Information & Ethics Committee on May 31st, 2007

[The Chair, Liberal, Tom Wappel]

Good morning. I call the meeting to order.

Welcome to our fiftieth meeting.

Today we have with us, from the Office of the Information Commissioner of Canada, the Information Commissioner of Canada, Robert Marleau, and Daniel Brunet, director of legal services. From the House of Commons, we have Rob Walsh, law clerk and parliamentary counsel.

Colleagues, I understand that the commissioner does not have an opening statement, so I'll set the context for him.

Some of the members of the committee were of the view that it might be helpful in our investigation of the document entitled “Afghanistan 2006: Good Governance, Democratic Development and Human Rights” if we had an opportunity to talk to the commissioner, to ask questions of the commissioner about some of the things that are troubling some of the members, and to perhaps get the commissioner's advice.

We're mindful of the evidence that was given the last time you were here, with respect to the specifics of any particular case. For those who might have forgotten, the commissioner will of course remind us. But there may be other questions the committee members may have of the commissioner.

Commissioner, that's why you're here. If there are indeed no questions, and we'll soon find out, then we'll say thank you for coming. But there were members of the committee who expressed an interest in having you here.

Mr. Walsh, of course, is our legal counsel. We've asked him to be here for a number of reasons, including the fact that he gave some advice to the subcommittee in camera and not all of the members were at that meeting. We thought it would be useful for members to be able to ask Mr. Walsh some questions.

I hope and believe Mr. Walsh has an opening statement of some kind. Is that correct, Mr. Walsh?

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

If I have an opening statement, it would be an impromptu one.

I received an e-mail from the committee clerk yesterday at noon on the matters I'm to address, and I did not have time to prepare a formal statement for the committee. I'm quite happy to leave that aside, if you want to proceed with the Information Commissioner, and later I'll answer questions the committee members may have.

[The Chair, Liberal, Tom Wappel]

I think it's important that you perhaps set the scene for us in terms of the rights and responsibilities of this committee and some of the legalities that are involved. You could go through what you were given a heads-up on, if I can put it that way, and give an impromptu series of remarks that might possibly trigger some questions from committee members.

[Rob Walsh]

Thank you, Mr. Chairman.

Let me first tell you what I have been given. I've been given five points, only one of which perhaps relates to what I discussed with the steering committee. Was it a few days ago or last week? I can't remember.

[The Chair, Liberal, Tom Wappel]

Time flies. It was three weeks ago.

[Rob Walsh]

Time flies, yes.

Again, I'm reading from the e-mail received from the committee clerk. There are five items. The first one is with regard to the powers of committees in calling for persons and papers. I believe that's the topic that is primarily of interest this morning. The second item is the obligation of witnesses appearing before committees; third is the legal status of evidence taken by committees; fourth is the history of swearing in of witnesses under oath; and last is a possible response to a letter that I have received from a member of this committee.

Certainly in respect of the first item, I can reiterate what I said a few days ago. Basically there are no prohibitive limitations on committees seeking documents or calling upon persons to appear. There are, however, some practical limitations that arise from time to time, as you can read from the very learned text of Marleau and Montpetit, available to all members. There is some discussion there, I think on page 860 and following, about the witnesses at committee. You'll also find in that text a discussion of papers.

Basically you can command the production of any papers. The problem--and this is what I stress with the committee, as I think it's the case here in particular--is that a given document in the possession of the government that a committee is seeking to obtain may be subject to access to information restrictions. That is to say, the government may exercise its rights under that act and preclude the disclosure of the document or parts of the document, and indeed insist on that vis-à-vis this committee or any committee; this is not the first time this has arisen. And I make no comment about what proceedings may or may not be going on in the Office of the Information Commissioner. I'm just speaking generally here.

Regrettably, while the committee is entitled, in my view, to receive the document in its unexpurgated form--or, as they say now, its “unredacted” form, which I don't quite understand--the fact remains that the government, not the government of the day in relation to this particular document but the government or officials generally speaking, feel that they can't provide the document because they would be contravening the act and their obligation.

So what do you do? Well, you can just simply bang the table more loudly and insist on the document coming to you, in which case the government will bang the table more loudly and say no, we can't give it to you because of the act. You would get to a bit of a standoff.

Yes, the committee could call upon the minister, perhaps, to come before the committee to explain why the document is not being provided. That may not be satisfactory, and the committee might then make a report to the House citing this as being a breach of its privileges and make a recommendation to the House as to what the House should do. The House may or may not take the steps that the committee recommends. But meanwhile, the document is not before the committee while you're going through that process.

In principle, you're entitled to what you ask for. In practice, however, in the face of a statute that applies to the government but doesn't apply to the House, or doesn't override its constitutional privileges, you nonetheless have this dilemma where the official feels constrained by the law in the act and the committee wants the official to disregard that.

The simple solution, Mr. Chairman, is to amend the act. But I'm sure there would be ways of getting around that amendment, even if there were one, in various circumstances.

That's what I said to the steering committee, Mr. Chairman, if I'm not mistaken. You were there. I don't know if there's anything I can usefully add to that at this time.

[The Chair, Liberal, Tom Wappel]

Okay.

Can you carry on with the other points, then?

[Rob Walsh]

Okay.

The obligations of witnesses appearing before committees...well, clearly the obligation is to be truthful, and to suggest that's not the case is to suggest that witnesses can appear in front of committees and say what they like, whether or not it's true. But clearly the witnesses are obliged to be truthful before the committee, and to be fully truthful: not to, in my view, limit their answers to some narrow interpretation of the question but to answer fully the matters of interest to the committee as reflected in the questions put to them and to be available to the committee as the committee may require from time to time in further clarification of their testimony.

The reverse side of this coin is what the situation would be were there to be an appearance of untruthfulness on the part of a witness. There are basically two avenues. One is the committee comes to a conclusion that the witness was untruthful and reports this fact to the House and makes a recommendation to the House, perhaps that some steps be taken against that witness for this false testimony.

The other avenue.... I don't know if this is the occasion to go into this, but ostensibly there's an alternative of prosecution for perjury under the Criminal Code. I don't want to take up the time of this committee unnecessarily, but I am troubled by the consequences of a decision handed down the day before yesterday by the Federal Court in an action brought by Deputy Commissioner Barbara George, for a number of orders.

In respect of the request that the court discontinue the police investigation of a possible perjury charge on her part, the court denied that it had jurisdiction, with the result—and what is troubling to me—that this may be taken by the RCMP that they continue to have the prerogative of choosing to investigate whether given testimony of a witness was or was not truthful with reference to a possible charge of perjury.

Now, on their side, if you like, is the fact that section 131 of the Criminal Code expressly refers to testimony given to a committee of the House or the Senate. But what's not on their side, in my view, is that the putting of that into the Criminal Code doesn't override the constitutional privileges of the House and its committees. In my view, in a nutshell, I don't believe the police have the right to initiate an investigation for perjury without the consent or instruction or request from the committee to whom the false testimony was given and perhaps subsequent confirmation by the House itself.

What's troubling to me especially in that context, Mr. Chairman, and it relates indirectly to the subject of the letter from a member of this committee, is that you have there an investigation being carried on by the RCMP with respect to one of its members, a senior member of the force, in respect of testimony given to a committee in the matter of an inquiry into the RCMP itself. It troubles me for two reasons. One, the parliamentary privileges of the House are not being respected here by the RCMP, with the result that this witness and other witnesses observing this may be intimidated and unwilling to testify before that committee, including that particular witness who may next show up before the committee and refuse to answer questions because of this continuing investigation. What troubles me as well, of course, is that in my view a police investigation is in the nature of a legal proceeding. It's the exercise of legal powers for the purposes of determining whether a criminal offence has occurred, and it could result in a charge being laid.

It strikes me—from what I'm seeing from a distance, admittedly—that this is akin to a self-serving use of one's legal powers for the purposes of dealing with a situation that's problematic to the institution itself. I say that not with any comment on the veracity of the testimony in question. I have no idea whether the testimony in question was or was not truthful, but it seems to be entirely inappropriate—and I'm saying this to you as my client and through you to the other committees who may have witnesses before them and whose testimony may on occasion seem doubtful—that the police can launch an investigation for perjury of their own choosing. That's a serious compromise, in my view, of the integrity of the parliamentary proceeding itself. And I think the committee ought to be concerned about that, on behalf of its own proceedings as well as on behalf of the witnesses who appear before it.

Now, the court in the George case said it simply didn't have jurisdiction. I don't quarrel with that conclusion, but it nonetheless concerns me that this is going on and will continue to go on in the circumstances. This relates to the matter raised by one of your members in his letter, and I'll jump to that right now. It relates to the Security of Information Act and the possible application of that act to members of this committee with respect to documents coming into their possession. Here, too, an investigation could be launched, because we're talking about an offence. So an investigation could be launched, ostensibly for the purpose or having the effect of intimidating members of this committee engaging in their parliamentary business.

That is profoundly problematic, in my view. I say that to you, Mr. Chairman, as legal adviser to this committee and to members of other committees. You have to defend the integrity of your proceedings against any other interference.

The Security of Information Act contains a prohibition against persons hanging onto documents that fall within the ambit of that act. If they come into possession of those documents by happenstance, they're obliged to return them. If they fail to return them, or if they make use of them, they could be subject to prosecution under that act.

I don't propose to make any comment on the particular situation that may apply to individual members of this committee or any other committee with regard to documents that may have come into their possession. But it is the case, in my view, that those provisions are there and could put the position of some members in jeopardy, by virtue of those members being in possession of documents covered by that act.

I'll return to that—

[The Chair, Liberal, Tom Wappel]

I guess, in that instance, the question is whether a particular document is covered by the provisions of that act. If it is, then it's one thing. If it isn't, then it's irrelevant—for that purpose anyway.

[Rob Walsh]

That's correct, Mr. Chairman.

But there are a number of other legal issues that could arise, and that's why I hesitate to comment specifically on the circumstances here, because there could be circumstances of an exonerating nature that apply and could be overlooked in any comment I might make about the possible application of this act, or the committing of an offence by any member of this committee under that act. So, in fairness to those individuals, I'm just not going to go there, if you don't mind, Mr. Chairman. They are entitled to their own private legal advice as to what their position might be, and they may want to do that. But there are other aspects of this letter I can return to later, perhaps, if these are of interest to members of the committee.

The legal status of evidence taken is that of protected testimony. This was affirmed by the Federal Court yesterday—but only in respect of the internal disciplinary proceedings the RCMP is undertaking with regard to the applicant, Deputy Commissioner Barbara George.

The reason the court had jurisdiction there is that it's covered by statute. The Federal Court is a creature of statute. It derives its authority—its jurisdiction—by virtue of statutory provisions giving it jurisdiction. If it doesn't have its jurisdiction found in a statute it doesn't have what we lawyers call original jurisdiction, as the superior courts in the provinces would have.

The result is that the court found it had jurisdiction with respect to the proceedings pertaining to internal discipline, because those are carried out under the regulations of the RCMP Act, but it did not have jurisdiction with regard to the criminal investigation, because those proceedings are not carried out under any statute as such. They're carried out under the general common law power of police to investigate allegations of criminal offences.

The Federal Court affirmed that the testimony of the witness to this committee was not available for purposes of that internal disciplinary investigation. The court did not order the investigation. It couldn't go ahead; it can't use testimony to this committee. To the extent it relies on testimony to this committee—which seems, frankly, to be central to that proceeding—the proceeding cannot go forward.

The history of swearing in of witnesses—

[The Chair, Liberal, Tom Wappel]

Just to be clear, then, the evidence given before a committee is protected, in the sense that it cannot be used against the person who gave the evidence in outside proceedings. Is that correct?

[Rob Walsh]

More broadly, article 9 of the Bill of Rights Act of 1689, which has been affirmed as part of the constitutional law of Canada and applied by the Federal Court earlier to this George decision—but not mentioned in the George decision, perhaps because it wasn't necessary—makes it clear that no court or other place can question the proceedings of the House.

In a sense, you might more properly say that the jurisdiction of courts and other proceedings is limited; they can't look at what happens before committees, or in the House. Those proceedings are protected from any review, examination, or questioning by any outside body, process, or authority. Okay. That's essentially what that's saying. You can call it a privilege if you like, but strictly speaking it's a limitation on the jurisdiction or authority of those outside bodies.

The bottom line is that what you say to this committee stays with this committee, as it were, in terms of any other legal proceedings.

[The Chair, Liberal, Tom Wappel]

I'll just put out an example, Mr. Walsh. If someone confessed in a committee that they had committed a specific armed robbery on a specific date, and there was no other evidence whatsoever to link that person with that crime, other than the admission before this committee, that person could not be convicted via court using that evidence, because they couldn't use that evidence. Is that correct?

[Rob Walsh]

That's my view, although extreme hypotheticals are always problematic. That would be my view, yes.

[The Chair, Liberal, Tom Wappel]

All right, thank you. Because if that's the view in the extreme, then in the less extreme it's even stronger.

[Rob Walsh]

Indeed, I would argue it goes one step further. Not only is the testimony itself not available, but evidence generated in reliance on that testimony is not available either. More than that, evidence generated elsewhere, which is not appreciated for its significance without reliance on that testimony, is itself unavailable. But these are all points or evidentiary arguments one would make in court on the occasion of being presented with testimony before a committee, and the courts would draw their conclusion.

I'm reminded, of course, that there's always the possibility that the House could waive its privileges in this regard and allow its proceedings to be used, typically for a prosecution for perjury.

[The Chair, Liberal, Tom Wappel]

That's a good point. But it would be the House's privilege to waive.

[Rob Walsh]

The committee could make its own decision to waive and then report that to the House, and if the House concurred.... Obviously this has larger implications than for just one committee. So the committee could do it, and the outside authority might rely on that, but there might be an argument to be made that it's not sufficient and that it requires the House to confirm the committee's decision. These are not questions that have been, to my knowledge, addressed in any courts of law and from which I can say there's a judicial determination. But that would be my own view of the situation on the basis of principle.

[The Chair, Liberal, Tom Wappel]

I interrupted you, sorry. You were at point number four.

[Rob Walsh]

Just on the last point here, Mr. Chairman, the history of swearing-in of witnesses under oath, the committees branch gave me a brief memo. It would appear that the history largely has been a debate about whether a committee needs the permission of the House to administer an oath or can do it without that permission. Much of that history is sort of passé, because it is the case, and I think it is generally recognized—I think Marleau and Montpetit's text affirms this—that if a committee wants to administer an oath or affirmation to a witness, it may do so. I'm troubled by that, and let me explain that practice.

The first time I remember it arising--whether or not it was happening with any frequency--was before the government operations committee, which at the time was looking into the Office of the Privacy Commissioner, and at which the veracity of some testimony was very much in question. There was talk about whether there might be a charge of perjury laid against some witnesses. So then the view developed that if you're going to lay a criminal charge of perjury, you have to have, on record, the administration of an oath, so that it's quite clear that the individual was well aware that they were legally obliged to tell the truth. Subsequently, this practice would creep up in the later proceedings of the public accounts committee pertaining to the sponsorship program, and on other occasions: if there is a sense that we may be dealing with some doubtful testimony here, if we want to prosecute for perjury later, we should get them to swear an oath.

In my view, I don't think the option of going for a prosecution for perjury is a very realistic one. However much one might want to bang the drums loudly about it, I don't think it's frankly a very realistic one, first of all because it's very difficult to successfully prosecute for perjury. It's not as easy as a bank robbery might be. It's very hard to know what the truth is in a given situation, and whether the individual knew that what he or she was saying was not the truth, and whether he or she intended to convey that untruth. These are hard things to establish legally in a criminal court. So I don't think it's a very fruitful avenue for the committees to look at, and I've said this to committees before.

What's more fruitful, perhaps, and more appropriate is for committees to defend themselves against false testimony and for committees to call upon witnesses to explain their testimony, and for committees, acting perhaps as judge and jury, to form a conclusion as to whether they were or were not misled or lied to by a witness, and to make a recommendation to the House that action be taken and so on, and to go that route, for which you don't need an oath, in my view. Now, if the House turned around and made the rule that yes, you do need an oath, if you're ever going to go to them with a complaint of being lied to, well then okay, you're going to have to. But I doubt that the House would make such a rule.

I don't look fondly on the idea of using oaths, frankly, but the practice has emerged, in my view, for that reason from time to time. One could argue that it could be an affront to the witness sometimes, who is here perhaps not in a challenging situation, to talk about some public program or policy program or whatever, and all of a sudden is confronted with an oath as if they're being told that they can't be trusted to tell the truth so we have to require them to swear an oath. The optics might be problematic as well and set things off to a bad start between a committee and a witness.

That, I think, in short—not in short, in too long, perhaps—responds to your points.

[The Chair, Liberal, Tom Wappel]

The points you've raised are important. I think they're helpful to the committee.

In your opening remarks, do you want to specifically address any particular aspect of Mr. Reid's letter to you, other than what you've already said?

[Rob Walsh]

Again, Mr. Reid posed four questions in his letter. It's a very comprehensive treatment of the subject and, as one might expect, Mr. Reid is very skilled in such matters.

The first question is basically to ask what steps members of the committee might take to discharge their obligations under the relevant provisions of the act. Basically, the short answer to that, which might seem self-serving, is go to see a lawyer and get some legal advice, but you should probably return the document.

You know you have a document. You should know the circumstances. You may have reason to believe you don't have lawful entitlement to the document and you're not meant have it. It's governed by this act. I'd assume you'd have time to read the act and get some legal advice. But at the first opportunity, once you're satisfied that is the case or could be the case, you'd be wise to return the document to its apparent owner.

[Jim Peterson, Liberal, Willowdale, ON]

That would be after you've made a copy.

[Rob Walsh]

Mr. Chairman, the problem is that if you hang on to the document for any period of time, at some point you are making use of it. You're not simply informing yourself as to your legal position and returning it, if that's the obligation. At some point you're making use of it, whether or not you actually do something. You may just enjoy reading it, and you're making use of it for your own purposes. You're not entitled to make use of the document if it's one that's covered by this act.

The second question relates to a particular member of the committee. As I indicated to the member, I prefer not to reply with specific reference to any member of this committee.

The third question is on whether or not the circulation of the document in a committee meeting room, but not as part of the official proceedings of the committee, means the document somehow falls or moves outside the act. In my view, no, it doesn't.

The privileges for documents with regard to committee proceedings turn on those documents becoming part of the committee proceedings at some point. Until that point, they are no different from any other document. The person in possession of the document, including members of Parliament, is in no different position from any other person in possession of those documents. But once they become part of the proceedings of this committee, they are then privileged. In my view, the committee is at liberty to look at those documents and deal with them. That's not to say the committee shouldn't take some precautions about public disclosure and should maybe go in camera, and that kind of thing.

How does it happen? Well, I think it would happen, Mr. Chairman, if the document were given to you and you, as chair, asked the committee if they wanted the document circulated, and so on. The committee could by resolution say the document should be circulated and they would look at it at the next meeting. From that point, in my view, the document is now part of the committee's proceedings. It took place within a committee proceeding.

But I don't think the fact that the document shows up in a committee room and is somehow shuffled about among members, but it's never properly introduced to the committee, brings it within the proceedings of the committee. I don't think it thereby acquires the protection of parliamentary privilege.

The fourth question is on what further obligations committee members face with regard with to the examination of these documents to ensure they do not commit any new offences. Once the document is part of the proceedings of the committee, I don't think you're susceptible to any offence for studying the document in the course of your committee proceedings.

What a committee member might do with the document outside this committee room could well give rise to a problem. The privileges apply to that document for the purposes of the committee proceeding, not for any other purpose. It's not to be taken as a licence to take the document elsewhere and use it for other purposes.

It's not to say the document won't get into the public domain by virtue of the committee proceedings. It may well happen. But the privilege attached to that document is not itself a licence for an individual member, or an individual staff person, or a person in the room to take the document and go elsewhere with it.

The privilege is for the purposes of the committee proceedings. I would think the law would say that's the limit to which any protection enjoyed by the document applies.

Those are the answers to the four questions.

[The Chair, Liberal, Tom Wappel]

Mr. Walsh, I know you've only had a brief time. I would ask you this, though. Have you have been able to form an opinion of any kind on whether or not the document entitled “Afghanistan 2006: Good Governance, Democratic Development and Human Rights”, the documents for the years 2002, 2003, 2004, 2005, or any of them fall under the definition of documents in the Security of Information Act?