Procedure and House Affairs Committee on Dec. 6th, 2012

[The Chair, Conservative, Joe Preston]

Thank you, members. We should start. We do have a bit of a reduced quorum at the moment, but we're allowed to have our witnesses during a reduced quorum, and we have great witnesses today.

We have with us the Clerk of the House and the Acting Law Clerk. We're going to talk a little more about where we stand on the matter of privilege and access to information referred to us by the Speaker.

Madam O'Brien, I'd like to have you start for us, please.

[Audrey O'Brien, Clerk of the House of Commons, House of Commons]

Thank you, Mr. Chairman.

Good morning, everyone.

I'm very pleased to be here this morning. I'll be uncharacteristically very brief. I simply want to thank the committee for all of the work that it's doing on this question and exhort you to come back to the House with a robust report on parliamentary privilege.

As you will no doubt have realized yourselves from the testimony you've received, it's not a concept that's very well understood. Interestingly enough, it seems that the people who are most prepared to hold forth on it—I don't count myself among them—invariably start their interventions by saying, “I don't know much about parliamentary privilege, and I really don't know anything about constitutional law, but I'd like to tell you what to do.” I'd like you to perhaps set those things aside and heed the words of the Acting Law Clerk, which are to follow.

Thank you very much for having us here this morning.

[The Chair, Conservative, Joe Preston]

Thank you.

Monsieur Denis.

[Richard Denis, Deputy Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chair.

I have a statement, and I've distributed copies in English and French to I think all members.

Mr. Chair and members of the committee, thank you for your invitation to appear once again before you regarding your study on access to information requests and parliamentary privilege.

You will remember that when Mr. Bosc, the deputy clerk, and I appeared before you on October 16, 2012, we explained the background to the specific situation that gave rise to your committee's study, we reviewed the concept of parliamentary privilege, and we discussed how a process could be put in place to allow committees to deal with access to information requests made to the House as a third party for documents covered by parliamentary privilege.

Since then, your committee has heard from the Information Commissioner of Canada, Ms. Legault, and from Mr. Drapeau of the University of Ottawa, who explained the legal framework of the access to information regime.

Faced with this testimony stressing the limits that exist with the access to information legislation, but not having full information on the legal and constitutional impact of privilege, I can understand that the committee is now wondering how the law reconciles these two realities.

I note that a particular legal question has been raised on a number of occasions by members and witnesses, but has not yet, I believe, been squarely addressed or fully answered. Simply put, the question is as follows: given that there is no specific provision in the Access to Information Act that excludes or exempts disclosure of information covered by parliamentary privilege, on what legal basis can such information not be disclosed?

The answer is that the Access to Information Act, like all statutes, must be interpreted and applied in a manner that does not violate the Constitution.

As stated in the preamble and section 18 of the Constitution Act, 1867, parliamentary privilege forms part of the Constitution, and like any other part of the Constitution, it cannot be violated or infringed upon by the operation of a statute.

The concept of parliamentary privilege is not as well known as the Charter of Rights and Freedoms by many Canadians or some governmental officials, but it has the same status as all other constitutional provisions.

On two occasions, the Supreme Court of Canada has confirmed that parliamentary privilege has the same constitutional effect and weight as the charter, and that the charter cannot override parliamentary privilege: first, in the case of New Brunswick Broadcasting v. Nova Scotia—the Speaker of the House—where parliamentary privilege had to be measured against the charter; and second, in the case of House of Commons v. Vaid, where it had to be measured against the Canadian Human Rights Act. In both cases, privilege was determined to take precedence.

As members know, there is no provision in the Access to Information Act that indicates that information is not to be disclosed where to do so would violate the charter. However, I believe that departments and the Information Commissioner would have no difficulty in accepting that they are required to respect the charter rights even when the statute is silent.

And so it must be for parliamentary privilege: parliamentary privilege has equal constitutional status to the charter and must similarly be respected.

Where there is a conflict with a statute, it has always been a part of Canadian law that the Constitution must be respected and remain paramount. This is specifically set out in section 52 of the Constitution Act, 1982, which reads as follows:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

This provision does not only relate to the charter, but to all the parts of the Constitution, including parliamentary privilege, which is rooted in the preamble and section 18 of the Constitution Act, 1867, as stated earlier.

As such, even though the Access to Information Act does not specifically mention parliamentary privilege as an exemption or exclusion to disclosure, the act must be read and applied so as to give primacy to parliamentary privilege.

Further, parliamentary privilege must be recognized whether or not the access to information legislation is amended.

In the Vaid decision noted above, the Supreme Court of Canada determined that the Canadian Human Rights Act generally applied to the House of Commons. However, the court also determined that the act did not apply in such a manner so as to infringe parliamentary privilege.

As was noted in my earlier appearance, there is at least one case in Canada where the issue of parliamentary privilege was accepted as an “exception to” or an “exemption from” access to information legislation, where the act was silent. This was the case of the Assemblée nationale du Québec against Bayle in 1998 under the Quebec equivalent of the Access to Information Act. The access to information regime applies to the National Assembly. A request was made to the assembly for documents that were covered by parliamentary privilege. Notwithstanding that the assembly was covered by the act and notwithstanding that there was no specific exemption for materials covered by privilege, the court determined that the act could not operate so as to infringe constitutionally entrenched privileges.

So, it was within this constitutional and legal framework that our office took the actions that it did last summer.

I hope this information will be useful to the committee in its study. There are also a few additional legal points that I would like to submit to the committee for its consideration.

The collective privileges of members belong to the House itself and no one else. It is then up to the House to determine how its privileges are to be exercised. Only the House can choose to not insist on its privileges in any particular situation.

What is important is that since the privileges belong to the House, the House has the sole authority to exercise them or to determine how they will be exercised. The Speaker's role, and that of those who work under his or her authority, is to safeguard and protect those privileges.

To sum up, parliamentary privilege forms part of the Constitution of Canada. As part of the Constitution, all statutes must be read and applied so as to respect parliamentary privilege, in the same way that statutes must be read and applied in a manner that does not infringe on the charter.

Finally, during your proceedings it has been suggested that the only way to resolve these issues is through amendments to the Access to Information Act. In my view, because of the constitutional nature of parliamentary privilege, this is not necessary. However, given the uncertainty expressed by some about how privilege applies, consideration of some other form of legislative approach could be considered. If this is the direction the committee believes would be desirable, my office is available to address how this could be achieved, making sure that the interests and independence of the House and its members would not be compromised.

I thank you very much for your attention and I am available to answer your questions.

[The Chair, Conservative, Joe Preston]

Thank you very much. It was very informative.

Mr. Albrecht, we're going to go with you first.

I'd like to go through a couple of rounds of questions with our witnesses, and then if there is time afterwards, I'd like us to go in camera to discuss our report on this issue. But first let's gather as much information as we can.

Mr. Albrecht, you're up.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair. I'm not sure I'll take all of my seven minutes, so if one of my colleagues cares to follow up, they can do that.

First of all, Madam O'Brien, thank you for your acknowledgement that this is not well understood. I can certainly say that if it's not well understood by you, it certainly isn't that well understood by me. And it's been very confusing. However, I want to thank Mr. Denis for the great preamble today.

It appears clear that you're saying that an amendment is not necessary in spite of the fact that Madame Legault indicated that might be the way to go. You do indicate on the last page of your remarks that you are prepared to give us some other ideas as to how we might proceed. I'd like to follow up on that later. But prior to that question, if I could just ask you, if we were to go the route of calling for an amendment to the act, what would you see as some of the primary, unintended consequences that could come from that kind of procedure?

It would seem to me that by placing an amendment in the act, we may be making provision for some exclusion that we may not have foreseen, and we'd have to come back many times to revisit that. Could you comment on some unintended consequences? Then following that, are you prepared to give us a bit of a heads-up on some of the ideas that you allude to under paragraph 22 of your remarks today?

[Richard Denis]

Certainly. Thank you, Mr. Chair.

In terms of the unintended consequences of an amendment to the Access to Information Act, I'll start by stating that yes, there are certainly issues with the act as it's drafted presently because it does not address the question of parliamentary privilege, and that's essentially the reason we are here today: we don't really know how to deal with it. But if the act were to be amended, you would be faced with a situation where only the access to information regime would be clarified, whereas there might be other situations in the general sense where the privilege of the House could be affected.

I'm not getting into too much detail, but there are situations concerning human rights or the Privacy Act, financial administration. There are other situations in the general context of the statute law that could also raise questions about the privileges of the House. So if you were to amend only the Access to Information Act, one of the consequences would be that you would solve one problem, but you could also have others.

We've identified a few here that I could just briefly read into the record. Legally and constitutionally, it is for the House to make the determination on whether documents are covered by privilege. If that were the case, could there be a judicial review of this? That is a question that would have to be looked into as well.

The other problem you would have is.... Remember that the study here is essentially to decide whether or not requests to the House from third parties can be refused or excluded. This is in the context of the definition of proceedings in Parliament and what are proceedings in Parliament, so that question would still remain. How far privilege applies, or how far or what kinds of documents could still be requested, could be clarified through a report of the committee, but these kinds of questions would be lagging.

My point is that by only amending the Access to Information Act, you're limiting the solution.

In terms of proposed solutions, there are a few we have considered in addition to proposing amending the act. In the Parliament of Canada Act there are provisions where the privileges of the House are recognized. I will just briefly quote section 5, which tells you that:

5. The privileges, immunities and powers held, enjoyed and exercised in accordance with section 4

—which recognizes them—

are part of the general and public law of Canada and it is not necessary to plead them but they shall, in all courts in Canada, and by and before all judges, be taken notice of judicially.

One way of maybe solving or proposing an amendment would be to add to the Parliament of Canada Act a recognition of some sort that would make it necessary to recognize the nature of privilege. That way there could be language we could propose to the committee, in the sense that as a general rule the necessity would be imposed to take into account privilege in the application of all of the statute law. So you would have some sort of a head provision in the Parliament of Canada Act that would cover most situations.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

If I could just be clear, if your recommendation were to be followed, it would be not to change the Access to Information Act, but to change the Parliament of Canada Act with a moderate amendment.

[Richard Denis]

That would be one of our proposed solutions, because it is of a more general application. However, if the committee prefers to amend the Access to Information Act, we could certainly come up with a proposal that would take into account not only our concerns but also those of Monsieur Drapeau and Madame Legault, which were quite legitimate, looking at things from their angle, which I can understand.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Am I out of time?

[The Chair, Conservative, Joe Preston]

No. You have time left.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

After having read through your remarks today, and having listened carefully to your remarks, obviously I don't understand it fully, but I understand it far better, and I'm satisfied at this point that the right decisions were taken in the previous matter. I just want to compliment you on that.

[Richard Denis]

Thank you very much. It's appreciated.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Albrecht.

Mr. Scott, for seven minutes.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thanks so much for the testimony and the quite well-articulated explanation about the relationship between constitutional law and statutes. But I do want to clarify a few things just to see if we're on the same page.

It is pretty clear from your remarks and the text—and hopefully this is where we're all at—that it's not possible for a government institution or a government department on its own to decide questions of privilege. That's correct, right? There has to be some consultation with Parliament for that.

[Richard Denis]

Yes. The question about privilege is for the House. Ultimately, it's only the House itself as a group that decides whether or not the question of privilege is at stake.

It's not for the clerk. As I've said before, it's not for the Speaker, who's only the servant, just like employees of the House are servants of the Speaker, if you wish, but we work under his authority. That decision could not be made by a government institution.

In fact, the only way the House is advised of such a situation is because a request is made of a department. Because the information requested by someone deals somehow with the House of Commons, we are advised as a third party. By looking at the information, we assess that it's privileged. That's what starts the process.

[Craig Scott, NDP, Toronto—Danforth, ON]

And the Speaker, the Deputy Speaker, the clerk, or anybody can't make that decision unless Parliament has actually given them that role somewhere in Parliament's own decision-making process. Is that correct? It wouldn't be illicit constitutionally for us to say, in certain circumstances, the Speaker can respond to an issue of privilege, as the Speaker did over the summer.

[Richard Denis]

In the summer, because the House was not sitting, the Speaker essentially gave us the authority, just because we were facing a tight deadline, to request a judicial review of the decision of the Auditor General not to release the documents.

[Craig Scott, NDP, Toronto—Danforth, ON]

I understand that. The question is, if we were to entertain, almost within a report, codifying when the Speaker could actually act in that fashion, just to make that clear, there would be nothing illicit about our not saying a decision has to only be taken by a committee or the House as a whole. We can delegate that authority. Is that correct?

[Audrey O'Brien]

Mr. Scott, yes, if the committee were to report wanting to codify certain instances, for instance, where they felt the privilege should be waived or how we should comport ourselves, and the report was concurred in by the House, then it's a directive of the House.

[Craig Scott, NDP, Toronto—Danforth, ON]

Excellent. Just to make sure we didn't add any more confusion, that was my understanding. Thank you.

In terms of the third party, Mr. Denis, you did refer to the third-party notice, but of course one of the big points from Madame Legault is that the third-party notice provisions in the act don't explicitly apply. I think she'd be loath to say that the third-party notice procedure actually had been used, versus some, you would say, constitutionally mandated consultation taking place. The department knew that privilege was involved and therefore the department consulted Parliament.

But in the use of your language, do you consider that the best way to look at what happened is that the Access to Information Act implicitly contains a third-party notice provision on the parliamentary privilege issue, and that it sits there paralleling the general third-party application notice? Is that the way you would think of it?

[Richard Denis]

I would say no. The act does not specifically envisage privilege because it's not specifically described, but the fact that the information that is requested when the House is advised...we appreciate and realize it is covered by privilege, so that's essentially what starts the process, if you wish.

Even if a process was put in place by the committee for how to deal with a specific request, the point would have to be made that the documents always continue to be covered by privilege.

What the committee or the House ultimately would be doing is agreeing to the release of the documents, even though...and I guess that would be some sort of a caveat....

[Craig Scott, NDP, Toronto—Danforth, ON]

The privilege continues to attach to it. I understand that.

Perhaps I could get it slightly clearer in my head. The point is, until a report from this committee comes, or until, for example, the Access to Information Act is amended, how do we think about the way in which a department or a ministry consults Parliament? Is this just as kind of a parallel constitutional process, or are you telling us that you think it's actually occurring within the Access to Information Act, albeit through read-in procedure?

[Richard Denis]

I'll going back to my initial statement. The constitutional principles are essentially overriding any provisions in the act, so they are always there, and they have to be accounted for and taken into consideration in any of these situations, whether or not you have the legislation dealing with it.

[Audrey O'Brien]

If I may, Mr. Chairman, if I understand Mr. Scott's question, I think we have in fact dealt with it as implicit in the legislation, and that has been something that has been recognized in our dealings on exactly these kinds of issues as a third party dealing with other government departments and agencies.

It was only when we encountered the Auditor General—and our initial discussions, which felt that the documents were privileged because they attached to proceedings in Parliament—and we found that the lawyers there took a different view because it was not explicitly referred to, which forced us into this series of events that you know.

But, generally speaking, that's how we've been operating, and it's been operating fine.