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Madam Speaker, I am rising on a question of privilege arising from the troubling notice published by the Parliamentary Budget Officer on Thursday afternoon. In letters to the Speaker, the Deputy Speakers and their counterparts in the Senate, Jason Jacques wrote to provide notice, under section 79.42 of the Parliament of Canada Act, that he is of the opinion he has “not been provided with free and timely access to information requested under section 79.4 of the Act.”
Under the latter provision, subsection 79.4(1) of the Parliament of Canada Act reads:
The Parliamentary Budget Officer is entitled, by request made to the head of a department or of a parent Crown corporation, to free and timely access to any information under the control of the department or parent Crown corporation that is required for the performance of his or her mandate.
Specifically, Mr. Jacques has indicated that he has been stonewalled in respect to requests about budget measures, specifically the so-called comprehensive expenditure review, addressed to five ministers of the Crown, namely the , , , and the . I will note, on October 30 in the operations committee, when questioned on this, the stated he would provide the information to the PBO. Again, he has not done so.
The Parliamentary Budget Officer is mandated by Parliament to, among other things, analyze budgets tabled in the House by the . In the course of doing just that for the budget tabled on November 4, he wrote to the minister specifically requesting information concerning “the savings of the CER [the comprehensive expenditure review] by program, planned personnel reductions, and details of potential service level impacts of the years 2026-27 to 2029-30”.
On behalf of the ministers, the Comptroller General of Canada answered that the information will not be provided within the timelines required by the Parliamentary Budget Officer. Again, I go back to October 30 in the operations committee when the assured the committee that information would be provided. It remains to be seen if the information will ever be shared with Mr. Jacques, especially in light of news that the government has launched a job posting for a new Parliamentary Budget Officer, but I digress.
Mr. Jacques' letter explained the importance of this information being provided in a timely manner. He says:
The [comprehensive expenditure review's] proposed cuts of $60 billion over the next five years are an important aspect of the Government's economic and fiscal plan outlined in Budget 2025. Given that parliamentarians will be asked to vote on this plan next week [tonight, in fact], I am seeking your support to compel the Comptroller General of Canada to release the necessary information without delay. Timely disclosure is essential to ensure parliamentarians can engage in a fully informed debate on these significant measures. To meet this objective, I kindly request your response to this letter at your earliest convenience.
Parliamentarians need this information, and we need it now. Provision of the Parliament of Canada Act, which the Parliamentary Budget Officer relies upon to seek information from the government, largely mirrors a similar authority the Auditor General enjoys under subsection 13(1) of the Auditor General Act. Similar to section 79.42 of the Parliament of Canada Act, which triggered Mr. Jacques's letter to the two Speakers, the Auditor General is obliged by paragraph 7(1)(b) of the Auditor General Act to report annually to the House of Commons on whether, in carrying on the work of her office, she received all the information and explanations she required.
While the current statutory framework for the Parliamentary Budget Officer's information request was enacted in 2017 as part of the Liberal Budget Implementation Act, which was another omnibus bill, by the way, the Auditor General's parallel authorities, upon which I would argue the PBO's authority was modelled, has something of an established history. In 1982 and 1983, Pierre Trudeau's government denied information to then auditor general Kenneth Dye respecting the takeover of Petrofina by then Crown corporation Petro-Canada. This denial of information went to the courts, going all the way to the highest court in the land.
In the 1989 decision in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), Chief Justice Dickson, writing for a unanimous Supreme Court of Canada decision, described in pages 98 and 99 the interaction of the two statutory provisions concerning the Auditor General's right to information from the government and duty to report any failures to this House. It states:
The section refers to a duty to report of the Auditor General, but can, in my view, simultaneously be characterized as a reporting remedy....
There must be some purpose for conveying such information to the House of Commons and one must assume that Parliament intended the House of Commons to exercise its judgment as to whether to seek the information its servant had not been able to secure on its behalf.
At page 103, the then chief justice of Canada explained that an Auditor General does not have judicial recourse to secure access to information required, writing:
In this case, it is reasonable to interpret s. 7(1)(b) as the Auditor General's only remedy for claimed denials of s. 13(1) entitlements not only because the text is conducive to such an interpretation but also because, in the circumstances, a political remedy of this nature is an adequate alternative remedy. The Auditor General is acting on Parliament's behalf carrying out a quintessentially Parliamentary function, namely, oversight of executive spending pursuant to Parliamentary appropriations. Where the exercise of this auditing function involves the Auditor General in a dispute with the Crown, this is in essence a dispute between the legislative and executive branches of the federal government. Section 7(1)(b) would seem to be the means by which Parliament itself retains control over the position it wishes to take in such a dispute.
The reason for judgment concludes on page 110 by observing, “Nothing in the foregoing should be taken as prejudicing the right of the House of Commons to deal with a s. 7(1)(b) report as it sees fit.”
In summary, the Supreme Court of Canada has said it has no role in addressing a breach of subsection 13(1) of the Auditor General Act, but it is up to the House to vindicate the powers conferred upon the Auditor General, an officer of Parliament. In turn, I would respectively submit that identical conclusions should be drawn in relation to the Parliamentary Budget Officer and section 79.4 of the Parliament of Canada Act.
That is why I am turning to you on this question of privilege so the House can consider how to address itself in this situation.
Page 122 of the House of Commons Procedure and Practice, third edition, which I am sure the Speaker has memorized, speaks to the right of the House to regulate its own internal affairs. It states, “where the application of statute law relates to a proceeding in Parliament or a matter covered by privilege, it is the House itself which decides how the law is to apply”.
At page 180 of the Parliamentary Privilege in Canada, second edition, offers this insight, stating:
...each House interprets and administers the law of Parliament in order to find breaches of privilege or contempt in appropriate cases, and interprets any statute law setting out procedures to be followed. This is the only part of the general and public law of Canada in which the House has jurisdiction for purposes of interpretation and adjudication. Otherwise, “the Chair is in no position to interpret either the law or the Constitution...”.
To my mind, I believe this question of privilege is the most appropriate means for this proceeding.
Bosc and Gagnon write, at page 59, “The House has the authority to assert privilege where its ability has been obstructed in the execution of its functions”.
At page 60, they add:
Any conduct which offends the authority or dignity of the House, even though no breach of any specific privilege may have been committed, is referred to as a contempt of the House. Contempt may be an act or an admission. It does not have to actually obstruct or impede the House or a Member; it merely has to have the tendency to produce such results.
More specifically, Maingot writes, at page 240, “Statute laws affecting the House of Commons, such as tabling of documents, may constitute contempt if not adhered to.”
In delivering a ruling about a minister's failure to present documents by a deadline fixed by a statute, Speaker Fraser, on April 19, 1993, at page 18104 of the Debates, associated himself with the opinion that “a statutory provision and statutes are the highest form of command that can be given by this House. In my view the disregard of that legislative command, even if unintentional, is an affront to the authority and dignity of Parliament as a whole and of this House in particular”.
In going on to find a prima facie case of privilege, the Chair explained:
In the present case it is not merely an order of the House that has been violated, but a law duly assented to by the Crown as a constituent part of Parliament. The delegate of the Crown has not met the exigencies of the law of Parliament.
As I have said before, Canada is not an executive democracy nor an administrative democracy, but a parliamentary democracy....
The requirements contained in our rules and statutory laws have been agreed upon by this House and constitute an agreement which I think all of us realize must be respected.
As a 1989 Supreme Court decision observed, “The Auditor General is acting on Parliament's behalf carrying out a...Parliamentary function—namely, the oversight of executive spending pursuant to Parliamentary appropriations.”
The Parliamentary Budget Officer is performing, on our behalf, an equally essential role but at the front end of the financial cycle, providing us with objective, non-partisan analysis of the budget proposals of the executive. If the Parliamentary Budget Officer is denied access to the information he requires to do his job, on the legitimate and reasonably explained timelines he has established, we, as members of the House of Commons, are impeded from carrying out our constitutional duty of holding the government to account.
I will note that, when refusing this information to the Parliamentary Budget Officer, the government argued that it could not possibly allow parliamentarians the information to vote on until it was actually voted on and passed by the House.
King Edward I, when calling the model Parliament, was famous for saying that, basically, what is being presented for all should be decided by all. The House should be deciding that. We cannot decide that if the government is hiding the information from us. I would submit that the denial of information requested by the Parliamentary Budget Officer, our officer, is analogous to the committee's request for documents going unanswered.
Bosc and Gagnon explain, on page 138-39:
If a committee’s request that it be given certain documents is met with resistance or disregarded, the committee may adopt a motion ordering the production of the requested documents. If such an order is ignored, the committee has no means to enforce the order on its own. It may report the matter to the House and recommend that appropriate action be taken. It is then a decision of the House whether or not to issue an order for the production of papers. This may be done by the adoption of a motion or by concurring in the committee’s report.
Like a committee, Mr. Jacques has reported his distress. In respect of Parliament's standing statutory order to produce information, the Parliamentary Budget Officer's notice letter indicates an unequivocal call for help: “I am seeking your support to compel the Comptroller General of Canada to release the necessary information without delay.”
However, unlike a committee's report, we do not have the option of a motion to concur in Mr. Jacques's letter. That said, a concurrence motion would not even, in these circumstances, be necessary. Upon receiving a report of the finance committee's distress, on March 9, 2011, page 8840 of the Debates, Speaker Milliken found a prima facie case of privilege in his ruling.
The Chair stated:
...there is no doubt that an order to produce documents is not being fully complied with, and this is a serious matter that goes to the heart of the House's undoubted role in holding the government to account.
For these reasons, the Chair finds that there are sufficient grounds for finding a prima facie question of privilege in this matter.
I understand that the comptroller general responded to the Parliamentary Budget Officer with arguments as to why they cannot answer in a timely way.
I would return to the words of Speaker Milliken, which I agree would be equally applicable in the present context: “It may be that valid reasons exist. That is not for the Chair to judge. A committee empowered to investigate the matter might, but the Chair is ill-equipped to do so.”
Although there is no specific precedent ruling in the House of Commons on this point, Bosc and Gagnon recall for us, at page 81, that the law of contempt of Parliament is “extremely fluid and most valuable for the Commons to be able to meet novel situations.”
I ask you, Mr. Speaker, to find a prima facie case of privilege so that the House may discuss the means to which we can best provide the support to the Parliamentary Budget Officer that he seeks. While it is well established that Speakers themselves do not rule on questions of law, the fact that my question of privilege relates to a requirement under an act of Parliament does not mean that it is beyond your purview to render a decision and find a prima facie case of privilege.
The 1993 ruling of Speaker Fraser, which I quoted earlier, concerned a tabling deadline fixed by the customs tariff. More recently, another of your predecessors made rulings concerning provisions of the Canada Elections Act with respect to members' right to sit and vote in the House on June 18, 2013, page 18550 of the Debates; October 17, 2013, page 66 of the Debates; and November 4, 2014, page 9183 of the Debates.
In other words, Mr. Speaker, you can, and I would argue that you should, find a prima facie case here so that the House may address the government's failure to be transparent.
Maingot explains, at page 221, the nature of such a ruling:
A prima facie case of privilege in the parliamentary sense is one where the evidence on its face as outlined by the Member is sufficiently strong for the House to be asked to debate the matter and to send it to a committee to investigate....
As Speaker Fraser said in an October 10, 1989, ruling from page 4457 of the Debates, “Normally in cases of doubt, it has been the practice for Speakers to allow an appropriate motion to go forward for a decision of the House.”
Another of your predecessors, Speaker Jerome, on March 21, 1978, at page 521 of the Journals, endorsed these comments, found in a February 1967 report of a Select Committee on Parliamentary Privilege in the United Kingdom:
...the question which the Speaker should ask himself, when he has to decide whether to grant precedence over other public business to a motion which a Member who has complained of some act or conduct as constituting a breach of privilege desires to move, should be, not—do I consider that, assuming that the facts are as stated, the act or conduct constitutes a breach of privilege, but could it reasonably be held to be a breach of privilege, or to put it shortly, has the Member an arguable point? If the Speaker feels any doubt on the question, he should, in my view, leave it to the House.
Since the courts determined, after the original Trudeau government stonewalled an auditor general, that they have no jurisdiction, and if you decide there is also no place for the House to intervene in support of our officers of Parliament, then that would render moot the very word of Parliament. It would undermine a core principle of statutory interpretation that Parliament does not speak in vain. That, I would submit, is my arguable point.
Sir John Bourinot, a former clerk of this House, wrote in Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, at page 203, “Each House is bound by every consideration of self-interest and justice to observe strictly its rules and standing orders, and to rebuke every attempt to evade or infringe them.” That is exactly what we are being called upon to do here as well.
If Parliament is to expect the accountability from the government that it prescribes in law, it must stand up for itself and for its officers, such as the Parliamentary Budget Officer, when the government's efforts fall short.
Should you agree, I am prepared to move an appropriate motion.