Mr. Speaker, I rise today on a question of privilege regarding an incident that occurred in committee of the whole on July 8, 2020. I know you are aware of this, because I made this case to you a couple of weeks ago and you came back to the House and identified the unique circumstances. I thought that now that the House is sitting, I would expand on the remarks I made that day.
Mr. Speaker, I would first like to present to you my argument that in this special case it is within your authority and duty as Speaker to rule on the matter raised in committee of the whole. As you yourself noted on July 8:
...the situation is somewhat particular in that the question of privilege was raised in the committee of the whole and the procedure for dealing with it is quite different than it is in the House.
What complicates this matter even further is that the work of the committee of the whole today and the work scheduled this summer are strictly governed by an order of the House that limits these proceedings and dictates that the committee must now rise.
The situation is more than particularly complicated. The House order adopted on May 26 would appear to run counter to some of the more important tenets of our parliamentary democracy, such as Parliament's authority to defend members' privileges or take action to keep the executive accountable. Although the Liberals, with the support of the NDP, provided us with these occasions to talk in committee of the whole, they effectively prevented members from taking any action.
Mr. Speaker, that is the point of my submission to you today and why I believe you should intervene on this question of privilege that arose in committee of the whole on July 8.
Page 156 of the third edition of House of Commons Procedure and Practice explains the procedure when a member rises on a question of privilege in committee of the whole:
...the Chair will hear the question of privilege. As in a standing, special, or legislative committee, the role of the Chair is to decide whether the matter raised does in fact relate to privilege. If the matter raised by the Member touches on privilege and relates to events in the Committee of the Whole, the Chair will entertain a motion that the events be reported to the House.
The terms of the May 26 order do not provide for a motion to be moved. Therefore, the matter of my question of privilege cannot be reported to the House.
Pages 152 and 153 of the third edition of House of Commons Procedure and Practice note:
Speakers have consistently ruled that, except in the most extreme situations, they will hear questions of privilege arising from committee proceedings only upon presentation of a report from the committee which deals directly with the matter and not as a question of privilege raised by an individual Member.
The extreme situation noted in that passage was from 1992, when Speaker Fraser found a prima facie case of privilege with respect to threats made to a witness who had appeared before a subcommittee, without waiting for a report. The ruling, found at page 14631 of the Debates, from December, 4, 1992, points out that there are occasions on which it is not appropriate to wait for a report from the committee before dealing with a serious breach of privilege. In that case, Mr. Speaker Fraser was faced with the fact that it might well be a period of several months before the subcommittee could meet to deal with the matter.
In this case, the problem is more substantive than just a simple matter of delay. It would appear that the committee of the whole established by the government is unable to take any action except to rise, as you explained to us on July 8, Mr. Speaker.
With respect to the content of my question of privilege, Mr. Speaker, I would like to bring your attention to a matter that was raised on November 3, 1978, by the member for Northumberland—Durham. The member charged that he had been deliberately misled by a former solicitor general. The member had written a letter in 1973 to the solicitor general, who assured him that as a matter of policy the RCMP did not intercept the private mail of Canadians. On November 1, 1978, during testimony before the McDonald Commission, the former commissioner of the RCMP stated that the RCMP did indeed intercept mail on a very restricted basis. The Speaker ruled on December 6, 1978, and found that this did constitute a prima facie case of privilege.
The issue I raised on July 8 is similar in that a senior officer of the House, the Ethics Commissioner, presented evidence that directly contradicts the evidence the Prime Minister gave the committee in response to my question about the co-operation that his office will or will not be providing to the Ethics Commissioner. The Prime Minister said, in reference to the SNC-Lavalin scandal, that he took unprecedented steps so that the Ethics Commissioner could, “fully investigate the matter at hand.”
On July 8, I referenced three points that the Ethics Commissioner made in the “Trudeau II Report”. They directly contradicted the Prime Minister.
First, the commissioner said:
Because of my inability to access all Cabinet confidences related to the matter I must, however, report that I was unable to fully discharge the investigatory duties conferred upon me by the Act.
Second, he noted:
Because of the decisions to deny our Office further access to Cabinet confidences, witnesses were constrained in their ability to provide all evidence. I was, therefore, prevented from looking over the entire body of evidence to determine its relevance to my examination. Decisions that affect my jurisdiction under the Act, by setting parameters on my ability to receive evidence, should be made transparently and democratically by Parliament, not by the very same public office holders who are subject to the regime I administer.
Third, he said:
During this examination, nine witnesses informed our Office that they had information they believed to be relevant, but that could not be disclosed because, according to them, this information would reveal a confidence of the Queen's Privy Council and would fall outside the scope of Order in Council 2019-0105.
This is very important, because as we are currently witnessing, the Prime Minister is in a very similar situation. He is assuring members of the House and Canadians that he will co-operate fully, as he said he did in the previous investigation, which we now know to be false.
On February 1, 2002, the Speaker Milliken ruled on a matter regarding the former minister of national defence. At the time, the previous member for Portage—Lisgar alleged that the former minister of national defence deliberately misled the House as to when he knew that prisoners taken by Canadian JTF 2 troops in Afghanistan had been handed over to the Americans. In support of that allegation, he cited the minister's responses in question period on two successive days. The Speaker considered the matter and found that there was a prima facie question of privilege. He said, “The authorities are consistent about the need for clarity in our proceedings and about the need to ensure the integrity of the information provided by the government to the House.” The authorities to which Speaker Milliken was referring include, but are not limited to, House of Commons Procedure and Practice, second edition, which states on page 115, “Misleading a Minister or a Member has also been considered a form of obstruction and thus a prima facie breach of privilege.”
The Speaker in 2002 accepted the minister's assertion that he had no intention to mislead the House and made the following statement: “Nevertheless this remains a very difficult situation.” The Speaker went on to say:
On the basis of the arguments presented by hon. members and in view of the gravity of the matter, I have concluded that the situation before us where the House is left with two versions of events is one that merits further consideration by an appropriate committee, if only to clear the air. I therefore invite the hon. member for Portage—Lisgar to move his motion.
Of course, the House is presented with two versions of events. We have the Prime Minister's version, where he claims he fully co-operated, and we have the report from the Ethics Commissioner, which directly contradicts that claim.
On February 25, 2014, the former House leader of the official opposition raised a question of privilege regarding statements made in the House by the former member for Mississauga—Streetsville. He said the hon. member for Mississauga—Streetsville had deliberately misled the House during debate on Bill C-23, the Fair Elections Act, when the member stated that he had witnessed evidence of voter fraud first-hand. The former House leader further argued that the matter was not resolved by the statements made by the member for Mississauga—Streetsville on February 24 and 25, when he admitted that, contrary to his original claim, he had not actually witnessed what he had originally claimed to have witnessed. In his view, this was not a simple case of someone misspeaking. He argued, rather, that in this case the member deliberately chose to take something he knew not to be true and present it as eyewitness evidence, something so egregious that it constituted contempt.
On March 3, 2014, the Speaker delivered his ruling, citing what Speaker Milliken was faced with in February 2002, when the then minister of national defence, Art Eggleton, provided contradictory information to the House. In a ruling on a question of privilege raised about the contradiction, Speaker Milliken stated on February 1, 2002, at page 8581 of the Debates, “I am prepared, as I must be, to accept the minister's assertion that he had no intention to mislead the House.”
The Speaker went on to conclude:
In keeping with that precedent, I am prepared to accord the same courtesy to the member for Mississauga—Streetsville.
At the same time, the fact remains that the House continues to be seized of completely contradictory statements. This is a difficult position in which to leave members, who must be able to depend on the integrity of the information with which they are provided to perform their parliamentary duties.
Accordingly, in keeping with the precedent cited earlier in which Speaker Milliken indicated that the matter merited “...further consideration by an appropriate committee, if only to clear the air”, I am prepared in this case for the same reason to allow the matter to be put to the House.
As you know, Mr. Speaker, in deciding these matters, Speakers take into consideration three principles. The first is that the statement was misleading.
This was clearly the case. The Prime Minister gave us a version of events that was obviously not true.
Second, the member knew at the time of the statement that it was incorrect. There is no doubt that the Prime Minister must have known that it was incorrect. The title of the report was the Trudeau II Report, because it was the second time he was found guilty of ethics violations. He also knows it be false, because in the previous Parliament, I questioned him regularly on his obstruction of that investigation.
Third, the member making the statement intended to mislead the House.
I believe this matter has met all three of these principles, Mr. Speaker.
Getting back to your comment in committee on July 8 about this matter being complicated, I refer you to Joseph Maingot's second edition of Parliamentary Procedures in Canada, page 227:
In the final analysis, in areas of doubt, the Speaker asks simply: Does the act complained of appear at first sight 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...leave it to the House.
In a ruling of October 24, 1966, at page 9005 of the Debates, the Speaker said:
In considering this matter I ask myself: What is the duty of the Speaker in cases of doubt? If we take into consideration that at the moment the Speaker is not asked to render a decision as to whether or not the article of complaint constitutes a breach of privilege...considering also that the Speaker is the guardian of the rules, rights and privileges of the House and of its members and that he cannot deprive them of such privileges when there is uncertainty in his mind.... I think at this preliminary stage of the proceedings, the doubt which I have in my mind should be interpreted to the benefit of the member.
Mr. Speaker, you have clearly indicated that this is uncharted territory. There are likely very few scenarios that could guide you specifically as to the proper course of action, because this has not happened before in our parliamentary system. I believe, therefore, you should leave it to the House to decide, and if you do find that there is a prima facie question of privilege, I am prepared to move the appropriate motion.