the Minister of Justice's arguments. The minister is saying, first, that there is no prima facie question of privilege and that the government has taken the necessary measures to provide the documents requested.
In saying that there has been no prima facie breach of privilege, the minister is claiming that the members have not been prevented from doing their jobs.
I believe that the minister is asking the wrong question. Obviously I raised a question of privilege, but that was to bring your attention to a situation which is related to contempt of Parliament.
In this case, there are two questions: is there a House order related to producing documents? And is the government, acting through the ministers who have these documents, refusing to comply with this order?
This debate over whether the members have been kept from doing their jobs is not pertinent in this matter. If you were to decide that it is pertinent, it seems to me that members are being prevented from doing their jobs.
The majority of members agreed that the House should pass an order to produce documents so they could have access to the necessary information and hold the government accountable on the Afghan detainee issue. The members still do not have access to these documents and, consequently, are unable to do their jobs.
Lastly, the minister alleged that the matter of which documents should be made available to Parliament was debatable, thereby demonstrating his complete lack of understanding of the role of this House. The fact is that the government must be accountable to Parliament. Parliament has broad powers and the means to compel the government to respect those powers and deliver accountability.
During my last interventions, I discussed at length the House's power to compel the government to produce documents. I quoted a number of authorities to support my argument, and I will not revisit that today.
The matter before the Chair today is fundamental. This is not just a difference of opinion or an issue up for debate. This is about preserving Parliament's power to hold the government to account. Subordinating Parliament's power to the government's whims regarding information it provides to Parliament is the same as subjugating legislative powers to executive powers. This is not a matter for debate. This is about ensuring that the House can play the part assigned to it by the Constitution.
I am not a fool. The two statements we heard yesterday, which came two weeks after the point of privilege was raised in the House, are nothing but another government delay tactic. No matter what the Minister of Justice says, the government is not acting in good faith on this issue. It has used every parliamentary tactic available to prevent the opposition from getting to the bottom of things on the Afghan detainee file.
I think that we have heard all of the arguments on this subject. That is why I urge you, Mr. Speaker, to rule as quickly as possible on these issues.
View Jack Harris Profile
NDP (NL)
View Jack Harris Profile
2010-04-01 10:31 [p.1245]
Mr. Speaker, we heard a very long presentation yesterday by the Minister of Justice and some remarks by the parliamentary secretary to the government House leader. To give those arguments their due, I would want to have some time to respond. I do say that I agree principally with what has been said by the member for Saint-Jean. You have already ruled that the order itself that was before the House was in order and the references that you made there to the powers of Parliament are sufficient to deal with the issue. I will say also that the powers that Parliament does have in the reference given there are very broad, extremely broad, and only require explicit limitation in order to be limited.
The question before you I think is rather simple; that is, whether or not on the face of it, prima facie, there was a violation of that order. I think it is fairly obvious that there was.
I do want to say that because a substantial list of references was made in the remarks, particularly in the speech by the Minister of Justice and Attorney General of Canada, I would not want to limit my argument to simply saying that this is a very basic question. I would want to be able to give a detailed response to the references that were given and make a more lengthy and cogent argument when we return after the Easter break.
Having said that, I would ask for indulgence to do that and make a more full argument when we come back.
View Tom Lukiwski Profile
CPC (SK)
Mr. Speaker, I am rising on the same point of order.
While I applaud our hon. friend, the member for Kings—Hants, for offering an apology, I should point out that I do not think that resolves the situation.
I would point out a most recent ruling that you made, Mr. Speaker, on a question of privilege brought forward by the member for Sackville—Eastern Shore, at which time he indicated that a ten percenter had been sent into his riding under the name of the member for Saskatoon—Wanuskewin.
When the member for Saskatoon—Wanuskewin made a heartfelt apology in this House, he indicated that while a ten percenter did indeed go into the member's riding and contained inaccurate information, the content of that ten percenter had in fact been written by a staff member, not by the member himself.
In your ruling, Mr. Speaker, you still found a prima facie case on a breach of privilege, even though it was admitted, both by the member for Sackville—Eastern Shore and by the member for Saskatoon—Wanuskewin, that the member for Saskatoon--Wanuskewin was not responsible for the literature itself. It was written by someone else. I believe, Mr. Speaker, you would find in your ruling, even though this was perhaps implied rather than stated verbally, that members are responsible for their staff.
Mr. Speaker, I would just ask that you apply the same reasoning in your determination of the breach of privilege brought forward by the member for Sackville—Eastern Shore to this case, because, quite clearly, the reputation of my colleague from Saskatoon—Humboldt has been tarnished. This Facebook posting is definitely injurious to my colleague's reputation. It implies to his constituents that he was not working on their behalf and that he was asleep during a committee meeting. While I can appreciate the fact that the member for Kings—Hants may not have taken the photograph himself, his staff member did and he is responsible for his staff member.
I would urge you, Mr. Speaker, to find, as you did in the case of the member for Sackville—Eastern Shore, that there is a prima facie case for breach of privilege in this instance.
View Derek Lee Profile
Lib. (ON)
View Derek Lee Profile
2010-03-18 10:30 [p.609]
I choose my words very carefully. This letter from the assistant deputy minister, Department of Justice, breaches the privileges of the House by, in effect, laying for witnesses a false basis for refusing to provide disclosure to the House or its committees after being ordered to do so.
These contemptuous suggestions are found in paragraph 4 on page 2 of the letter. They read:
Of course, there may be instances where an Act of Parliament will not be interpreted to apply to the Houses of Parliament (or their committees). However, that does not mean automatically that government officials—who are agents of the executive, not the legislative branch—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 is so even if a parliamentary committee, through the exercise of parliamentary privilege, may extend immunity to witnesses appearing before it. A parliamentary committee cannot waive a legal duty imposed on government officials.
I feel like reading it again, but the record will stand. This is a clear indication that public servants, government officials and probably even the public cannot be protected by Parliament if they respond to questions at a parliamentary committee.
To me, these words are sad and shocking coming from the Department of Justice and the legal advisers to the Crown. In my view, they undermine the entire structure of parliamentary accountability and the constitutional law I have already outlined.
I am going to give three citations to the House that articulate the powers of the House with reference to the possibility that other public statutes may appear to get in the way. The first is Maingot, second edition, page 20. It states:
...a privilege may not be diminished, prejudicially affected, or repealed save by express statutory enactment to that effect.
Second, Beauchesne, 4th edition, page 96 states:
No general statute or order in council can override the privileges, immunities and powers of the Commons. As the prerogatives of the Crown can only be given away or delegated to others by the consent of the Crown stated in express terms, so the rights, privileges and immunities of the House of Commons cannot be taken away by implication or by vague terms of any statute, but only by the express words of the law or by the express resolution of the House.
In this particular case, House of Commons v. Canada Labour Relations Board, [1986] 2 F. C. 376, the Federal Court of Appeal held that it is a well established principle that an express provision of a statute is necessary to abrogate a privilege of Parliament or its members.
The problem here is not just the assistant deputy minister of justice's being wrong and fully disregarding any reference to parliamentary law and Parliament's constitutional purpose, but it actually describes that government officials would not be absolved from respecting statutory duties if required to testify before a committee.
These are not the words of an ordinary citizen over the counter at Tim Hortons. These are the words and pronouncements, the position, of the Department of Justice over the hand of the assistant deputy minister for the public law sector.
These and other words in this letter show no knowledge or regard for the law of this institution and betray on the part of the department a shocking and unprofessional ignorance of parliamentary law, and that law binds our democracy together. If these words were crafted with others and with ministerial approval, in my view it would constitute a conspiracy to undermine Parliament and the ability of the House to carry on its constitutional functions.
Either way, in simple ignorance or with subversive intent, this document over the hand of the assistant deputy minister of justice constitutes a contempt and cannot be allowed to stand under our Constitution.
I gave written and polite notice of my concern over this opinion to the assistant deputy minister on January 27. There was a polite reply, although it was not a substantive reply.
On the issue of obstruction, I am going to provide three very quick citations on the matter of obstruction of witnesses. The first, and colleagues will forgive me for going back so far in history, is from the year 1700, from the United Kingdom House of Commons, Westminster. It reads:
...that if it shall appear that any person hath been tampering with any Witness, in respect of his evidence to be given to this House, or any Committee thereof, or directly or indirectly hath endeavoured to deter or hinder any person from appearing or giving evidence, the same is declared to be a high crime and misdemeanour; and this House will proceed with the utmost severity against such offender.
That is from the United Kingdom's Journal of the House of Commons, February 21, 1700, volume 13, page 350.
Second, I will bring it a little bit further into the present. This is from Erskine May, 21st edition, page 131:
Any conduct calculated to deter prospective witnesses from giving evidence before either House or a committee is a contempt.
Just to be really precise about this, here is a third quote, from Erskine May, same volume, page 132:
This matter was considered in 1935 by a committee of the Commons which reported that, in its opinion, it was a breach of privilege to give any advice to a witness which took the form of pressure or of interference with his freedom to form and express his own opinions honestly in the light of all the facts known to him; and the House resolved that it agreed with the committee in its report.
The proceedings in 1991 in the justice committee and in this House involving the persons known as Légère and Gingras may for some have raised at that time arguably legitimate questions as to the extent of the power to send for persons, papers and records. Speaker Fraser seems to have allowed for that, notwithstanding his clear 1987 words referred to earlier.
At this time, 18 years later, following the report of the committee that reviewed that subpoena power, the unanimous House order to the government to turn over the unexpurgated documents to the justice committee at that time, the 1999 publication of a book here on this very subject, and the publication of two editions of House of Commons Procedure and Practice, there are no uncertainties, in my view, or questions unanswered.
There is no unclear law as to the powers of the House and its committees.
I would like to reuse, with some licence, the dictum, “There are none so blind as those who will not see, read or learn”. Those who purport to govern and administer Canada must be taken to know the place of the Magna Carta and the events of 1648, as messy as they were; 1689, the Bill of Rights; 1867, our Constitution; and 1982, in our constitutional history. They must also be taken to know the constitutional accountability of the government to this elected House with all its inquiry functions.
Canadians do not elect governments; they elect a House. The breach by that party, the alleged breach that I have brought to your attention here today, is in this light a cardinal insult to this House and all Canadians represented here.
If the breaches were co-ordinated in a conspiracy.... Perhaps I should not use that word in the criminal sense, but if people get together to bring this to us and present this in a certain way, then I say that if they did that, it would be constitutionally seditious and immediately deserving of sanction.
Lastly, there is no place in this country where this issue can be raised and acted on. There is no department of government and there is no court allowed to interfere. There are no other persons who can come into this House to protect the constitutional foundations of this country, only the 308 persons here. So if we do not stand up for our Parliament's role on behalf of Canadians, then there is no one else out there to do it. It is an attempt to undermine the work of Parliament and its committees that I place before the House today. If we do not stand up, those efforts to undermine our Constitution will have succeeded. We cannot let that happen.
I will close in saying that I am, of course, prepared to move an appropriate motion if you find a prima facie case here. I indicate to all colleagues, including those who will rise on this matter today, that there is the opportunity to work in a non-partisan, collaborative way to craft a resolution, to craft a motion that would suit the needs of the House and the people of Canada. I say that because at some point the Speaker will have to make a ruling and there is only so much time we have to work on this. But it is possible; it is not impossible.
View Jack Harris Profile
NDP (NL)
View Jack Harris Profile
2010-03-18 10:49 [p.611]
Mr. Speaker, the government has appointed a retired Supreme Court justice, Mr. Iacobucci, to review the documents and advise the government on this matter.
As you know, Mr. Speaker, the government has the right to seek advice from anyone it wishes, whether it be Department of Justice lawyers or other lawyers, or retired justices who are continuing to act as lawyers. That is certainly the government's right. In this particular case, the government waited three months to even consult with Mr. Iacobucci.
As far as we are concerned, it is not a major concern to this House that the government is seeking advice. Obviously, we have respect for Mr. Iacobucci. The government has the right of course to consult with any number of people, but it does not change the order of this House. The order is binding, and with consultation or no consultation, the government must obey.
The government's establishment of a separate parallel process outside of parliamentary oversight, parliamentary accountability, or even involvement, does not satisfy the very explicit requirements of the House in relation to the documents. For all intents and purposes, therefore, the engagement of Mr. Iacobucci to give the government advice is irrelevant to this motion.
I would like to address the potential argument that the government may make to excuse its behaviour.
In O'Brien and Bosc, page 83, it states that a breach of privilege includes “deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House...”. It may also involve failing to produce papers formally required by the House without a reasonable excuse, or disobeying a lawful order of the House without a reasonable excuse.
This includes the defacing of documents by redactions, expurgations, black marks or whatever we want to call it, and we have all seen those documents, certainly is destroying or concealing a paper required to be produced by the House, and therefore we expect to get them in their unexpurgated form.
The question is whether there is a reasonable excuse for disobeying an order of this House. It is clear to us that this a breach of the privileges of the House. In fact I would go so far as to say that the government's behaviour is tantamount to contempt for this House. The government may take issue with the phrase “without reasonable excuse”, and I want to address it directly.
There is no reference in our Standing Orders to national security. In fact we see the issue of national security as a red herring. Parliamentarians have themselves acknowledged the valid national security concerns and have repeatedly indicated their willingness to work around them.
The motion that passed in the House in December did not say that the documents must be publicly tabled, placed on the Internet or handed out to the public for all and sundry. The motion allows for flexibility and for an approach by the government to work with the opposition parties and parliamentarians to satisfy the concerns on all sides. It is not acceptable to use national security as an excuse to hide embarrassing information. It is also not acceptable to use it as an excuse when the government has made no attempt to work around it.
There are numerous ways that the documents in question could have been made available without divulging state secrets, and there is no reasonable excuse for failing even to address the issue in the House. These issues have been discussed with the parliamentary law clerk as to how a committee could receive documents and yet protect national security. What we need to do is find a way to acknowledge and respect the privileges of members of Parliament to hold the government to account on behalf of Canadians, while at the same time protect national security.
Mr. Speaker, I firmly believe that there is a clear case for the finding of a prima facie breach of privilege, and if you agree, I am prepared to move a motion. I want to indicate that this motion has already been discussed with other members of the opposition parties. The Bloc Québécois has indicated that it supports our motion in this regard.
It is important to put the motion on the record to understand where I am coming from in terms of what we expect to see happen in order for the House to be able to exercise its parliamentary privileges, and at the same time, find a way to get these documents before it so that we can do our constitutional duty.
The motion would read as follows: “That the House considers that the government's failure to provide the documents specified in the order of December 10, 2009, is tantamount to contempt and therefore orders the Minister of National Defence, the Attorney General and the Minister of Foreign Affairs to be called before the bar of the House immediately and hear the Speaker read this order to them:
That it be an instruction to the Special Committee on Canada's Mission in Afghanistan to adopt rules and procedures for the reception and handling of the documents demanded by the House order of December 10, 2009, in a manner that safeguards national security and other confidentiality requirements while respecting parliamentary privilege, after receiving advice from the law clerk and parliamentary counsel;
That the special committee report these rules and procedures to the House no later than 21 calendar days following the adoption of this order, provided that if the House is not sitting when the report of the committee is completed, the report may be deposited with the Clerk of the House and it shall thereupon be deemed to have been presented to the House, provided that no later than 6 p.m. on the 20th calendar day following the adoption of this order any proceedings before the special committee shall be interrupted, if required for the purpose of this order, and in turn every question necessary for the disposal of the report shall be put forthwith and successively without further debate or amendment; and
That, on the 30th calendar following the adoption of this order, if the government has not provided all the documents to the special committee, which shall receive them on behalf of the House in their original and uncensored form, at the next sitting of this House the first order of business shall be the consideration of a motion that the Minister of National Defence, the Attorney General and the Minister of Foreign Affairs be found in contempt of the House and that such a motion shall have priority over all other business until it is decided in the same fashion as a motion relating to a question of privilege”.
Mr. Speaker, I would be prepared to move that motion if you should find that there is a prima facie breach of the privileges of this House. I would note that there have been consultations on this motion with the table officers as to its form and compliance with parliamentary rules and it is in a form that we believe can be presented to this House.
That is my presentation on parliamentary privilege. I believe there has been established a prima facie breach of privileges of members of this House by the attempt of the government to delay and avoid accountability, and I ask that you so find.
View Claude Bachand Profile
BQ (QC)
View Claude Bachand Profile
2010-03-18 10:57 [p.613]
Mr. Speaker, on December 10, 2009, the House passed a motion requiring the government to produce a series of documents, in their original and uncensored form, related to the question of Afghan detainees.
This motion, which I will not read in its entirety, said:
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—
I will spare my colleagues the list of documents. The motions ends with the following:
—and accordingly the House hereby orders that these documents be produced in their original and uncensored form forthwith.
I should mention that the motion lists documents belonging to the Department of Foreign Affairs, Department of National Defence and the Attorney General of Canada.
I would first like to say that under Standing Order 49, this order of the House was not cancelled by the prorogation and is still valid in the current session.
To date, the government has not complied with this order of the House and it has stepped up efforts to show that it has no intention of following through. The most recent tactic was the tabling by the Leader of the Government in the House of Commons, on March 16, of the government's terms of reference for the review of documents by Justice Iacobucci, which did not include a timetable. I believe this particular gesture was the government's way of signalling to the House that it would not produce the documents. It was also this gesture that convinced me to raise a question of privilege in order to bring to your attention, at the earliest opportunity, a breach of Parliament.
What is at stake is that the government is challenging the law and Parliament's authority to ask for documents, under the pretext that these documents are confidential and that providing them to Parliament would endanger national security and the successful conduct of Canada's foreign relations.
I completely disagree with the government's position because there are ways of doing things properly. I believe that the refusal by the government, particularly the Minister of National Defence, the Minister of Foreign Affairs and the Attorney General of Canada, who are responsible for these documents, to comply with the order adopted by the House on December 10, 2009, strikes at the dignity and the authority of the House.
The authority of the House to require the production of documents is a well-established right. In fact, O'Brien-Bosc states on page 136:
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.
In this sense, the rights are part of and protected by parliamentary privilege, as indicated by Maingot on page 190 of the second edition.
The right to institute inquiries is part of the lex parliamenti, which is included in the “privileges, immunities, and powers” expressed in s. 4 of the Parliament of Canada Act and referred to in s. 18 of the Constitution Act, 1867.
I do not have to tell my colleagues that parliamentary privilege is one of the cornerstones of our parliamentary system. Privilege, as May indicates on page 60 of O'Brien-Bosc:
—is the sum of the peculiar rights enjoyed by each House collectively…and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.
Given that Parliament's right to institute inquiries is a matter of parliamentary privilege, it is up to the House, and the House alone, to determine how it will exercise that right.
This is Bourinot's opinion. As early as 1892, on pages 337 and 338 of the second edition of his book, he addresses the issue of the confidentiality of documents.
...there are frequent cases in which the ministers refuse information, especially at some delicate stage of an investigation or negotiation; and in such instances the house will always acquiesce when sufficient reasons are given for the refusal.
He goes on to say:
“But it must be remembered that under all circumstances, it is for the House to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public question is undoubted and the circumstances must be exceptional and the reasons very cogent when it cannot be at once laid before the Houses”.
In short, by virtue of parliamentary privilege, the House clearly has the authority to demand that documents be handed over, and this authority is not subject to common law. Furthermore, it is up to the House alone to decide what documents it should have access to, however confidential they may be, in order to properly carry out its duties.
This is not the government's role, nor that of a government-appointed independent adviser, no matter how respectable and distinguished he may be. To allow the executive branch to decide what documents to disclose would amount to giving the executive branch control over the exercise of legislative power and denying one of the primary functions of this assembly, recognized by the Supreme Court of Canada in the Vaid case, that is, holding the government to account.
Accordingly, given that one of the most vital roles of the House of Commons is holding the government to account and that, in order to do so, it has the right to demand that documents be handed over when necessary, I believe that anyone who does not comply with its orders is therefore in contempt of the House.
O'Brien and Bosc define contempt on page 82 as follows:
—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—
Page 240 of Maingot indicates that:
Disobedience of rules or orders is an obvious contempt and would include refusing to attend at the Bar of the House after the House had so ordered, refusing to personally attend and to produce the documents requested by a committee—
The text of the December 10, 2009, motion called on the government to immediately produce a series of documents. On March 18, 2010, it is clear that these documents still have not been produced and that the government is using tactics and manoeuvres to buy time and avoid producing them.
If the government truly had any intention of producing the documents, it would have done so a long time ago. It has had more than enough time to talk in good faith with parliamentarians about coming up with a strategy that would take into account the confidential nature of the documents, which it has not done.
Three months after the motion was adopted, after an abusive prorogation and with threats of contempt hanging over it, the government decides to appoint an independent adviser to review the documents. This is not an act of good faith. It is just another attempt to buy time. The government is acting in bad faith and is showing contempt for Parliament.
I find this situation to be intolerable, and the House must take action in order to preserve its dignity. By refusing to produce the documents requested by an order of the House, the government, more specifically the Minister of National Defence, the Minister of Foreign Affairs and the Attorney General of Canada, is undermining the authority and dignity of the House and must suffer the consequences.
If the Speaker decides that there is a prima facie case for my question of privilege, I am prepared to move the appropriate motion.
I would like to add a nuance to what my NDP colleague said. We worked together on this motion, and I am ready to move it when you deem the time is right.
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