44th Parl. 1st Sess.
September 18, 2024 02:00PM
- Sep/18/24 3:58:39 p.m.
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Mr. Speaker, I am also rising to respond to the question of privilege raised on September 16 by the member for Regina—Qu'Appelle, respecting the motion adopted by the House on June 10. I would like to start by stating that this does not constitute a prima facie question of privilege, as the House has overstepped its authority in this instance.
The motion, as adopted by the House, does not order that the documents be provided to members of Parliament. It simply states that they be provided through the Law Clerk and Parliamentary Counsel to a third party. While the House has the right to order the production of documents for its own use, it does not have the right to do so for the exclusive use of a third party. This point is made clear in the report of the Standing Committee on Privileges and Elections from 1991, which states, “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 key words here are “laid before it” and “necessary for its information”. For this reason alone, the Chair should not find that this constitutes a prima facie question of privilege.
Having said that, I want to take this opportunity to provide the government's perspective on this motion. The government has grave concerns about potential charter violations that may result from turning over some of the information of the government, SDTC and the Auditor General to the RCMP, as outlined in the motion. The motion, as adopted, appears to be unprecedented and creates a troubling model that would enable the House of Commons to exempt law enforcement from the requirement to seek judicial permission to obtain a broad production of information free from charter constraints.
As members will know well, section 8 of the charter protects persons against unreasonable government interference with their reasonable expectations of privacy. Government action that interferes with this expectation must be authorized by a law that satisfies section 8's reasonableness standard. Ordinarily, proceedings in Parliament, including responses to motions adopted by the House of Commons, would be protected by parliamentary privilege and would not be admissible in other proceedings. As I have indicated, in the circumstances, the House of Commons has not even asked for the documents to be provided to members of Parliament in the course of their work; rather, it has expressly referred the information to the RCMP. This goes beyond the authority of the House to order the production of documents.
Even if one were to accept that the motion is within the authority of the House, which the government does not, the motion does not displace the legal obligations that would potentially inform the lawfulness of the RCMP's access to and use of materials received from the Law Clerk and Parliamentary Counsel, including those under the charter.
Should the RCMP wish to engage with the materials received, it will follow its own process and protocols to determine whether and how these materials may be used in a lawful way. As members well know, the RCMP requires lawful authority to invade privacy for the purpose of furthering any criminal investigation. In requiring that the information be turned over to the RCMP, the House of Commons appears to have appropriated the role of the judiciary in authorizing RCMP access to information, presumably to further a criminal investigation, but without replicating or observing any of the constitutional safeguards that normally constrain the police in such activities. This highly unusual approach may invite judicial scrutiny of both the use of any of the information by the RCMP and the legal underpinnings of how the information came to be in the RCMP's possession. It is not just the government that has this view; the RCMP itself has expressed this to the Law Clerk and Parliamentary Counsel.
In a July 25, 2024, letter from RCMP commissioner Mike Duheme to the law clerk and parliamentary counsel, he stated:
I am writing to you regarding the Opposition Motion that was passed in the House on June 10, 2024, which requires the production of documents from the government, the Auditor General, and Sustainable Development Technology Canada (SDTC) to the Law Clerk and Parliamentary Counsel with the intention of providing these documents to the Royal Canadian Mounted Police (RCMP).
Subsequent to the motion, the RCMP undertook a review and examination of the Office of the Auditor General (OAG) tabled report on SDTC, along with additional administrative reports by Innovation, Science and Economic Development Canada and publicly available information. The RCMP has concluded that the available reports do not identify any criminal offences or evidence of criminal wrongdoing at this time, whether in relation to any specific individual or organization.
The OAG and the RCMP are governed by well-established processes that consider their respective mandates. These processes ensure compliance with applicable legal standards in order to preserve the viability of any potential criminal investigation and prosecution. The OAG has broad powers to compel information in a manner that is not possible in a criminal investigation. There are therefore safeguards in place to ensure information obtained by the OAG is not used to circumvent the legal obligations required for criminal investigations. If the OAG finds evidence of criminality during an audit, they have the authority to advise the RCMP. To date, the RCMP has not received any referral from the Auditor General or her office in relation to the SDTC matter.
The RCMP has also reviewed the implications of the Motion in a potential criminal investigation. Before taking any investigative steps to access documents that may give rise to a reasonable expectation of privacy, the RCMP must comply with applicable legal standards to preserve the viability of any potential criminal investigation or prosecution. The Parliamentary production order does not set aside these legal requirements. For the reasons set out above, the RCMP's ability to receive and use information obtained through this production order and under the compulsory powers afforded by the Auditor General Act in the course of a criminal investigation could give rise to concerns under the Canadian Charter of Rights and Freedoms. It is therefore highly unlikely that any information obtained by the RCMP under the Motion where privacy interests exists could be used to support a criminal prosecution or further a criminal investigation.
Given the risks associated with receiving information under the Motion or other compulsory authorities, practices need to be put in place to identify the nature and the source of information, with a view to determining whether it contains Charter-protected information. Any information obtained through the Motion or other compulsory authorities would need to be segregated from an RCMP investigation. There is significant risk that the motion could be interpreted as a circumvention of normal investigative processes and Charter protections.
The RCMP will continue its review of available information that does not give rise to concerns under the Charter to determine if sufficient evidence exists to launch a criminal investigation. I would like to emphasize as well that the RCMP is operationally independent and strictly adheres to the principle of police independence. In a free and democratic society, this ensures that the government cannot direct or influence the actions of law enforcement and that law enforcement decisions remain based on the information and evidence available to police.
Yours sincerely,
Mike Duheme
Commissioner
This letter speaks for itself. Personally, I do not want to live in a country where politicians can use their power to trample on the privacy rights of Canadians and bypass the legal protections of the Charter of Rights and Freedoms to provide information to law enforcement without any due process or judicial oversight.
Given the concerns expressed above, the government must take every care to ensure we are adequately protecting sensitive information that would be inappropriate to disclose, which prompts the necessity to review all records carefully and with restraint, redact information and then provide, in a staggered manner, that immense volume of material to the law clerk and parliamentary counsel.
I would like to raise the issue of the interpretation of the motion adopted on June 10, 2024. The motion states, in part:
That the House order the government, Sustainable Development Technology Canada (SDTC) and the Auditor General of Canada each to deposit with the Law Clerk and Parliamentary Counsel, within 30 days of the adoption of this order, the following documents, created or dated since January 1, 2017, which are in its or her possession, custody or control....
The motion as adopted is silent on whether the documents requested should or should not be redacted. The practice in this place for document motions is that, if they are to be provided unredacted, this is stated in the motion. In this instance, this was not included in the motion.
As members well know, the government, through its officials, is bound by certain statutes to protect certain information from disclosure. In fact, in the past when the House has insisted that documents be produced in unredacted form, governments of both stripes have worked constructively with other parties to establish appropriate mechanisms to protect the disclosure of information that would otherwise not have been disclosed due to their protections offered by statute. While the motion is unusual in that it does not require that the documents be produced to the House itself, rather to the RCMP through the law clerk and parliamentary counsel, the government interpreted that these documents could be redacted to abide by statutory protections.
This is especially the case in this instance, and the government could not in good conscience interpret the meaning of this motion such that it would trample on the Charter rights of Canadians and exempt law enforcement from judicial oversight. This would be an extremely reckless and dangerous interpretation for the government to take, so while the government believes that the motion exceeds the authority of the House, it did try to comply in good faith in a way that respects the Charter of Rights and Freedoms.
Furthermore, as I have stated, the order did not explicitly state that documents could not be redacted, and second, since these documents were being transmitted to the RCMP, the police force, should it wish to investigate this matter, could use its investigative powers to compel any information that had been redacted if it deemed it material to any potential investigation.
Furthermore, the Auditor General of Canada, who is an independent officer of Parliament, appointed by Parliament, raised her own concerns about the production of documents in the motion adopted by the House. In her response to the request from the law clerk and parliamentary counsel, the Auditor General stated:
I share the view that Commissioner Duheme expressed to the House of Commons Standing Committee on Public Accounts (PACP) on June 18, 2024—the OAG has a strong working relationship with the RCMP that is grounded in a well-established process to access information in our audit files. This is important because of the rights established in the Canadian Charter of Rights and Freedoms that apply to criminal proceedings, and because the courts play an important role in ensuring that information obtained by law enforcement respects those rights. In the past, the RCMP has obtained production orders to ensure that information from the OAG has been obtained legally and can be used when a criminal prosecution is launched.
This is precisely the approach that is being taken by the government. If the government is of the view that activities may be of a criminal nature, the government has ensured and will always ensure that any information that may be material to criminal investigation is forwarded to the RCMP. That is how our system works. There are separate branches of government for very good reason.
The Auditor General states this clearly with respect to its relationship with law enforcement:
Where the OAG is of the view that activities may be of a criminal nature, we promptly inform the RCMP. As we did not reach this conclusion in our audit of SDTC, we did not engage with the RCMP about our audit findings before my report was presented to Parliament. Based on recent communications with the RCMP about this order, we confirmed that the RCMP would seek a production order before requesting any documents should they deem them necessary to any investigation. This would be consistent with well-established past practice.
While the government understands that the Speaker does not rule on questions of law or on the appropriate functions of other branches of government, it is for the House to pronounce itself with restraint in such matters. Many members of the House have legal training and know the divisions of power between the executive, legislative and judicial branches of government. This is the bedrock upon which our democracy operates. To blur these boundaries is irresponsible and, quite frankly, reckless.
We are in uncharted territory with this matter. I have made the case that the House has exceeded its authority in ordering the production of documents, not for its own use or the use of members of Parliament, but rather exclusive to and for the use of a third party. I hope the Speaker will consider this point very carefully.
Should the Speaker agree that the proposition before the House does in fact exceed the authority of the House, I submit that the Standing Committee on Procedure and House Affairs should undertake a study to determine the appropriateness of motions that order the production of documents that are not for the express purpose of informing the House and its members, but rather of being used as an instrument to refer documents to organizations that are outside the jurisdiction of the legislative branch of government.
Procedural authorities clearly suggest the privileges of members and of the House relate to its own proceedings within the ambit of the legislative branch and cannot exceed the powers and jurisdiction of this branch of government. This principle is clearly articulated on page 190 of the second edition of Maingot's Parliamentary Privilege in Canada, which states:
The only limitations, which could only be self-imposed, would be that any inquiry should relate to a subject within the legislative competence of Parliament, particularly where witnesses and documents are required and the penal jurisdiction of Parliament is contemplated. This dovetails with the right of each House of Parliament to summon and compel the attendance of all persons within the limits of their jurisdictions.
However, even if the motion were to be considered within the authority of the House, which I submit it is not, the appropriate course of action in the handling of this matter, if you find a prima facie question of privilege, would be to limit the motion proposed by the member for Regina—Qu'Appelle to refer this unusual matter to the procedure and House affairs committee for study. This would provide an opportunity for members of that committee, who are well versed in parliamentary privilege, to call witnesses and experts who may help shed light on this matter and report back to the House with its findings.
This is entirely consistent with the approach that Speaker Milliken took in his decision on the Afghan detainee documents on April 27, 2010, where he provided the parties some time to discuss the issue and find a resolution. Sending the matter to the procedure and House affairs committee would do just that.
Finally, I would like to table, in both official languages, the two letters I cited in my intervention: the letter from the RCMP commissioner to the law clerk and parliamentary counsel, as well as the letter from the Auditor General to the Clerk of the House of Commons.
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