HAFF Committee Meeting

STANDING COMMITTEE ON PROCEDURE AND HOUSE AFFAIRS

COMITÉ PERMANENT DE LA PROCÉDURE ET DES AFFAIRES DE LA CHAMBRE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, April 26, 2001

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[English]

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): Colleagues, I'll call the meeting to order.

Today we are dealing with a reference from the House concerning an alleged contempt of the House. The matter was taken up originally in the House on March 14, and our Speaker ruled on March 19 that there was a prima facie question of privilege. That has been referred to us for our consideration and, if so advised, report back to the House.

We have with us today Mr. Vic Toews, the member for Provencher. Mr. Toews was the member who raised the matter originally in the House of Commons. We'll hear from him shortly. It's anticipated that he will be here for no more than half an hour. Following Mr. Toews, the Minister of Justice will be here on the same issue.

I want to outline or frame our efforts here as we begin, since we don't do this too frequently. As I've indicated, going back to March 19, the House of Commons adopted the following motion:

That the matter of the question of privilege raised on March 14, 2001, by the Member for Provencher regarding the Department of Justice briefing the media on Bill C-15, An Act to amend the Criminal Code and to amend other Acts, prior to it being tabled in the House of Commons and at the exclusion of members of parliament, be referred to the Standing Committee on Procedure and House Affairs.

For the purpose of the investigation of this question of privilege by the committee, I thought it would be useful to set out the nature of the alleged breach of parliamentary privilege in the parameters of our committee study.

In his ruling, the Speaker made it clear that we are dealing with an alleged contempt of Parliament, as Marleau and Montpetit explain at pages 66 and 67:

Any disregard of or attack on the rights, powers and immunities of the House and its Members... is referred to as a “breach of privilege” and is punishable by the House. There are, however, other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges. 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.

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It should be noted that

Contempts, as opposed to “privileges”, cannot be enumerated or categorized.

And that, colleagues, is what we believe we're dealing with here today. It's in the category of a contempt, hence the inability to specifically and clearly frame it as we embark on this issue.

The Speaker has noted that there is a convention of confidentiality of bills on notice. This is necessary because of the pre-eminent role the House plays and must play in legislative affairs of the nation, and so that members themselves may be well informed. The key issue, to the Speaker, in this case was the denial to members of information they need to do their work. As he stated:

To deny to members information concerning business that is about to come before the House, while at the same time providing such information to media that will likely be questioning members about that business, is a situation that the Chair cannot condone.

By not providing information to members of Parliament and by refusing to allow members to participate in a briefing where the media were present, the Speaker ruled that prima facie the Department of Justice showed a contempt for the House of Commons and its members. Thus the House of Commons is pre-eminent with respect to legislative initiatives. This could be distinguished from policy initiatives, where departmental announcements are often made outside the House.

Once notice has been given of a bill to be introduced, it would therefore be a contempt of Parliament for the bill or its contents to be shared with non-parliamentarians prior to its introduction. The House, however, has not insisted on its pre-eminence where measures are taken to limit the disclosure of the not yet introduced item. For instance, the Speaker noted that media embargoes and lock-ups have long played a role in the way parliamentary business is conducted. I offer as examples the lock-up prior to the budget speech and the lock-up prior to Auditor General reports being introduced in the House. These items, of course, are not bills, but there is a procedure involving embargo that precedes them, arguably for the same reason we don't pre-empt the introduction of the bill by pre-issue release.

The issues in this case, therefore, involve the procedures and actions prior to the introduction of Bill C-15 into the House on March 14, 2001. It appears that a technical briefing was offered to members of the media. Members and their staff, however, were barred from this briefing, although opposition critics were provided with courtesy copies of the bill as they arrived at the House for question period that day. Before the bill had been introduced, members were being contacted by the media for comment on it. Members were clearly at a disadvantage. However, we must note that even if the members had been briefed by the department, they would still not have been able to say anything about the bill until it was introduced without themselves being in contempt of Parliament.

So I hope, colleagues, that after we've had an opportunity to confirm the facts that would be necessary to establish a contempt—and that judgment is in the hands of members here—in a way that would allow us to report to the House, if we felt that we should report to the House, we can, in the end, be constructive, with a goal of perhaps pre-empting other incidents of this nature and guiding ministries, departments, and agencies in how to handle their relationships with Parliament in the future.

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So hopefully, when we conclude this exercise, we will have some useful suggestions for the House and, through the House, ministries and departments.

I'll stop there. Ms. Parrish had a matter she gave notice of in the last meeting. We could either take it up now or take it up at the conclusion of Mr Toews' testimony.

Mrs. Carolyn Parrish (Mississauga Centre, Lib.): I'm ready for it in fact, Mr. Chair.

The Chair: All right. I'm sorry I didn't recognize you earlier on.

Ms. Carolyn Parrish: That's all right.

The Chair: So let's take it up. It's quite administrative. Colleagues, the subcommittee that's considering private members' business we asked to report by April 16. They have found the issue a challenging one and they require an extension to May 31 next. I'll read the motion that's been drafted:

That the original deadline of April 16 for the Subcommittee on Private Members' Business to report to the Standing Committee on the question of Standing Order 87(6) be extended to May 31, 2001.

Moved by Ms. Parrish, seconded by Mr. Regan.

(Motion agreed to)

The Chair: Now we go back to Mr. Toews. Excuse us, Mr. Toews, for doing some housekeeping.

Mr. Toews, you may have a statement to make. As I explained to you before the meeting, our goal here is to elicit from you the facts that would allow us to reach some conclusions about what happened. So the focus is on the facts, but as you are a member, we accord you wide latitude to assist us in dealing with the issue. The floor is yours.

Mr. Vic Toews M.P. (Provencher, CA): Thank you, Mr. Chair. I appreciate your introductory remarks, as well as the remarks you made right now.

With me today is one of my staff, Tara Katrusiak, who has some personal knowledge of this matter. I understand that this, in a sense, is a court, but that the rules of evidence aren't as strict as they would be in a court. I'll try to be as accurate as I can from the knowledge I have. If there's something that isn't satisfactory about that testimony, perhaps my assistant could assist me or you could question her directly. At this time I don't see any necessity, but I just put that on the record.

I also want to preface my remarks by saying I'm much more interested in the committee making a statement about ministerial responsibility, because, although there have been many documents written by the Privy Council Office and academics, the House has never made a statement of its own. My focus here, in light of the fact that this is a relatively new undertaking for the House in respect of this question, isn't on finding a specific contempt against a minister. Rather the remedy should be to assist the House in future cases. That is my only goal in this particular issue. If other members want to have a more personal agenda against a minister or anything, I simply don't want to be a part of that, and I won't make any recommendations in that respect.

I want to just set out the facts, Mr. Chair, as I understand them.

The Department of Justice sent out a media advisory notifying recipients that there would be a technical briefing given at 11:45 a.m. on Wednesday, March 14, of this year with regard to an omnibus Criminal Code bill, Bill C-15, that was introduced into the House by the Minister of Justice that afternoon. I requested my staff member—because we found out quite late that this briefing was going on—to attend on my behalf. In fact, I asked two staff people. One was Ms. Katrusiak, and the other was a lawyer and researcher in our leader's office, a man by the name of Greg Yost, who I've known for many years. He has served as a lawyer in the Department of Justice in Manitoba, is a very knowledgeable individual, was a policy director with the Manitoba government, and is certainly very familiar with Criminal Code matters.

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When these two members approached entry to the room where the briefing was given, it was made clear at that time that they were not allowed to be there. I believe others were there and were denied entry as well. They were told the only ones allowed into the briefing session were members of the media. But it was brought to my attention that Liberal staff members were admitted at this briefing, so there was an inconsistency in respect of our staff members being denied but Liberal staff members being allowed. I don't have any personal knowledge of that discrepancy, so I can make no further comments in respect of that.

I received a copy of the 78-page bill when I came in to question period that day. Indeed, I came into the House—and I don't know if the members know how this was done—and there was a package waiting for me on my desk when I arrived there.

Each of you, of course, understands an opposition member has responsibilities at question period. I can't focus on reviewing a 78-page bill when I also may have responsibilities in respect of question period. Certainly, even while the member—myself—is not speaking in terms of questions during question period, I do have an obligation to listen to the proceedings of the House and to be aware of what is going on. I think that's essential to my job, and I don't think any member here would deny that. So I'm being placed in the impossible position of being asked to do two things at the same time.

I was provided with a copy of that bill, I believe it was an hour and a quarter before the bill's actual introduction by the Minister of Justice. I believe that was at 3:15 p.m. or so, since I would have come into the House probably shortly after two o'clock. The media, of course, had been briefed in advance of that period of time, and had been briefed by people knowledgeable about the bill. I was simply expected to read a bill. And remember, a bill creates amendments. The full sections aren't given, so what context do I have in understanding the impact of this?

I'm sitting in question period, trying to figure out what to say to the media—the same media that had called my office, beginning at ten o'clock in the morning, asking me either to be interviewed or to comment on the bill. Immediately prior to question period, I was asked by members of the media if I would like to comment on the provisions of the bill. Of course, I couldn't comment. I hadn't seen it.

Remember, fellow members, I'm a new member here. I thought maybe I had missed something, maybe I was negligent. Maybe I was being embarrassed in front of the media, and the next thing I would know is that the media would be saying the justice critic was walking into the House without even knowing the provisions of the bill. So that was my concern. I'm embarrassed. Have I done something wrong? Have I let my constituents down? Have I let my party down in some way?

You can see, I think, the intense professional embarrassment I was facing as a result of this situation. Obviously, participating in question period as a member of the House precluded me from fully reviewing and comprehending the material that was in front of me.

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This is not a small bill. I think all of you will admit that. It is a substantive bill to which we, as members of Parliament, were denied access. I guess we could say that if it were a procedural bill, if it were a technical bill, I could overlook this, but the media wouldn't be asking me about a technical, procedural bill. They're interested in substantive matters.

So we didn't have the time. As members, we were not shown the same courtesy the media was given. The issue is not only the embarrassment it caused to me and the members of the opposition, it's an embarrassment to the House, to each and every member who would be put into that situation. I don't think I'm stretching it here by saying it's also an embarrassment to the people of Canada who elected me to represent them in the House and to respond.

I looked at a clip that I gave after coming out of the House—and remember, I'm coming out of the House at 3:15 p.m. and I don't know what the bill is all about in any detail, any substance. I remember looking at this clip in the evening, and it showed a very angry Vic Toews. The news media didn't even get it right as to what I was angry about. I wasn't angry about what the minister had introduced. It was the position I was put in, and then having the media expecting me to reply to that.

I got comments from constituents who said they understand it's an adversarial system, but they asked why I got angry about that. Generally speaking, I don't have a tendency to get angry. I think some of you might have seen my performance in the House or the media. I can get emotional about matters, but I think I'm a professional and I conduct myself appropriately.

It was an embarrassment to me, an embarrassment to the House, an embarrassment to the people of Canada, a miscommunication to the people of Canada about what the problem was.

So I think, ladies and gentlemen, there is a contempt of Parliament, since what was done here was to bring the authority and the dignity of the House into question. By placing me in that kind of position, I think we are making a mockery of our legislative process.

When I raised this matter as a question of privilege, members of all opposition parties supplemented my argument with similar concerns. These included the honourable member for Berthier—Montcalm, Mr. Bellehumeur, from the Bloc; the honourable member for Winnipeg—Transcona, Mr. Blaikie; the honourable member from Pictou—Antigonish—Guysborough, Mr. MacKay, from the Progressive Conservative Party; the honourable member for Yorkton—Melville, Mr. Breitkreuz, from my own party; and the then opposition House leader, Mr. Strahl. They all expressed similar concerns, and I detected at least a genuine concern that we address this problem. I didn't detect any personal animosity toward the minister. If there was, I think any personal antagonism would have been in the heat of the moment.

There are a few other things that need to be presented. I realize I need to move on, but at the top of this bill it said it was secret until introduced in Parliament. It appeared the secrecy seemed to only apply to the people who are in fact in Parliament. The secret was kept from us but not from the media. If the media did not have full access to the bill, they at least had access to the substance of the bill.

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I don't want to get into any of the other things. I've summarized my concerns and the facts as I understand them.

The Chair: Okay, thank you.

Colleagues, Mr. Toews' principal goal here is to arm us with the facts from his perspective as a member when this issue arose. He has done a reasonable job. There may be one or two questions out there.

It occurred to me, Mr. Toews—and I'm sorry if I'm pre-empting the questions members have—until the bill was tabled, the rubric “secret” would have been in place, even when question period began. We may have procedural questions on this issue.

Second, if the department had followed all rules to the letter and hadn't briefed anyone, but the bill was on notice, so there would have been reasonable notice it was coming forward—and any of us could have been asked questions about this bill at the same time, even though we had no knowledge of the bill, with the department not doing anything wrong at all... The bill was to be introduced, the media knew it was going to be introduced, we knew it was going to be introduced, but we didn't know anything about it—you still could have been placed at a disadvantage by asking for an informed comment on a bill you'd never seen, even without any mistakes being made by the department.

Is that a fair... I just wanted to muddy the waters a lot here to show that we have some work to do in sorting out some of these issues.

Mr. Vic Toews: It's a good question, Mr. Chair.

At least I wouldn't have been at a disadvantage where the reporter knew the substance of the bill before I did. We could have been staring at each other, neither of us knowing anything: “Well, what do have to do about the bill?” Then my response could have been a political one, as opposed to a substantive legal one. I'm not saying political responses are less than substantive; I'm just distinguishing between the two, political and legal. Then we would have been in the same position.

I'm not saying the practice of briefing beforehand is bad, but there have to be some rules governing it. I received, prior to the introduction of the bill, news stories from the media setting out the substance of it, and I gave those to the Speaker. He wanted some evidence. I only had the one copy. I gave it to the Speaker. The Speaker should have that material. The issue then was if we're going to be disadvantaged, let's all be handicapped together.

The Chair: Okay.

Are there questions colleagues wish to pursue here, hopefully focusing on the facts? I had one indication from one member, Mr. Regan. Is there anyone else?

Go ahead, Mr. Regan, and then Mr. MacKay.

Mr. Geoff Regan (Halifax West, Lib.): Mr. Chairman, I'll start, but it appears most of the members here today are more interested in questioning the next witnesses. It's hard to compare with you, Mr. Toews.

Members on this side certainly can envisage, in theory, what it would be like to be on the other side and what a problem this would create. We have to be, as members of Parliament, all concerned about this kind of occurrence and do whatever we can to ensure it doesn't occur again. It's probably impossible to make it never happen again, but wherever we can we have to take steps and look at this question.

You have suggested the question of guidelines or rules. You said a moment ago there seems to be a lack of clear rules around how departments should handle these advance briefing situations. Is it fair to say this?

Do you see this as part of the answer? The question really is... you've given this some thought, clearly, over the past while, and I'm curious to hear your thoughts on what we should be doing about this as a committee and what rules or guidelines ought to be in place.

Mr. Vic Toews: Thank you, Mr. Regan. I appreciate the opportunity.

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I want to state on the record that subsequently on the organized crime bill, the Minister of Justice or the Solicitor General, or both, who were responsible for it, took a step forward in providing a simultaneous, or at least relatively concurrent, briefing between media and members of the House.

I still had some problems. There were news conferences being given immediately, even before the introduction of the bill in the House, and I then had to respond. I wouldn't say that process was perfect either.

But if I could refer the committee to the Resolution of the United Kingdom Regarding Ministerial Accountability found on page 63 of the 22nd edition of Erskine May, there is a statement about ministerial responsibility for these types of matters. I don't intend to set out the entire quote, but certainly this incident is a good segue into creating an additional comment in our own process about parliamentary reform work of the special committee on modernizing Parliament. Our approach specifically to these types of bills needs to be part of a committee, and perhaps it needs to be looked at by the special committee on modernizing Parliament.

I don't presume to know, being a novice here, what the appropriate solution is. I can make recommendations, and each of you may have ten reasons why one of my recommendations may be less than satisfactory. I defer to many of the parliamentarians here who are much more knowledgeable. I only want some form of equity so that all members are treated equally, and certainly at least treated as the equals of members of the press.

The Chair: Thank you, Mr. Toews.

I'll go to Mr. MacKay. I ask my colleagues to try to focus on the facts at this point. The way to resolve this will be debated, and we can exchange questions on it later. I'm sure Mr. Toews would be happy to come back, if we need him.

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair, and you, Mr. Toews, for bringing this matter forward. Your commentary is very helpful.

I was concerned with this new information I hadn't received stating that staff members of Liberal members were permitted to be at the committee while staff members of opposition parties were refused. This new information aggravates the situation further. Let's not forget, Mr. Chair, that obviously the crux of this is about the control of information and the role of Parliament in examining legislation.

The Chair: Mr. MacKay, again, you're grappling with broader issues.

I had hoped we would use this opportunity with Mr. Toews to elicit facts. He's already indicated that he has, at least on a hearsay basis, understood that at the briefing there were what he calls Liberal staffers, staffers of whom we don't know, but we could possibly establish that later. I'd like to keep the questioning focused on facts. After we establish our fact base, then we can kick around the more esoteric issues and try to come up with some results.

Mr. Peter MacKay: Which are very good, Mr. Chair.

The Chair: I'm not discounting your—

Mr. Peter MacKay: Thank you.

Mr. Toews, perhaps you could then inform the committee, with the information you have relating to the presence of staff, who you believe were Liberal members' staff.

Mr. Vic Toews: Again, my information is hearsay. That's why I was very careful in stating it. Only the people actually present at the meeting would know. Another member advised my staffer that he had seen Liberal staffers going into the room. If it cannot be substantiated, I'm prepared to withdraw this accusation. It is a concern of mine, and certainly the minister who was present, or others who were present, would know who those staffers are. I don't want to suggest anyone's name at this time—

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Mr. Peter MacKay: Thank you.

Mr. Vic Toews: —because I can't.

Mr. Peter MacKay: That's all.

The Chair: Thank you. Thank you very much, Mr. Toews. Oh, I'm sorry, Mr. Harris wants to ask a question.

Please, go ahead.

Mr. Richard Harris (Prince George—Bulkley Valley, CA): Thank you, Mr. Chairman.

Before we try to discuss how we're going to remedy this, I would like to get from you something we might be able to take into our discussions on the remedy, some steps we could take. I appreciate your not wanting to make this personal, but you brought up the principle of ministerial responsibility, making the minister responsible if she was abiding by that principle. The minister responsible, along with whatever action she would take, must be seen to be part of the remedy.

At a minimum, wouldn't you agree that she should at least apologize to the House, to reaffirm ministerial responsibility and her own responsibility to the House?

Mr. Vic Toews: Thank you for your questions.

But as I've said, I'm very skeptical about forced apologies. I cannot see a committee requesting an apology. We see members apologizing of their own free will with respect to indiscretions in their conduct that may have occurred. For me, the very essence of an apology requires it be of a person's free will. I don't want an apology from someone who doesn't feel required to give an apology. That's why I don't see this discussion going anywhere. It's a personal belief.

If the committee proceeds otherwise, that's its responsibility. I hold this position because, in many respects, this is a matter of first instance. If we were dealing with a situation where the House had specifically set down guidelines on these types of situations and a minister went out and transgressed those specific guidelines, a personal remedy of one sort or another would be warranted by the House, or the committee, or whomever. It's only my opinion as a member, and I speak with limited knowledge, but this case does not warrant such a remedy in my mind.

The Chair: Okay, thank you very much, Mr. Toews.

We'll break for a couple of minutes. We'll stand down, turning off the sound for two minutes while we exchange witnesses.

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The Chair: We call the committee back to order.

Colleagues, we are continuing with our consideration of the reference on the privilege matter of the House.

We have with us the Minister of Justice, the Honourable Anne McLellan, and appearing with her is Mr. Morris Rosenberg, who is the Deputy Minister and Deputy Attorney General of Canada.

Welcome, Minister and Mr. Rosenberg.

We are at this stage. Colleagues on the committee are attempting to bring together the facts and the background of this. I am fairly certain that a number of members will want to ask questions as to what was going on at the time, who was doing what—who, where, when, what, why, how. So thank you for being here today, to help us resolve this issue.

We didn't invite you to be here at 11 o'clock, but we did go through an opening statement, which attempted to frame the proceeding. Unfortunately, you don't have the benefit of those wonderful remarks that emanated from the chair. But I'm sure you'll want to make an opening statement. Then we'll go to questioning in the usual manner.

Hon. Anne McLellan (Minister of Justice): Thank you. Merci, monsieur le président.

Thank you for inviting me here this morning to speak with you. I think, as you have pointed out, Mr. Chair, it is important that we all have the opportunity to discuss the issues surrounding the introduction of Bill C-15 on March 14 of this year.

As you've already noted, I'm accompanied today by my Deputy Minister, Morris Rosenberg, from the Department of Justice.

I'd like to open my remarks with an overview of the facts as I understand them. But first let me say that at no time did I intend to be contemptuous of Parliament or to undermine the rights of the House and members thereof. I apologize for any concern that my actions may have caused.

I would like to turn to the events surrounding the introduction of Bill C-15. On March 12, 2001, at 6 p.m., notice of the bill was given and this appeared on the March 13 order paper, which was available in the morning of March 13.

On March 13, 2001, at 1:30 p.m., a media advisory was sent out to the National Press Gallery and national media outlets. The advisory stated that a technical briefing would be given by Department of Justice officials and that the information given at the briefing would be under embargo until the introduction of the bill. I have copies of that notice for the committee, if they wish them.

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On March 14, 2001—this is Wednesday—at 11:45 p.m., the media briefing got underway with the introduction of the panel of experts. The moderator clearly stated at the beginning and end of the briefing that the session was under embargo until the bill was tabled in the House. The moderator also indicated that no documents would be distributed at the briefing, and in fact there were no documents of any kind at the briefing. The briefing concluded at 1:30 p.m. My parliamentary secretary, who is here today, John Maloney, attended the briefing. At 1:56 p.m. copies of the bill were delivered by hand to the opposition critics. No press materials were distributed to anyone, including media, prior to the introduction.

Following question period, the bill was introduced in the House. Bill kits were immediately made available in the government lobby. My office attempted, through a page, to deliver both bill kits and copies of the bill to the opposition lobby. However, both were returned with the instructions that they could not be distributed. It was at this time that the media received copies of the bill kit with a press release backgrounder. We have copies of those too, if you haven't received them and would like to.

On March 19, 2001, the Speaker ruled that there was prima facie evidence of contempt of the House. That ruling has obviously led us to these committee proceedings this morning.

The Speaker, in his comments, recognized the role of the media briefing and the conflicting demands the government must reconcile. He stated in his ruling on March 19:

The House recognizes that when complex or technical documents are to be presented in this Chamber, media briefings are highly useful. They ensure that the public receives information that is both timely and accurate concerning business before the House.

As the government House leader indicated in his remarks during the debate following the Speaker's ruling, embargoed briefings without documents have been held in the past on a number of issues.

I think we can all agree that briefing the media has become a common occurrence, with the goal being to accurately inform the public. Media briefings can take several forms, as, for example, a lock-up. Lock-ups are described in Marleau and Montpetit as “a closed door or in camera information session immediately prior to the presentation of a major initiative.” They are used by all departments on a range of bills, policies, and initiatives. Embargoes have provided in the past a useful tool in protecting members' rights while allowing for the involvement of other actors in our democratic process.

Let me be clear. The Department of Justice attempted in good faith to comply with established practices regarding embargoes. The media advisory clearly stated that the session was under embargo. That condition was verbally repeated at the beginning and end of the media briefing. I would also like to highlight to the committee that no copies of the bill or other documents were provided to anyone other than opposition critics prior to introduction. As I've mentioned already, opposition critics received, as a courtesy, a copy of the bill at 1:56 p.m.

Accordingly, I believe the department made deliberate, good faith attempts to protect the privilege of the House. However, Mr. Chair, it is clear that those efforts were not ultimately sufficient, and for that I again apologize. We all work in an environment of conflicting demands. The roles of the members, of departments, and of the media are not always easy to reconcile. Members have a legitimate interest in assessing and commenting on government initiatives. The department has a legitimate objective of ensuring that the public is well-informed of the legislative initiatives it undertakes. The challenge we face is how we respect the conflicting demands inherent in a parliamentary democracy in the present age of instant information.

I would also like to emphasize that following the Speaker's ruling, I asked my staff and officials that the appropriate processes noted in the Speaker's ruling be followed in any future cases where embargoed briefings are used.

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So once again, Mr. Chair, members of the committee, I apologize to the committee for any perceived contempt of Parliament, and I believe we now have in my department an effective system to ensure that the rights and privileges of the House are respected in the future. However, I look forward to the deliberations of this committee and whatever you have to say and suggest in relation to the future.

I again thank you for your patience and for letting me come this morning to provide you with an overview of the facts. I look forward to answering your questions.

The Chair: Thank you, Minister. Your opening statement was very helpful.

Colleagues, you'll take note that our researcher did prepare a document with suggested questions. If all were answered, those questions would be very helpful, we believe, in helping us address the issue later in the exercise.

Having said that, I'll go to Mr. Harris for a seven-minute round.

Mr. Richard Harris: Thank you, Mr. Chairman.

Minister, thank you for coming. Maybe you could help us out with a question that's arisen to the effect that there is a suggestion that government staff members were present at the media briefing—

Mr. Geoff Regan: Government MP staff members.

Mr. Richard Harris: Yes, that government MP staff members were present at the media briefing. However, there is a suggestion that opposition staff members were not permitted to enter that media. Do you have any knowledge of that, or does your department have any knowledge of that?

Ms. Anne McLellan: It is my understanding that the only member of Parliament on the government side who attended the media briefing was my parliamentary secretary, Mr. Maloney, and he was there obviously as my representative. So it is my understanding that he was the only member of Parliament—and Mr. Maloney is here in the room. I believe he had with him a parliamentary intern. Obviously that would be a unique circumstance. The person was taken as part of their internship and their learning experience, but that person is not part of an MP's staff. So the only person, other than the media... This was a media briefing, and it is my understanding that the intention was that it was to be exclusive to members of the media but for my parliamentary secretary, who was my representative there, and obviously the government officials who actually did the technical briefing.

Mr. Richard Harris: Thank you. You stated just now that you have implemented in your department a process that will protect the rights and privileges of members. Could you share that with us?

Ms. Anne McLellan: This was the process that we used in relation to Bill C-24, our organized crime legislation. What we did there was obviously indicate that we would be introducing legislation—putting it on notice. Absolutely no briefings of any kind, any release, any advance copies to anyone, were made available in relation to that legislation, Bill C-24.

Immediately after introduction we provided briefings to opposition members and government members. In that case, I, along with my colleague the Solicitor General, held a press conference. It was only after the introduction of the legislation that copies of the bill were made available to anyone—government members, opposition members, critics, media. The legislation was only made available after introduction, along with background information and whatever else—a press release from myself and the Solicitor General.

In light of what happened in relation to Bill C-15, and to ensure that everybody's rights and privileges are respected and that especially members of Parliament—both government and opposition members—are treated fairly and are on the same footing, we simply think the best approach, until further notice, is not to provide any advance copies of the bill to anyone, including opposition critics, as we have done in the past. We will provide no technical briefings until after introduction. It is only then, after the bill has been introduced in the House, that copies will be made available and the media will be informed.

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Mr. Richard Harris: Okay.

The Chair: Mr. Blaikie, seven minutes.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): I was just going to make the point, Mr. Chairman, which I think the minister has already made, that I've never understood why there was this tendency to want to do things before something is revealed in the House. Things should be revealed in the House. There's lots of time. It's not as if the bill was going to be passed that night—it's not the clarity bill. And there's time for technical briefings and for political briefings. So I think that's the solution, that things happen after introduction. That's a policy the government should adopt in every department. In some respects, what I was going to suggest is what the minister outlined.

I've always thought things should be done first in Parliament, and then explanations should follow. In fact, that's what second reading debate is about. Ideally, it would be in the debate on the bill that people would come and sit in the gallery to find out what the bill was about—right? What an idealistic notion that is. Failing that, these briefings and other things should take place after the bill has been tabled in the House.

The Chair: Ms. McLellan.

Ms. Anne McLellan: As a general principle, I support that entirely. The only thing I would say—and perhaps it's not for me to say—is that I think exceptions have been made for the Auditor General's report and for the budget, where formal lock-ups were used—

Mr. Bill Blaikie: That's different.

Ms. Anne McLellan: —and you probably accept those as well. I wanted to make that clarification, but otherwise, I think the principle you articulated is a wise one.

Mr. Bill Blaikie: It's partly because we're prisoners of the media culture, Mr. Chairman, that everything has to happen within minutes of things being known. By tomorrow it's some other story that's happening, unless it's certain stories around here, which have a life that goes on forever. But things that are substantive tend to only last 24 hours.

The Chair: That's a fair bit of wisdom encapsulated in a thirty-second after-comment.

I'll go to Mr. MacKay, for seven minutes.

Mr. Peter MacKay: Thank you, Mr. Chair. I thank the minister and Mr. Rosenberg for being here as well. We certainly appreciate your recitation of the facts, as to how it unfolded.

One of the things that was rather offensive, I think, to opposition members in particular was the difficulty we had going out and facing the media immediately after question period. The bill arrived, by your account, four minutes prior to question period. You know how intense question period is for everyone, yourself included. I don't think you are suggesting this, but it's virtually impossible to absorb a 78-page technical bill in the still of night, let alone in that bearpit of question period. So that, I think, was what caused a lot of difficulty.

I know you respect the role that opposition members have to play in their critique, and sometimes their praise, of government legislation, but to distinguish between the release of the actual document and the release of the intellectual content of the bill is really not an excuse. What your department did was give a full, complex briefing to media and not to opposition members. That was the disadvantage that occurred. Your very department has as its symbol the scales of justice. That wasn't fair. There was no balance in what took place.

I would add that there was a pre-leak to the intentional leak. I was asked questions the day before this occurred, very detailed questions that indicated to me that some members of the media had been clearly given information about this bill. Leaks happen.

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My question to you, or your deputy minister, is, who speaks for Parliament when these decisions are made about the disclosure of information? Who in the department or who in the civil service decides that Parliament is cut out of the loop? That's what happened here. There has to be some conscious effort made to ensure that Parliament is given pre-eminence. That is very much the cut and thrust of the Speaker's ruling.

I took the time to look at the ministerial code of conduct for the U.K. The opening statement is that:

Ministers have a duty to Parliament to account, and be held to account, for their policies, decisions and actions of their Departments and Next Steps Agencies;

And it also says:

...Ministers should require civil servants who give evidence before Parliamentary Committees on their behalf and under their directions to be as helpful as possible in providing accurate, truthful and full information in accordance with the duties and responsibilities of civil servants as set out in the Civil Service Code...

I recognize that there is very much a competitive nature, and a competitive edge is very important and helpful at times. But Parliament, in the greater context here, is what suffers when things like this happen. The whole process is diminished and materially harmed, in my view. I'm encouraged to hear that there is now a clear policy in place, but I would also like to have some indication that within those decisions that are made—in every department, not just the Department of Justice—there is a conscious effort, a recognition that Parliament has to be respected and included in this disclosure process.

Ms. Anne McLellan: I can, obviously, only speak for my own department. As I've indicated, we have now put in place a policy that, I believe, does exactly what you have suggested. As I say, I can't speak for other departments, but I would think all my ministerial colleagues and other departments have the same goals, to ensure respect of Parliament and respect for the rights and privileges of the government and opposition members of Parliament.

What has happened in the past, speaking for the Department of Justice, is that decisions have been made on a case-by-case basis. There hasn't been a comprehensive policy, because, as we know, public interest in legislation, what's in a bill, varies widely. Bill C-15, obviously, deals with a number of important matters—and we will be, I presume, debating that, probably starting next week, as colleagues. And then there are other pieces of legislation where there is, quite truthfully, very little public interest, because they are technical in nature, or they may be miscellaneous amendment statutes, which we do every year. Here there's very little interest, there's no desire on the part of anyone for a technical briefing, including members of Parliament.

So we haven't had a policy as such. But now we do in the Department of Justice, because of what happened in relation to Bill C-15. And I think it makes it simpler for everybody when it comes to respecting the rights and privileges of members of Parliament. Again, I don't know about other departments, but I'm sure their objective is exactly the same as ours, which is to ensure people are treated fairly.

You mentioned a pre-leak. I want to come back to this, because my staff has mentioned to me that you said you were approached by a journalist. As the Speaker rightly points out, this does not in any way ameliorate the situation that arose, but keep in mind that the vast majority of what you see in Bill C-15 had been introduced previously and died on the order paper in June. So there was no surprise for the bulk of the legislation.

Also keep in mind that during the election campaign and before, I indicated we would be moving on Internet luring, and I indicated, when Sharpe came down, that we would be moving to modernize the code as it related to various aspects of child porn, to ensure that there are no gaps in the code. So in relation to that, it was all widely known, in respect of where the government was going. But as for the specific language of the draft, obviously not.

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Mr. Peter MacKay: Madam Minister, I apologize for interrupting, but you're missing the point here. The Speaker himself has said that the fact it has been presented in a different form—

Ms. Anne McLellan: No, that's what I acknowledge—

Mr. Peter MacKay: —to a different session of Parliament, has no bearing—

Ms. Anne McLellan: I agree.

Mr. Peter MacKay: —and the bill is considered a new matter.

Ms. Anne McLellan: That's just what I said. I accept that.

Mr. Peter MacKay: The fact that it had been discussed before or even during the election campaign—you had indicated this legislation was—

Ms. Anne McLellan: No, but it might explain why you shouldn't be surprised that a reporter would approach you while knowing that Bill C-15 was coming, because much of what is in Bill C-15... the vast majority of Bill C-15 was widely known and was simply reintroduced in its existing form. That—

Mr. Peter MacKay: Well, there were very specific questions posed that bore out the fact that there was information out there that wasn't available to the public.

Ms. Anne McLellan: To the best of my knowledge, it did not come from my staff and my department.

Mr. Peter MacKay: But you acknowledge the difference between marking a bill as secret, embargoed, and that bill being in the hands of a member of Parliament as secret and embargoed. Hours earlier, the media were given what was, if not a hard copy, a detailed briefing—

Ms. Anne McLellan: No, they were given absolutely no materials whatsoever—

Mr. Peter MacKay: No, that's not what I said—

Ms. Anne McLellan: No member of the media saw any materials.

Mr. Peter MacKay: That's not what I said, though. They'd been given the—

Ms. Anne McLellan: Nothing.

Mr. Peter MacKay: —intellectual facts.

Ms. Anne McLellan: They were briefed on the content, and it was embargoed. We anticipated—and I certainly expected—that the media would respect that embargo. I would be the first to say I have learned a valuable lesson, and that is why we've put in place this new process.

Mr. Peter MacKay: But the point is, members of Parliament deserve to have that information first.

Ms. Anne McLellan: I agree.

Mr. Peter MacKay: Whether it's going be in the House of Commons—which I maintain is the place where it should occur—

Ms. Anne McLellan: I agree.

Mr. Peter MacKay: —or it's going to occur in briefings, we should get first kick at that can.

Ms. Anne McLellan: I agree with that, and that's why we've put in place the process that we now have.

Mr. Peter MacKay: Let the record show that this was not the first time. There have been numerous occasions when briefings have occurred in the press gallery, have occurred outside of Parliament, prior to ones for members of Parliament.

Ms. Anne McLellan: Not to the best of my knowledge, but...

The Chair: Mr. MacKay may be referring to other policy announcements.

Mr. Peter MacKay: Yes.

The Chair: In the whole scheme of governance, there are lots of announcements that take place outside Parliament, and none of us could possibly be aware of all of them. But we know they're out there.

Mr. Peter MacKay: Thank you, Mr. Chairman.

The Chair: Thank you, Mr. MacKay.

Colleagues, I had hoped to be able to quickly go through this and get a lot of the essential facts in here. I'm just going to ask two or three questions.

Mr. Jordan, do you have a question, or did you want to—

Mr. Joe Jordan (Leeds—Grenville, Lib.): Madam Minister, had you heard Mr. Toews' presentation, I think you would have been impressed by the fact that his motivation here is to try to come up with some sort of framework that prevents this from happening again. I was quite impressed with his tone.

You seem to have suggested a road we could look at in terms of a solution, and that is that we don't release anything, in any form, to anyone, until it's tabled in the House. Auditor Generals' reports and budgets aside—because they're really not legislation—can you think of any piece of legislation that would need to be exempted from that for any reason? Or is the solution here... it's becoming clear to me—

Ms. Anne McLellan: I can only speak for the Department of Justice. I do not think there's any reason to exempt any of our legislation from the policy that we put in place and used in relation to Bill C-24. I think that does ensure the respect of all members of the House and that all members are treated fairly.

Mr. Joe Jordan: Thanks.

The Chair: I have a couple of little questions. On this departmental policy that you've now made known to us, has that been reduced to writing at this stage in a way that you could make available?

Ms. Anne McLellan: No, it hasn't, but it's quite clear in the department that it's the basis on which we now operate. But I'll let the deputy speak to that, your suggestion being that we would reduce it to writing.

The Chair: Our challenge is that if it's not yet in writing, we're going to have to sit around the table and craft something with wordcraft. If you already had something that we felt was useful, we'd certainly take it into consideration.

Mr. Rosenberg.

Mr. Morris Rosenberg (Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice Canada): No, we haven't put it into writing yet, but I think it would be certainly advisable for us to make sure there is clarity in the department on what the rules are. Probably the best way to do that is to try to put it into a written document. We'll be looking at that.

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The Chair: Minister or Mr. Rosenberg, are you aware of any Privy Council guidelines governing pre-introduction briefings on bills?

Ms. Anne McLellan: I'm not, but I'm going to let my deputy answer that, since I believe he has had some discussions in this respect.

Mr. Morris Rosenberg: I have raised this with the Privy Council Office, because I take this matter very seriously, as does the committee. I will be discussing the matter with the Privy Council, with a view to looking at articulating a policy that would clarify the rules in these matters.

The Chair: In this policy, do you distinguish between legislative initiatives and other policy announcements or initiatives? Should you?

Ms. Anne McLellan: My own thought would be, yes, one does. Obviously, once legislation goes on notice, I think it becomes very important, as we've heard here this morning. It becomes very important that members of the House are treated fairly, equally, and with respect in relation to their opportunity to be seized with the content of that legislation and to have, if they so choose, technical briefings after its introduction, and so on.

I do think, however—this goes for every government department, and my own is no exception—that we make many kinds of program announcements. For example, under a program like crime prevention, we announce on a regular basis that our federal-provincial committees have agreed on a series of projects for funding. Those are announced in a press release, and that press release is made available to everyone.

I would say that, clearly, regional ministers are informed that an announcement is to be made in their province or area. I then leave it up to them to determine who they would wish to inform beyond that. There's a press release, and once I issue it, that press release is available to everybody, including the media, at exactly the same time.

Those are not matters that implicate the House or the operation of the business of the House, that being the introduction and passage of legislation. Therefore, probably in my own mind, there is a clear distinction between that which is the work of the House of Commons, where one is introducing, debating, and passing legislation, and a wide variety of other kinds of policy announcements and initiatives that we might make from time to time. Overall, though, I think openness and getting information out on what we are doing as a government, both to the Canadian public and to others who are interested, is a good thing and an important thing.

The Chair: I want to get technical now. On the bill that was introduced that day, Bill C-15, it's my understanding that it would have been marked on the front cover that it was secret until introduced in the House. I'm hoping either you or Mr. Rosenberg will know the derivation of that rubric “secret”. What does it mean, who places it there, and why? I don't think we know, with clarity, the answer to that. Hopefully you do.

When you have a bill printed for introduction, I'm assuming it's your department that decides it's going to be marked secret, so I'm asking you what you mean when you mark it secret. Is this a courtesy marking? Is it under the Official Secrets Act? Is it a convention involving the House of Commons? Why is it there? What does it mean?

Ms. Anne McLellan: I'll let my deputy take a shot at that, and then we can take it from there.

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Mr. Morris Rosenberg: Let me preface this by saying that I don't think I'm going to be able to give you the detailed, expert answer you're looking for because it's not my area of expertise.

My understanding is that this is in fact the practice with respect to all legislation that is put on notice to be tabled in Parliament. But I would submit that the deliberations of the committee today are really about what the scope of that is, because there are probably two interpretations. One is a narrow interpretation of the word “secret”, that until it's tabled in the House, there is no other audience to which it could be intended. The other interpretation, which I think may have been consistent with the practice that we attempted to do with this bill and that arguably is consistent with the lock-up practice, is that “secret” means that it cannot be published but that you can make it available beyond the executive to some extent.

I'm not going to sit here and argue for one position over the other. I think the change in our practice that has resulted from what we've learned from this incident probably puts us in the camp right now of saying we would interpret “secret” in that narrower sense. That is the effect of the practice that the minister has articulated. But there have been other practices, lock-up kinds of practices, that seem to take a somewhat broader view of that.

The Chair: And you don't know who decides to put that word “secret” on the bill. I don't know, and I don't think colleagues around the table know. It's a mystery. We're trying to find out, and in the event you have some knowledge, we'd be delighted to hear it.

Mr. Morris Rosenberg: I don't have any more knowledge on that. I could undertake to make inquiries and to provide that information to you, and I'll do that.

The Chair: Being from the Department of Justice, you might be an excellent source of that information. We might also be able to obtain it from the Clerk of the House, because it's not clear who prints the bill and why it's put on there. We know it is printed as part of the House of Commons printing operation, but as to just where it comes from, we're not clear. So if you could locate an answer to that, we'd be most grateful.

Mr. Morris Rosenberg: I've taken note of your request, and I'll undertake to do my best.

The Chair: Thank you.

Lurking behind this is a fact involving the likely leak of the bill. We don't know who or where, but in the press, on the day of introduction of that bill, I understand there were some fairly well-worded stories about that bill. In order to be in the press of that day, the journalist would have had to have something in order to write that kind of a story. So I'm assuming that something from this bill got out before the briefing. What appeared in the media that day did not come from the embargoed briefing; it came from something else.

The minister has already pointed out that most, if not all, or almost all, of Bill C-15 was comprised of legislation that had already been before the House of Commons. It would have been perhaps a virtual no-brainer for a journalist to write a story about those things, but I wonder if your department was aware of any leak that would have given rise to the press reports of that day, or whether you had any concerns about that.

Ms. Anne McLellan: No. Neither my department nor my staff have any knowledge of a leak in relation to that legislation. In fact, I think there was one article in particular that people have referred to. It was done by a journalist for the Ottawa Citizen, dated Wednesday, March 14. I've had my staff go through this article clause by clause in terms of what is asserted here, in terms of what would be in the legislation, and virtually all of it was in previous legislation.

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I had already indicated to the public in January that I would be reintroducing that legislation. The form might be different—that is, omnibus—but I would be reintroducing that legislation, and there would be no substantial changes to it.

There were some additions to that legislation, none of which, as far as I can tell, were discussed, other than those we had already announced. On Internet luring, coming out of the federal-provincial-territorial justice ministers' meeting in September in Iqaluit, I indicated that I would move on the request of my provincial and territorial colleagues. We as a party indicated during the election that we would amend the Criminal Code to include Internet luring, and in January I made no secret of the fact that it would be in this omnibus bill.

I also made no secret of the fact that, after Sharpe, we would be modernizing the Criminal Code in relation to child pornography to make sure there were no gaps in the code as it related to the ability of the police to investigate child porn.

In fact, the journalist in question had one piece of this article simply wrong. She asserted something that was going to be in the legislation that we had already dealt with, that you, the justice committee, had dealt with and had been passed by the House the previous spring.

I asked my staff to look through this, and as far as I can tell, there's nothing in this article that was not public knowledge as of January 2001. In fact, virtually all of it had formed the basis of legislation introduced into the House the previous spring.

The Chair: Okay, thank you.

I want to make a comment and invite you to reply back. You indicate that under the new policy that you are going to follow, you won't be releasing any copies of anything to anybody any time before—

Ms. Anne McLellan: Before introduction.

The Chair: Yes. Nothing goes to no one. But that does run the risk of prejudicing some members at that time in the House. You as minister of course know everything that's in the bill; you know it inside out. Your parliamentary secretary will know just a little bit less than you do, or maybe more.

Ms. Anne McLellan: Sometimes more.

The Chair: So as the bill is introduced, the department is up and running and ready to go, but the opposition members and the chair of the appropriate committee involved will have no information.

I'm going to suggest that, from my point of view, the practice that had been followed in this particular case, of providing a copy to the opposition critics about an hour before introduction—and I'll include the chair of the appropriate standing committee, in your case the justice committee—might not be an unreasonable thing to do, even though the simplicity of the new guidelines is rather attractive. I just hold that out as something you may wish to consider.

Ms. Anne McLellan: I would seek the committee's guidance on that point. At the moment we have a policy that I hope is effective and perhaps elegant in its simplicity. But I take your point, and in fact, as you know, what we tried to do with the opposition critics was to provide them, as a courtesy, a copy of the bill some hour and fifteen minutes before its introduction. We are not doing that any more because of what happened around Bill C-15 and how seriously we treat the concerns that were raised by my opposition critic, Mr. Toews, and others.

If the committee feels it would be useful—on an embargoed basis—obviously, I would certainly look forward to your guidance in that regard.

The Chair: Okay, that's good.

Colleagues, are there any other questions?

Mr. MacKay again.

Mr. Peter MacKay: I appreciate that assurance, Madam Minister. We appreciate your frankness about this switch, but I think it has to be an attitudinal switch as well, and that includes the opposition. If we are going to renew and reinvigorate Parliament, which is part of the bigger picture and part of the process we're doing in another committee to look at ways to change it procedurally, a lot of it has to do with attitude. That attitude has to extend to members, ministries, ministers, and the civil service.

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If an emphasis is placed on putting important public policy and legislation before Parliament in the first instance and then beginning the discussion and the spin-doctoring, the politicking, and the advertising, that is the process. I'm encouraged, very much so, to hear that is your department's policy. We hope other departments will follow suit. I think it's only going to evolve if departments lead by example. Then the rest will sort itself out.

Ms. Anne McLellan: Thank you.

The Chair: Thank you, Mr. MacKay.

We appear to have made great progress here. I don't see any further indications of a need to ask questions.

Mr. Rosenberg, I think we're going to ask someone from the House of Commons to attend to outline what I have called the small “s” secrecy surrounding the production and printing of bills, etc. But we'd still be interested in hearing your perspective as the executive of government, while we also hear the House of Commons' perspective. So please do that.

Lastly, Minister, we would like to have copies of the two items you mentioned in your remarks.

Ms. Anne McLellan: We have those for you.

The Chair: It appears as though they're already here. Are they?

Ms. Anne McLellan: I think so.

The Chair: That's a pretty quick turnaround. Thank you very much.

Ms. Anne McLellan: Thank you very much. It was a pleasure to be here today. I appreciate your patience. I thank you for the opportunity to come and explain to you what happened and why it happened. Hopefully, it won't happen again. Thank you. Merci beaucoup.

The Chair: Thank you very much, Minister.

We're adjourned until Tuesday morning at the usual time.