44th Parl. 1st Sess.
September 16, 2024 11:00AM
- Sep/16/24 12:00:53 p.m.
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Mr. Speaker, I am rising on a question of privilege following my notice under Standing Order 48 concerning the failure of the government to comply with the order that the House adopted on Monday, June 10.
A majority of the House voted that day to compel the government to produce a series of unredacted records concerning Sustainable Development Technology Canada, a body engulfed in Liberal scandal in recent years, leading to its being dubbed the “green slush fund”. For the purpose of making those documents available to the Royal Canadian Mounted Police, the government has failed to comply and failed to obey this House order, as we learned this summer when the law clerk and parliamentary counsel reported to the House through you on July 17.
Mr. Speaker, you are being put into a situation like your predecessors were so conspicuously placed in, to address a serious impasse over document production. As your well-regarded predecessor, Speaker Milliken, said on April 27, 2010, at page 2042 of the Debates, in a widely acclaimed ruling, “Before us are issues that question the very foundations upon which our parliamentary system is built. In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and in fact an obligation.”
The current obligation originates from the Conservative opposition motion adopted on the heels of an utterly scandalous Auditor General's report. Over the summer, yet another officer of Parliament, the Conflict of Interest and Ethics Commissioner, also weighed in, finding the former Liberal hand-picked chair of SDTC guilty of breaking the Conflict of Interest Act twice.
There is little doubt the Liberal government must be held to account over this debacle, which is why the House decided to exercise one of its ancient powers to compel the production of papers. Indeed, as a mark of how old the power is, Erskine May treated it as a settled matter in the first edition of his self-titled treatise on parliamentary procedure, published in 1844, at page 309: “Parliament, in the exercise of its various functions, is invested with the power of ordering all documents to be laid before it which are necessary for its information.”
House of Commons Procedure and Practice, third edition, elaborates, at pages 984 and 985, upon the scope of that power:
The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the types of papers likely to be requested; the only prerequisite is that the papers exist in hard copy or electronic format, and that they are located in Canada. 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)....
No statute or practice diminishes the fullness of that power rooted in House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.
This is a critical point and one to which I will return.
In a May 2019 report on the power to send for papers, the United Kingdom House of Commons procedure committee concluded, at paragraph 16, that “The power of the House of Commons to require the production of papers is in theory absolute. It is binding on Ministers, and its exercise has consistently been complied with by the Government.”
In recent years, our own House has, however, encountered several incidents of government refusals to provide records which it or its committees have ordered to be produced. Most famously, there was the very high-profile, high-stakes decision of your longest-serving predecessor, Speaker Milliken, concerning documents regarding the Afghanistan conflict following a Liberal opposition motion, which the House adopted in December 2009, requiring the public tabling of 40,000 unredacted pages of sensitively classified records about operations in an active war zone, with zero provision for their safekeeping. Bosc and Gagnon explain, at page 139, the subsequent events:
the Government refused, citing national security concerns. Questions of privilege were raised based on the House’s absolute right to order documents. The Minister of Justice insisted that as the government had a duty to protect information that could jeopardize national security, that right was not without limits. On April 27, 2010, Speaker Milliken ruled that it was within the powers of the House to ask for the documents specified in the House Order, and that it did not transgress the separation of powers between the executive and legislative branches of Government. Thus, the Speaker concluded that the government’s failure to comply with the House Order constituted a prima facie breach of privilege. However, he gave the parties two weeks to develop a mechanism that would accommodate the Government's concerns over national security and the House's right to receive the documents.
As a result, three of the four recognized parties negotiated an agreement in principle to have an ad hoc committee of parliamentarians convened to review the 40,000 pages in question and to vet them for future tabling.
Meanwhile, in 2011, another prima facie case of privilege was found in respect of efforts by the Standing Committee on Finance to obtain documents with financial information. Allow me to summarize for the House the pertinent developments there. In autumn of 2010, the finance committee requested certain financial information from the government and ordered the production of various documents concerning economic projections and costing estimates. The government responded that certain of the documents sought constituted cabinet confidences.
In February 2011, the finance committee agreed to report the foregoing events to the House. That report, the finance committee's tenth report, was presented, and a question of privilege was raised. While awaiting a ruling, the government tabled in the House some documents responsive to the finance committee's requests, and in any event, the House adopted an opposition motion ordering the production of the same documents.
Subsequently, on March 9, 2011, Speaker Milliken ruled on the question of privilege, finding a prima facie case of privilege, whereupon a motion to refer the matter to the Standing Committee on Procedure and House Affairs was adopted. That committee then presented its 27th report on March 21, 2011. While most of the report dealt with the government's invocation of cabinet confidence, something which is an issue in the present case but not a central one, there are still two notable items in the report's summary of the evidence which are relevant to quote.
First, at page 4, Mr. Robert Walsh, House of Commons Law Clerk and Parliamentary Counsel, “indicated that the Speaker had concluded in his ruling that Parliament has the right to receive all the information that it requires, but the government may decide to refuse to provide this information. In that event, the government must convince Parliament that its decision is well-founded.”
Later, at page 9, Mr. Ned Franks, professor emeritus in the Department of Political Studies at Queen's University, “affirmed that he sided with Speaker Milliken and declared that, in his view, the government was not entitled to limit Parliament's power to receive information.”
On March 25, 2011, the House considered and adopted an opposition motion proposed by Michael Ignatieff, which stated, among other things, “That the House agree with the finding of the Standing Committee on Procedure and House Affairs that the government is in contempt of Parliament”.
Where the House subsequently agreed with the 27th report's conclusions, it stands to reason that the House likewise endorsed the analysis leading to it. Most recently, there was the famous 2021 case concerning the Winnipeg lab documents. As most of us will recall, in spring 2021, the then special committee on Canada-China relations adopted two orders for unredacted copies of documents concerning very troubling reports out of Winnipeg's National Microbiology Laboratory.
When those orders were not honoured on June 2, 2021 to compel the production of the same documents, the government persisted in its refusal to comply. That led to a question of privilege on which your immediate predecessor ruled, on June 16, 2021, at page 8548 of the Debates, when he reaffirmed that “at the heart of the parliamentary system, and firmly anchored in our Constitution, there are rights and privileges that are indispensable to the performance of members' duties.”
The House, in turn, on June 17, 2021, adopted a motion to find the Public Health Agency of Canada to be in contempt for its failure to obey an order of the House, and accordingly ordered its president to attend at the bar of the House to be admonished and to hand over the documents. That led to the historic moment on June 21, 2021, when Iain Stewart, the agency's president, stood at the bar to be admonished by the Speaker in the following words:
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- Sep/16/24 12:11:12 p.m.
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The privileges held by the House of Commons are an integral part of the Constitution Act, 1867, and the Parliament of Canada Act. These rights include the right to require the production of documents....
The privileges in question, like all those enjoyed by the House collectively and by members individually, are essential to the performance of their duties. The House has the power, and indeed the duty, to reaffirm them when obstruction or interference impedes its deliberations. As guardian of these rights and privileges, that is precisely what the House has asked me to do today by ordering the Speaker to reprimand you for the Public Health Agency of Canada's contempt in refusing to submit the required documents.
In parallel, the Liberal government, quite shockingly, initiated proceedings in the federal court against the House and its Speaker, seeking to block any further attempts to obtain the documents. Our then Speaker quite fearlessly fought back in court against a government of his own party background, seeking to have the government's court application thrown out. The Prime Minister's selfish and self-interested early election call brought an abrupt end to the federal court proceedings.
In the new Parliament, an ad hoc committee of parliamentarians, similar to that in the 2010 example, was eventually established to look at the Winnipeg lab documents. In February of this year, its work on 600 pages of documents was finally tabled, some 35 months after the standoff in the special committee began. In the end, we discovered that most redactions were not about national security but about protecting the government from embarrassment.
There have also been developments in the United Kingdom Parliament in recent years that some of our colleagues may not be fully familiar with. In the 2017 general election, the incumbent Conservative government did not secure a majority in the House of Commons. The Labour Party subsequently devoted some 10 of its opposition days in the first session of Parliament following that election to ordering the production of documents. Half of the motions were defeated by the House, and of the remaining five, four were responded to in a satisfactory manner by the government.
It is the fifth motion that warrants our attention and was a case that prompted the U.K. House of Commons procedure committee to study the matter and issue its ninth report, entitled “The House’s power to call for papers: procedure and practice”, in May 2019, which I quoted earlier.
On November 13, 2018, the U.K. House of Commons adopted the following motion, proposed by Sir Keir Starmer, who is now the country's Prime Minister:
That an humble Address be presented to Her Majesty, That she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.
Subsequent events can be summarized by the following extracts from paragraphs 41 to 43 of the U.K. Parliament's procedure committee's 2019 report:
Ministers advanced arguments against the motion from the Despatch Box, but did not seek to divide the House. The motion therefore passed unopposed. In points of order raised immediately after the House’s decision, Members sought to clarify the obligations on the Government arising from it: no Ministerial statement was made in response.
An agreement between the United Kingdom and the EU on the UK’s withdrawal from the EU was endorsed by heads of state and government at the European Council meeting of 25 November 2018.... On 3 December the Attorney General presented to Parliament a Command Paper which purported to describe the “overall legal effect” of the agreement of 25 November 2018. On the same day he made a statement to the House...neither the Command Paper nor the statement made reference to the resolution of 13 November, and the Command Paper did not purport to be a return to the resolution of the House.
Following the presentation of the government's command paper to the House, Keir Starmer, together with representatives of four other political parties, wrote to the Speaker alleging that the government had not complied with the terms of the resolution of 13 November. The Attorney General also wrote to the Speaker with his observations on the matter. He argued that the government was in considerable difficulty in knowing how to comply with the resolution.
Speaker Bercow ruled, on December 3, 2018, at column 625 of the official report:
The letter that I received from the members mentioned at the start of this statement asks me to give precedence to a motion relating to privilege in relation to the failure of Ministers to comply with the terms of the resolution of the House of 13 November. I have considered the matter carefully, and I am satisfied that there is an arguable case that a contempt has been committed. I am therefore giving precedence to a motion to be tabled tonight before the House rises and to be taken as first business tomorrow, Tuesday. It will then be entirely for the House to decide on that motion.
The following day, after defeating a government amendment, the House voted to adopt the following motion:
That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.
In response, the government produced a complete, unredacted copy of the Attorney General's legal advice the next day. According to the procedure committee's report, at paragraph 68, “The Attorney General later said that he had complied with the order of the House of 4 December 'out of respect of the House’s constitutional position.'” A government that respects the constitutional position of the House of Commons; let us all just imagine that for a moment.
As I mentioned earlier, the Liberal government is, on the other hand, in my submission, in contempt of Parliament yet again. Bosc and Gagnon comment, at page 81:
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;...or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands....
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- Sep/16/24 12:16:21 p.m.
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On the next page, they articulate the well-established categories of contempt, including:
deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House or a committee;...
without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee; [and]
without reasonable excuse, disobeying a lawful order of the House or a committee....
In the present case, the government has disobeyed a lawful order of this House. It has failed to provide all of the papers that were formally required by this House, and in so responding, many papers were altered or outright suppressed through the redaction process.
On June 10, the House ordered the government to deposit a series of documents concerning SDTC, the Liberal green slush fund, with the law clerk within 30 days. No redactions or other alterations were contemplated by that order, nor was any information permitted to be otherwise withheld, though I would not be surprised if there is a fresh update for us today.
We do know, based on the law clerk's July 17 and August 21 reports to you, Mr. Speaker, which you tabled the same days, that the Department of Finance, Sustainable Development Technology Canada and the Treasury Board Secretariat each provided only partial responses.
Several government institutions redacted the records they deposited with the law clerk, including the Atlantic Canada Opportunities Agency; the Business Development Bank of Canada; the Canada Revenue Agency; the Canadian Northern Economic Development Agency; the Department of Foreign Affairs, Trade and Development; the Department of Housing, Infrastructure and Communities; the Department of National Defence; the Department of Natural Resources; Public Services and Procurement Canada; Western Economic Diversification Canada; Export Development Canada; the Federal Economic Development Agency for Southern Ontario; Pacific Economic Development Canada; the Privy Council Office; the Social Sciences and Humanities Research Council; and the Standards Council of Canada.
I would add that the Department of Natural Resources also decided only to provide the House with records from the director general level and higher. For those not familiar with government hierarchy, a director general is a pretty elite bigwig within the government. They are typically at least four layers above a typical frontline worker. Who knows what pertinent information from the front lines, so to speak, was concealed by this manoeuvre? The House order certainly did not contemplate this approach.
Three other organizations fall into both of these categories, by providing incomplete responses and redacting what they did provide: Innovation, Science and Economic Development; the Department of Justice; and the National Research Council Canada. For its part, the justice department brazenly put the House on notice that some 10,772 pages of relevant documents were “completely withheld”. The Communications Security Establishment, meanwhile, simply wrote that it was refusing to turn over any documents, even redacted ones. Then we have the case of the Public Sector Pension Investment Board, the body that manages a quarter of a trillion dollars of public sector pension assets, which claimed it is not part of the government. I guess it is not just campaign managers who are distancing themselves from the Liberal Prime Minister.
The Auditor General, for her part, also refused to provide documents, referring to her obligations under the Auditor General Act to honour whatever security restrictions the government imposes on its information. Not only has the government refused to comply with the House's order; it has also shackled the Auditor General, an officer of Parliament, from being able to comply as well.
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- Sep/16/24 12:21:33 p.m.
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I want to pause here to recognize the Privacy Commissioner's, our former law clerk's, gold standard approach. He provided a set of records with what he called proposed redactions along with a clean copy of the records, because, as he wrote, “these provisions [of the Access to Information Act] do not limit the House of Commons' constitutional authority to seek and obtain information and documents.” At least he gets it.
Regardless, there is clear and convincing evidence before the House today that a contempt was committed by the government's flagrant and systematic disobedience to the House's June 10 order. While I think it is clear-cut, it is, of course, ultimately a decision for the House to take.
In his March 9, 2011, ruling, Mr. Speaker Milliken cited page 281 of Sir John Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition:
But it must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses.
From there, the Chair added, at page 8841 of the Debates:
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. However, 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.
The U.K. procedure committee, in its May 2019 report, concluded, at paragraph 16, “The way in which the power [to require the production of papers] is exercised is a matter for the House and not subject to the discretion of the Chair.” That committee commented, at paragraph 35, similarly to the views of Mr. Speaker Milliken, on the means of assessing compliance:
There is no recognised procedure to assess the papers provided to the House as a whole in response to a resolution or order, and no means of appeal against non-compliance, short of raising the issue as a matter of privilege.
Where papers have been provided to a body of the House, compliance has been easier to assess. Select committees in receipt of papers have been able to review the information they have received and to determine whether the House's instructions have been complied with.
The U.K. procedure committee concluded, at paragraph 86:
The House alone determines the scope of its power to call for papers. In its consideration of each motion it is able to discern whether an inappropriate or irresponsible use of the power is sought, and whether it is being asked to require the production of information from Ministers on a scale disproportionate to the matter under debate. We expect that in each such case the House will continue to exercise its judgment in favour of a responsible use of the power.
A similar point was also made in the first report of our House's former Standing Committee on Privileges and Elections, tabled on May 29, 1991, and of which the House took note on June 18, 1991:
It is well established that Parliament has the right to order any and all documents to be laid before it which it believes are necessary for its information. ... The power to call for persons, papers and records is absolute, but it is seldom exercised without consideration of the public interest.
In our present case, the House has before it, I would submit, a thorough record upon which to take a decision. The law clerk's reports, with the annexed correspondence from assorted deputy heads, lay before the House both sides of the argument. Personally, I side with the law clerk and his defence of the rights of Parliament. For those who would advocate that we must temper the House's authority with a willingness to accept the government's decisions to withhold information, supposedly in the name of the public interest, I would recall that these balancing acts are represented within the House's own self-restraint and not by any veto exercised by an outside authority.
Mr. Speaker Milliken articulated the concept on April 27, 2010, at page 2043 of the Debates:
It is the view of the Chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would in fact jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts. Furthermore, it risks diminishing the inherent privileges of the House and its members, which have been earned and must be safeguarded.
As has been noted earlier, procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of government documents, even those related to national security.
Therefore, the Chair must conclude that it is perfectly within the existing privileges of the House to order production of the documents in question.
Having established that it is for the House to decide how to exercise its authority in ordering the production of papers, how can we go about such mechanisms to strike the right balance?
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- Sep/16/24 12:27:02 p.m.
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As you recall, in the 2010 case of Afghanistan documents, the House ordered some 40,000 pages of records to be produced in the original and uncensored form forthwith, even though the complete disclosure of them could have prejudiced Canada and her NATO allies' interest in a conflict zone. That prompted Mr. Speaker Milliken to suspend the effect of his ruling to allow a critical gap to be filled.
In 2021, we were dealing with about 600 pages involving professional and counter-espionage investigations while the motion had embedded a series of safeguards, like having the records vetted by the top-secret-cleared law clerk. That gave your predecessor, Mr. Speaker, the comfort to allow a motion to proceed immediately from his ruling. In the present case, the House adopted the motion for the purpose of making these documents available to the Royal Canadian Mounted Police, Canada's national law enforcement agency.
To ensure adequate confidentiality for information that might be sensitive in any potential criminal investigation, the June 10 order established a procedure whereby institutions would directly deposit the records with the Law Clerk and Parliamentary Counsel, who, in turn, would transmit them to the RCMP. The documents were not tabled nor were they meant to be tabled. Instead, the law clerk was directed to prepare a report to the House to be tabled by you. In other words, the documents in question are not open to public inspection. Privacy interests are protected. The documents are, literally, simply being transferred within the federal government from one institution to another institution, the RCMP, through the good offices of our own law clerk.
It is incumbent upon us to act, and act now, in the face of this disregard for the House's authority. To quote page 239 of Parliamentary Privilege in Canada, second edition:
Disobedience to rules or orders represents an affront to the dignity of the House, and accordingly the House could take action, not simply for satisfaction but to ensure that the House of Commons is held in the respect necessary for its authority to be vindicated. Without proper respect, the House of Commons could not function.
I recognize that the government will undoubtedly try to lay the blame at the feet of the public servants who prepared the documents and applied the redactions. However, it is not the public service but the cabinet that is accountable here on the floor of the House of Commons. On September 15, 2021, in preparation for this Parliament, the Privy Council Office provided a briefing note to Paul MacKinnon, then the deputy secretary to the cabinet and a former Chrétien PMO staffer, a former senior staffer for the current Minister of Agriculture and, if I am not mistaken, a brother of the Minister of Labour, to advise that “in the event that parliamentarians press for the release of confidential information, the appropriate minister or ministers should take responsibility for the decision to provide or withhold the information.”
Mr. MacKinnon, in turn, on November 24, 2021, immediately following a question of privilege being raised concerning the Winnipeg lab documents, sent a briefing note to the then government House leader, stating, “Consistent with the principles of responsible government, the ultimate accountability for deciding what information to withhold from or release to parliamentarians resides with the responsible minister. Public servants do not share in ministers' constitutional accountability to the Houses of Parliament but support ministers in this accountability, including by collecting and transmitting documents to Parliament.”
Those are the words of the Prime Minister's own department. We think that it is only fair that the Prime Minister should heed the words of his own officials. The Prime Minister needs to take responsibility for a whole-of-government failure to respect the will of the House of Commons.
That is why the motion I intend to put forward, should you agree that this is a prime facie contempt, would reiterate the House's June 10 order and direct all government institutions that failed to comply with the original order to get their act together and deposit with the law clerk all of the documents we originally ordered, without any redactions this time, and to do so within one week. For good measure, the motion would also express the House's view to urge the Prime Minister, consistent with the spirit of the principles of responsible government, to make his view clear and known to those delinquent government departments that he expects the House's order to be complied with this time.
In the interim, you have an important decision. The House of Commons, Canadians and hundreds of years of constitutional parliamentary government are looking to you to allow us to stand up for the ancient rights of the people's elected representatives.
I know it is customary to reflect and ponder on arguments made on these types of questions of privilege, but this is a very easy decision. We just have to ask ourselves the following questions. Did the House adopt a production order? Yes, it did. That is not a matter of opinion. That is in the Journals and you know that, Mr. Speaker.
Was the order complied with? No. Some provided partial responses. A few withheld documents. Most of them redacted them.
Again, it is not my opinion. It is not a subjective analysis. That is in a report tabled by you, Mr. Speaker, and written by the law clerk on how the government complied with the order.
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- Sep/16/24 12:32:17 p.m.
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The law clerk's reports lay out all of these facts and are there on the table. Mr. Speaker, you could quickly consult with him and make your ruling right now. Thank you.
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