The House delegates certain powers to the committees it creates in order for them to carry out their duties and fulfill their mandates. Committees have no powers other than those delegated to them in this way, and cannot assume other powers on their own initiative.
The exercise of their powers is subject to three fundamental rules. First, they can be exercised only on the territory and within the areas of jurisdiction in which the Parliament of Canada is entitled to legislate.146 Second, committees can invoke these powers only within and for the purposes of the mandate that the House (and the Senate, in the case of joint committees) has entrusted to them.147 Finally, barring specific instructions from the House, committees are free to decide whether they will exercise the powers granted to them.
Committee Powers by Committee Type
The Standing Orders set out the powers held by standing committees. Each is given the power to examine and enquire into all such matters as the House may refer to it, to report from time to time and to print an appendix to any report, after the signature of the Chair, containing such opinions or recommendations, dissenting from the report or supplementary to it, as may be proposed by committee members. Except when the House orders otherwise, committees are also authorized to send for persons, papers and records, to meet either when the House is sitting or when it stands adjourned, to meet jointly with other standing committees, to print from day to day such papers and evidence as may be ordered by them, and to delegate powers to subcommittees (except the power to report directly to the House).148
To Examine and Enquire into All Such Matters as the House May Refer to Them
The House gives its standing committees a general power to examine all matters that it may refer to them or that may fall within their mandate and thus stand permanently referred to them.149 In the absence of specific instructions from the House, it is up to each committee to define the exact nature and scope of the studies it will undertake or that have been entrusted to it. In concrete terms, standing committees exercise this power when they adopt a motion to conduct a particular study150 and when they meet for this purpose.
To Send for Persons
Standing committees often need the collaboration, expertise and knowledge of a variety of individuals to assist them in their studies and investigations. Usually these persons appear willingly before committees when invited to do so. But situations may arise where an individual does not agree to appear and give evidence. If the committee considers that this evidence is essential to its study, it has the power to summon such a person to appear.151
A committee exercises this power by adopting a motion to summon one or more individuals to appear before it at a set date, time and location.152 The summons, signed by the Chair of the committee, is served on each of the individuals by a bailiff.153 It states the name of the committee concerned, the matter for which the appearance is required, the authority under which it is ordered, and the date and location of the appearance. It also orders the witness to be available from the time of the appearance until duly released by the committee.
The Standing Orders place no explicit limitation on this power. In theory, it applies to any person154 on Canadian soil.155 In the unusual case of a person in prison, a committee has presented a report to the House in which it recommended that the Speaker issue a warrant ordering the persons and institutions responsible for the inmate’s detention to bring him before the committee at a set date and time. Once the report had been concurred in by the House, the Speaker issued the warrant.156
In practice, certain limitations are recognized on the power to order individuals to appear. Because committee powers do not extend outside Canadian territory, a committee cannot summon a person who is in another country.157 The Sovereign (either in Canada or abroad), the Governor General and the provincial lieutenant governors are also exempt from such a summons.158
This applies as well to parliamentarians belonging to other Canadian legislatures, because each of these assemblies, like the House of Commons, has the parliamentary privilege of controlling the attendance of its members and any matters affecting them. The same logic explains why a standing committee cannot order a Member of the House of Commons or a Senator to appear. At issue in all these examples is the power to order someone to appear; nothing prevents such individuals from appearing voluntarily before a committee following a simple invitation, apart from the obligation incumbent upon some of them to obtain leave from the House to which they belong.159
There is no specific rule governing voluntary appearances by Members of the House of Commons before parliamentary committees. They may appear before a committee if they wish and have been invited. If a Member of the House refuses an invitation to appear before a standing committee and the committee decides that such an appearance is necessary, it may so report to the House,160 and it will be up to the House to decide what measures should be taken.
A standing committee may invite a Senator to appear before it. According to the Rules of the Senate, Senators may appear voluntarily before House committees.161 A standing committee may also report to the House of Commons recommending that a message be sent to the Senate requesting that the Senator appear before the committee.162 Under the Rules of the Senate, however, even if the Upper House acquiesces to the request of a Commons committee to have a Senator appear before it, that Senator need not do so unless he or she thinks fit.163
Although they can send for certain persons, standing committees do not have the power to punish a failure to comply with their orders in this regard. Only the House of Commons has the disciplinary powers needed to deal with this type of offence.164 If a witness refuses to appear, or does not appear, as ordered, the committee’s recourse is to report the matter to the House.165 Once seized with the matter, the House takes the measures that it considers appropriate.166
To Send for Papers and Records
The Standing Orders state that standing committees have the power to order the production of papers and records, another privilege that is rooted in the Constitution and which is delegated by the House. In carrying out their responsibility to conduct studies and inquiries, standing committees often have to rely on a wide array of papers to aid them in their work. Such papers, understood to mean written material or items which serve as evidence, information or testimony, may include reports, briefs, notes, statistics, agreements, surveys, calendars, agendas, booklets, photographs, audio recordings167 and audiovisual documents.
Committees usually obtain such papers simply by requesting them from their authors or owners. If a request is denied, however, and the standing committee believes that specific papers are essential to its work, it can use its power to order the production of papers by passing a motion to that effect. The motion usually orders the person to whom it is directed to provide the committee with the papers in question by a particular date or deadline.168
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.169 There is no limit on the types of papers likely to be requested; the only prerequisite is that the papers exist170 in hard copy or electronic format, and that they are located in Canada. They can be papers originating from or in the possession of governments, or papers the authors or owners of which are from the private sector or civil society (individuals, associations, organizations, et cetera).171
In practice, standing committees may encounter situations where the authors of or officials responsible for papers refuse to provide them or are willing to provide them only after certain portions have been removed. Public servants and Ministers may sometimes invoke their obligations under certain legislation172 to justify their position.173 Companies may be reluctant to release papers which could jeopardize their industrial security174 or infringe upon their legal obligations, particularly with regard to the protection of personal information. Others have cited solicitor-client privilege in refusing to allow access to legal papers or notices.175
These types of situations have absolutely no bearing on the power of committees to order the production of papers and records.176 No statute or practice diminishes the fullness of that power rooted in House privileges unless there is an explicit legal provision to that effect,177 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. However, it may not be appropriate to insist on the production of papers and records in all cases.178
In cases where the author of or the authority responsible for a record refuses to comply with an order issued by a committee to produce documents, the committee essentially has three options.179 The first is to accept the reasons and conditions put forward to justify the refusal; the committee members then concede that they will not have access to the record or accept the record with passages deleted. The second is to seek an acceptable compromise with the author or the authority responsible for access to the record.180 Normally, this entails putting measures in place to ensure that the record is kept confidential while it is being consulted. These include in camera review,181 limited and numbered copies, arrangements for disposing of or destroying the copies after the committee meeting, et cetera.182 The third option is to reject the reasons given for denying access to the record and uphold the order to produce the entire record.
Since committees do not have the disciplinary power to sanction failure to comply with their order to produce records, they can choose to report the situation to the House and request that appropriate measures be taken.183 Among the options available to the House is to endorse the committee’s order to produce records by concurring in its report, thus making it a House order to produce the requested records.184 In the past, the House has sometimes found persons failing to comply with an order to produce records guilty of contempt of Parliament. On occasion, it has even exercised its disciplinary powers.185
To Sit While the House Is Sitting and When It Stands Adjourned
The Standing Orders give standing committees the power to meet when the House is sitting and when the House is adjourned. This allows committees to meet as they see fit during a session of Parliament.186
However, two provisions in the Standing Orders set limits on that freedom. First, a standing committee cannot sit at the same time as a legislative committee on a bill emanating from a department or agency whose activities the standing committee is responsible for overseeing.187 Second, when the bells are sounded to call in the Members to a recorded division in the House, a standing committee must suspend its meeting, unless there is unanimous consent of the members of the committee to continue to sit.188
In practical terms, committees meeting within the Parliamentary Precinct are limited by the availability of meeting rooms. Committees are given access to meeting rooms by order of priority based on criteria prescribed in the Standing Orders for periods when the House stands adjourned and when the House is sitting.189 When committees are travelling in Canada, their power to meet is limited to the places and dates delineated in the special travel authorization granted by the House.190
To Sit Jointly with Other Standing Committees
Standing committees have the power to meet jointly with other standing committees.191 The Standing Orders do not limit the number of standing committees that can meet together, but joint meetings usually involve only two parliamentary committees.
This power allows a standing committee to meet with another standing committee,192 and by extension, a subcommittee,193 provided the subcommittee has been given this power by the committee under which it operates. It is also possible for two subcommittees in this situation to meet jointly.194 The Standing Orders do not provide for joint meetings with legislative or special committees or with parliamentary committees of other chambers.195
Joint meetings are voluntary and normally deal with matters of interest to the committees involved. The committees should agree on the subject and the terms in advance of the meeting. All House committees are equal; none can compel another to participate in a joint meeting.196
Joint meetings usually take place following formal or informal discussions between the committees, and sometimes come about as a result of discussions or correspondence between committee Chairs, often at the direction of the respective committees.197 On other occasions, a committee officially adopts a motion inviting another committee to a joint meeting for a specific purpose, or both committees adopt a motion to that effect.198 Each committee is convened separately by its Chair.199
In joint meetings, each committee sits and exercises its powers separately from the other committee. The power given to standing committees is the power to meet jointly, not to form a new committee or a new joint entity. Consequently, if decisions are made, they are made by each committee and its members under its own rules. Each committee produces its own minutes of proceedings as if the meeting were a regular meeting. If a report is adopted during a joint meeting, each committee may present to the House a separate report, even though the two reports will be identical.200
To Print from Day to Day Papers and Evidence as May Be Ordered by Them
The Standing Orders authorize standing committees to publish from day to day such papers and evidence as they may order be printed.201 It has become the practice to publish the Minutes of Proceedings, the Evidence and reports that committees present to the House. The publications provide a permanent record of evidence, decisions and conclusions of studies. Minutes of Proceedings are the official record of committee work and are produced and signed by the clerk of the committee. They are the equivalent of the Journals of the House. Evidence is the edited and revised transcript of what is said before a committee by the members and by witnesses.202 Reports to the House, meanwhile, may be short documents of less than one page in length or far more substantial and separately bound works. All committee publications are published in both official languages.
The Standing Order concerning the power to print reflects the earlier practice of making all these papers available in hard copy. In the past, committees produced a document called Minutes of Proceedings and Evidence that contained the material now provided in two publications: Minutes of Proceedings and Evidence. Reports to the House that were considered too short to merit separate publication used to be included in Minutes of Proceedings and Evidence. In 1994, the House began posting its publications on the Internet. Since September 1998, Minutes of Proceedings and Evidence have been available in electronic form only. As with reports, they are available on the Committees website.203 Committees print a limited number of copies of reports for presentation to the House. In addition to the copies presented in the House, committees may also decide to print extra copies of a report.204
The power to print has gradually changed and is now, by and large, a power to publish. It has been ruled that the power of a committee to have papers printed also includes the power not to publish.205
To Report to the House from Time to Time
In order to carry out their roles effectively, committees must be able to convey their findings to the House. The Standing Orders provide standing committees with the power to report to the House from time to time,206 which is generally interpreted as being as often as they wish. A standing committee exercises that prerogative when its members agree on the subject and wording of a report and it directs the Chair to report to the House, which the Chair then does.207
Like all other powers of standing committees, the power to report is limited to issues that fall within their mandate or that have been specifically assigned to them by the House. Every report must identify the authority under which it is presented. In the past, the Speaker of the House has ruled a report or a specific part of a report to be out of order when a committee has gone beyond its order of reference or addressed issues not included in the order.208 Generally, such concerns are brought to the Speaker’s attention through a point of order raised in the House after the report has been presented.
There are three broad categories of reports likely to be presented by standing committees: administrative or procedural reports; reports based on an order of reference from the House; and substantive reports based on in-depth studies. Depending on rules and practices, the form, content and time frame for the presentation of reports can vary considerably from category to category.
Administrative and procedural reports are essentially reports in which standing committees ask the House for special permission or additional powers, or those that deal with a matter of privilege or procedure arising from committee proceedings.209 Most of the time the decision to report in these cases is made voluntarily and the committee reports at the time it deems fit, unless a deadline has been set by the House.210
Reports that are based on an order of reference from the House generally follow a set form depending on the type of study. Although these reports may be substantive in nature with the committee making recommendations following a comprehensive study,211 most are very succinct. For example, reports on estimates simply state whether the committee adopted, reduced or negatived the votes.212 Such reports must, however, be presented within the period prescribed by the Standing Orders, failing which the estimates are deemed to have been reported.213
When standing committees study an appointment or proposed appointment, their reports on the matter usually indicate that they considered the appointment and briefly state their opinion on the candidate’s qualifications and abilities. The Standing Orders do not set a deadline for presenting such reports, but they do prescribe a time frame for committee consideration of appointments or proposed appointments.214
Reports on the study of bills can be very short or extremely lengthy. If the committee did not amend the bill in the course of its study, the report simply states that the committee studied the proposed legislation and is reporting it without amendment. However, if the committee adopted amendments to the bill, the report provides details of each amendment. The Standing Orders require committees to report any amendment to a public bill.215 Committees are required to present a report on every private bill referred to them.216 There is no requirement for standing committees to report on a private Member’s bill referred to them, but the Standing Orders provide that, if no report is presented within a certain period, the bill is deemed to have been reported without amendment.217
Substantive reports are usually produced when a committee decides to undertake on its own initiative a study on an issue within its mandate.218 From time to time substantive reports are also produced by committees that wish to make further recommendations to the House on orders of reference (bills, estimates, appointments) in addition to presenting their usual reports.219 Normally, exercising the power to report in the case of substantive reports is voluntary and done within the time frame chosen by the committee. The content of substantive reports is determined entirely by the committee. Substantive reports can also be very short, presenting nothing more, for example, than resolutions adopted by the committee,220 but are often long in cases where the committee has conducted a comprehensive study on a particular subject. A study may give rise to one or more reports, and interim reports may be presented prior to a final report.221
To Append Dissenting or Supplementary Opinions or Recommendations to a Report
A committee report reflects the opinion of the committee and not that of the individual members. Members of the committee who disagree with the decision of the majority may not present a separate report. There is no provision in the Standing Orders or the practices of the House for presenting minority reports.222
However, the Standing Orders give any member of a committee belonging to a recognized party the power to append dissenting or supplementary opinions or recommendations223 to the report following the signature of the committee Chair.224 Committee members may not, however, append such opinions or recommendations to reports on bills or estimates.
The Standing Orders also limit the length of dissenting or supplementary opinions or recommendations to 10 pages or the length of the report, whichever is shorter. Committees set a deadline for submission to the committee clerk and often specify the format in which it is to be submitted (e.g., in one or both official languages, electronic format).225
Committees are not responsible for the content of these opinions. They are not, strictly speaking, part of the report. The authors of these opinions alone are responsible for their content.226 However, the Speaker has pointed out that the authors must strictly adhere to parliamentary practice in both the wording and format of supplementary or dissenting opinions.227
To Delegate to Subcommittees All or Any of Their Powers
The Standing Orders specifically authorize standing committees to delegate to subcommittees all or part of their powers, except for the power to report to the House.228 There is no limit to the number of subcommittees that can be established by a committee. This power is exercised when a committee adopts a motion to create a subcommittee, giving it a membership, mandate, direction and powers.229
Standing Joint Committees
Since a joint committee exists only by order of both Houses, the powers provided to it by the House of Commons can be exercised by the committee only if it is similarly empowered by the Senate.
Unlike the Standing Orders of the House of Commons,230 the Rules of the Senate prohibit committees from meeting during a sitting of the Senate and impose certain requirements on meeting when the Upper House is adjourned for more than a week.231 The Rules of the Senate do not provide its committees with the power to hold joint meetings with other standing committees.
Various other powers, however, are conferred by both the Senate and the House of Commons and may be fully exercised by standing joint committees: the power to examine and inquire;232 the power to send for persons, papers and records; the power to print papers and evidence; the power to report;233 and the power to establish subcommittees.234 Although the Rules of the Senate do not specifically provide for this, the Upper House, in practice, does allow its committees to append to their reports “comments” from some members.235
A legislative committee is empowered to examine and inquire into a bill236 referred to it and to report the same with or without amendments. It is not empowered to present a substantive report concerning the bill,237 although it may present administrative or procedural reports.238 A legislative committee may also be created to prepare and bring in a bill.239
In examining a bill, a legislative committee may send for officials of government departments, agencies and Crown corporations and other persons whom the committee deems competent in technical matters.240 It may also send for papers and records, sit while the House is sitting, sit while the House stands adjourned, and print papers and evidence.241 A legislative committee may also delegate to a subcommittee on agenda and procedure the power to schedule meetings of the committee and to send for witnesses, papers and records, subject to approval by the full committee.242 A legislative committee does not have the power to sit jointly with other parliamentary committees243 or to append dissenting or supplementary opinions or recommendations to its reports.
Special committees possess only those powers that are provided to them by the House in the order of reference that establishes them244 or by subsequent motion. Depending on whether its mandate concerns a particular subject matter or consideration of a bill, a special committee may be given the powers of a standing245 or legislative246 committee.
Special Joint Committees
Special joint committees possess only those powers that are provided to them by both Houses in the order of reference establishing them. As a general rule, special joint committees receive the powers of standing committees of the House,247 but may sometimes receive more limited powers.248
Subcommittees possess only those powers that are conferred on them by the main committees to which they report or by the House, if they are created directly by the House and it has stipulated their powers. For a subcommittee created by a committee or one created by the House for which the House has not identified powers, it is up to the main committee to specify the powers it wishes to delegate to the subcommittee. In all cases, the powers conferred on a subcommittee may not exceed those of the main committee that created it nor include powers that the main committee does not possess. Powers may be delegated at one time or at various times. Similarly, if necessary a committee may withdraw powers previously conferred on a subcommittee.
The powers that a committee may delegate to subcommittees may be limited by the Standing Orders or by orders of the House. Standing committees may not delegate their power to report to the House.249 Special committees that have the power to create subcommittees may delegate all their powers, unless the order of reference establishing them includes a restriction in this regard.250 A legislative committee may delegate to a subcommittee on agenda and procedure only its power to schedule meetings, and to send for witnesses, papers and records, subject to approval by the full committee.251 It may not, for instance, delegate its power to study and examine the bill under consideration, or to report on it. Standing joint committees may delegate all their powers to subcommittees, except the power to report to the House of Commons and the Senate.252 Special joint committees empowered to create subcommittees may delegate all their powers to them, unless the order of reference establishing them contains restrictions in this regard. For the most part, they may not delegate their power to report to both Houses.253
Obtaining Additional Powers
If a standing, legislative or special committee requires additional powers, they may be conferred on the committee by an order of the House, which is by far the most common approach,254 or by concurrence in a committee report requesting the conferring of those powers.255 Standing joint and special joint committees may obtain additional powers in the same way, except that authorization must come from both the House and the Senate.256
When a subcommittee requires additional powers, it may request them through a report to the main committee.257 If the powers requested exceed what the main committee may delegate, the main committee may request them through a report to the House or the House may adopt a motion to grant them directly.258