44th Parl. 1st Sess.
September 19, 2024 10:00AM
- Sep/19/24 2:49:02 p.m.
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I will remind members to be careful about making comments about specific members of Parliament.
The hon. Minister of Justice and Attorney General.
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- Sep/19/24 3:40:45 p.m.
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Madam Speaker, we are not talking about ordering the production of documents by the administration of a hospital or curriculum decisions of a school. Both areas are squarely within the provincial jurisdiction, so the Liberal House leader's concerns about jurisdiction simply do not carry water.
Second, on her view that the House may not exercise its power to send for papers that would be, in turn, provided to another body, I would draw the House's attention to the fact that this issue has been judicially considered.
In its 1989 decision, Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), the Supreme Court of Canada considered the matter of a previous auditor general being stonewalled by a previous Trudeau government. The court reconciled subsection 13(1) of the Auditor General Act, which entitles her to free access to government information, with paragraph 7(1)(b), which requires the Auditor General to report to the House, “on whether, in carrying on the work of [her] office, [she] received all the information and explanations [she] required.”
Chief Justice Dickson held, on behalf of a unanimous bench, at page 98, “The section refers to a duty to report of the Auditor General, but can, in my view, simultaneously be characterized as a reporting remedy.”
He went on to state:
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....
While it is irregular to cite court decisions as precedent for procedural debates here, it is worth reflecting on the fact that this country's highest court has clearly contemplated the concept of the House exercising its right to send for papers in aid of a third party holding the government to account. However, it is not just a hypothetical exercise. There is, in fact, at least one practical example which I know the Speaker would be familiar with.
On July 22, 2020, the Standing Committee on Access to Information, Privacy and Ethics, on which the Speaker then sat, voted to compel the production of documents related to Margaret and Sacha Trudeau's speaking contracts and to provide a copy to the Conflict of Interest and Ethics Commissioner. Parliament was, of course, cynically prorogued one day before those documents were to be turned over.
In the new session of Parliament, when the ethics committee debated readopting the production order, the Speaker told the committee, on October 9, 2020, at page 10 of the evidence:
When that decision was made at the time, I told my colleagues around this table that if they wanted to do that, we could do that, but that we would have to take all the necessary steps to ensure that this information would go directly to the Ethics Commissioner, through the clerk.
However, if the Speaker's views on compelling the production of documents to be passed through the hands of the clerks have changed, then I would invite the Chair to consider this aspect of the motion to be an exercise of the House's privilege to publish papers. That privilege traces its origins to the United Kingdom's Parliamentary Papers Act 1840, the preamble to which begins:
Whereas it is essential to the due and effectual Exercise and Discharge of the Functions and Duties of Parliament, and to the Promotion of wise Legislation, that no Obstructions or Impediments should exist to the Publication of such of the Reports, Papers, Votes, or Proceedings of either House of Parliament as such House of Parliament may deem fit or necessary to be published:
While we normally think of a publication as referring to making something known far and wide to the public, that is not the only such meaning. Page 1250 of the Canadian Oxford Dictionary, second edition, defines the verb to publish as, among other things, to “communicate...to a third party.”
Third, another one of the privileges of the House is the right to regulate its internal affairs, sometimes also known as having exclusive cognizance of its proceedings. Paragraph 11.16 of Erskine May, 25th edition, explains:
Both Houses retain the right to be sole judge of the lawfulness of their own proceedings, and to settle—or depart from—their own codes of procedure. This is equally the case where the House in question is dealing with a matter which is finally decided by its sole authority, such as an order or resolution, or where (like a bill) it is the joint concern of both Houses.
This principle has been favourably cited by your predecessors at, for example, page 1940 of the Debates for March 1, 1966; page 2039 of the Debates for April 27, 2010; page 10004 of the Debates for September 17, 2012; and page 18550 of the Debates for June 18, 2013.
The procedure and house affairs committee, for its part, wrote in a report, which the House concurred in on December 2, 2013, “Parliament is the sole judge of the appropriateness of the exercise of any of its privileges.”
On parliamentary privilege, the House of Commons Procedure and Practice, third edition, notes at page 81, “This area of parliamentary law is therefore extremely fluid and most valuable for the Commons to be able to meet novel situations.”
It is, I would submit, no barrier for the House to consider exercising a novel approach to a document production order, nor does disobedience to that order fall outside the ambit of contempt. Indeed, it may be worth recalling that many of the House's powers were not neatly distilled, but evolved over centuries of struggle and fight, which built up the body of precedence.
Fourth, I would argue that the time for challenging the order's admissibility was back in June, when the House considered the Conservative opposition day motion. Bosc and Gagnon note, at page 565 of House of Commons Procedure and Practice, third edition:
Before reading a motion to the House, it is the Speaker’s duty to ensure that it is procedurally in order. This is done by verifying that the notice requirement, if any, has been met, that the wording of the motion corresponds to that of the notice, and that the motion contains no objectionable or irregular wording. Any part of a motion found out of order will render the whole motion out of order. If the Chair finds the form of the motion to be irregular, he or she has the authority to modify it in order to ensure that it conforms to the usage of the House....
If the motion is found to be in order, and has been moved and seconded, the Speaker proposes it to the House.
When the House considered the Conservative opposition motion on June 6, this is exactly what happened. Indeed, the Liberals put forward no challenge at all to the motion's admissibility. The opposition motion was placed on notice 48 hours ahead of debate, as required by the Standing Orders, debated for a full sitting day, and then a vote was deferred to the fourth calendar day following the debate. The motion was placed on the Notice Paper on a Tuesday afternoon. It was voted on the following Monday afternoon. At no point in between did anyone object to the motion's admissibility. Only now are we hearing someone make any argument to that effect. This reminds me of a situation with which I have some personal familiarity.
On March 27, 2014, the House adopted an order requiring Tom Mulcair, the then leader of the New Democratic Party, to appear before the Standing Committee on Procedure and House Affairs, which he did on May 15 of that year. The following day, the NDP House leader rose on a point of order to argue that the motion and resulting order were inadmissible. The Chair ruled on June 12, 2014, at page 6719 of the Debates:
I would have been inclined to rule the motion out of order had this matter been raised within a reasonable delay. To be clear, the Chair did not readily deem the motion to be procedurally admissible, as the [NDP] House leader suggested. Instead, in the absence of any objection at the time that the motion was moved, the matter went forward and the motion was adopted.
To argue inadmissibility more than 14 weeks after the House adopted the order, as the Liberal House leader now attempts, simply cannot be allowed. Of course, I would argue that the ruling that the motion was admissible would be the same today as it would have been on June 6.
Fifth, as to whether redactions were authorized, I would recall the law clerk and parliamentary counsel's own words, on page 2 of his July 17 report to you on compliance with the order: “I also note that the order did not contemplate that redactions be made to documents or that information be withheld.”
The Maingot passage which the government House Leader cited reads, crucially, “The only limitations, which could only be self-imposed”. No limitation in the House's June 10 order to allow for redactions was self-imposed. As I mentioned in my original arguments, it is always for the House itself to determine the scope of its document production orders and to judge the government's reasons for refusing to provide information. It does that through the course of debate, amendment and voting. Regardless, should you disagree with me on this point about redactions, it still does not excuse those government institutions which have failed to provide all the required documents by the deadline imposed in the House's order.
Sixth, with respect to the government House leader's concern about the charter rights of anyone who might have defrauded the government or otherwise participated in government corruption, I would recall for you her own acknowledgement that the Chair does not decide questions of law. In any event, it is also important to recall that the law of parliamentary privilege is a body of constitutional law on equal footing with the Charter. As for a policy-based argument about charter concerns, that is one which I would submit would be more properly made in the course of debate on the June 6 opposition motion or, should you find a prima facie contempt, on the subsequent privilege motion the House would debate.
These views certainly were not advanced during the June 6 debate. During that debate, Liberals were much more focused on speaking about a machinery of government announcement about the Liberals coming up with a new way to deliver its green slush fund. My counterpart suggested that perhaps a procedure and House affairs committee study might be appropriate. To that, allow me to quote from paragraphs 84 and 86 of the 2019 report of the U.K. House of Commons procedure committee on document production, which I cited in my original arguments.
It states:
Ministers are responsible for putting before the House their arguments against the disclosure of information which they believe requires protection. If they then cannot persuade the House to endorse those arguments by the process of decision and vote—or do not attempt to do so—they must determine how far they should comply with the resulting resolution or order of the House. It is not for the House to put in place procedures and practices which shield Ministers from the exercise of this responsibility....
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.
Seventh, as for the Liberal House leader's concerns about it appearing as if the House is directing law enforcement, I would recall the comments of the Bloc Québécois House leader, who said it is up to the RCMP to decide what to do with the documents. The House order solely required the law clerk and parliamentary counsel to transmit the documents. It has not obliged the RCMP to open the envelope or insert the USB key into a computer.
In any event, I would take note of paragraph 11.29 of Erskine May, 25th edition, which states:
In cases of breach of privilege which are also offences at law, where the punishment which the Commons has power to inflict would not be adequate to the offence, or where for any other cause the House has thought a proceeding at law necessary, either as a substitute for, or in addition to, its own proceedings, the Attorney General has been directed to prosecute the offender.
Lee expands upon this issue at pages 211 to 213 of his book for those who are interested in reading more.
Students of the U.K. Parliament will recall that its House of Commons used to have, until recently, an annual practice of adopting, on the opening day of each session, a sessional order directed to the commissioner of the Metropolitan Police to keep streets leading to the Palace of Westminster free and open. I am not suggesting that we direct the police or prosecution here, but it is a point that is important in understanding the authority of the House of Commons.
Finally, as for the Liberal House leader's argument that the only appropriate motion would be to refer the matter to the procedure and House affairs committee, I disagree. When her deputy tried to advance the same argument in respect of the proposed motion to address the question of privilege concerning the ArriveCAN contractor Kristian Firth's refusal to answer committee questions, the Speaker ruled, on March 22, 2024, at page 21946 of the Debates, the following, “I am of the view that it is procedurally in order. As with the case cited from June 2021, the motion provides for...a specific remedy to the offence.”
My motion would do just that, provide a remedy to reorder the production of the documents. Bosc and Gagnon describe, at pages 986 and 987, the options available to a committee that is meeting resistance to its document production order: to accept the refusal, to seek a compromise or to insist on its position by upholding its original order. My proposed motion, effectively, is that third option. I would submit that, for this purpose, there is no distinction between the House or one of its committees.
In any event, Bosc and Gagnon discuss, at pages 138 and 987, the scenario where a committee report to the House on a case of disobedience to a document production order, which I note would be a contempt, may be addressed by the House adopting its own order for the production of documents. Indeed, the 2021 case mentioned saw the House order the president of the Public Health Agency of Canada attend the bar of the House for, among other things, the purpose of turning over the documents which had not been provided. That was, in turn, modelled on precedent cases, which Bosc and Gagnon describe at pages 131 and 132.
In conclusion, the arguments of the government House leader simply do not add up. The government failed to respect the validly expressed and lawful will of the House of Commons. That is a contempt of Parliament. If the Speaker agrees, Conservatives will give the Liberal Prime Minister one more chance to respect Parliament and turn over the green slush fund documents within one week.
Simply put, all the arguments that the government House leader made would more properly be not for the Chair's consideration but for members' consideration during debate on the privilege motion itself. The Chair is not supposed to accept new restrictions on the power of the House's authority to send for papers. That is something that only the House can do itself.
The Speaker's role in this case is to simply judge, almost as though it were a simple mathematical formula. A production order was tabled, debated and voted on. It passed. That checks that box. Was the production order respected? No. There is only one conclusion. If the production order is not respected, the Speaker must put that issue to the House, and then the House can decide what the most appropriate remedy is.
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