Procedure and House Affairs Committee on June 18th, 2014

[The Chair, Conservative, Joe Preston]

I call the meeting to order. Meeting number 46 is in public and televised.

We have with us tonight some guests from House administration.

Mr. Bosc, it's great to have you here. I understand you're going to make a short opening statement and introduce those with you today.

Let's go ahead and get that started.

[Marc Bosc, Deputy Clerk of the House of Commons, House of Commons]

Thank you, Mr. Chairman.

Good afternoon, members of the committee.

I'm here today with Richard Denis, deputy law clerk, and Mark Watters, chief financial officer, in response to the committee's request for a technical briefing with respect to the Board of Internal Economy's recent decision on certain large-volume mailings.

Before I yield the floor to Mr. Denis, I think it's important that I address you, in my capacity as interim secretary of the Board of Internal Economy, so as to clarify the parametres which govern the information we can give the committee with respect to the board's decisions.

As members of the committee know, the proceedings of the board are confidential. Just as board members swear an oath of confidentiality in order to carry out their duties, employees of the House administration who support the board are bound by the conflict of interest policy that precludes us from communicating information obtained as a result of our employment that is not available to the public.

Consequently, the deputy law clerk will be able to comment the technical aspects of the board's decision that have already been made public. He will be able to describe for the members of the committee the administrative rules involved in this matter. He will be able to explain the differences between the responsibilities of the board and those of your committee. He may also describe the authority the board has to require that funds be paid back.

If the questions put by the members of the committee concern the technical practices with respect to the recovery of funds, Mr. Watters may answer.

With that, I will now turn the floor over to the deputy law clerk.

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

Thank you, Marc.

Good evening, Mr. Chair and members of the committee.

Thank you for the invitation to appear before you following yesterday's meeting of your committee.

In addition to the duty of confidentiality imposed on House employees and referred to by the deputy clerk, I want to remind the committee that there are professional obligations imposed on me and counsel working for the House of Commons by the various law societies to which we belong also requiring us to protect confidentiality.

As you know, the trust that members put in the Office of the Law Clerk and the quality of the advice that they receive from us are of the utmost importance. I want to assure members that they can always count on us to provide neutral, non-partisan, and professional advice.

With this in mind, I am sure members will understand that I will not be able to specifically speak to the internal discussions that occurred at the board, but, as mentioned by Mr. Bosc, I will endeavour to explain the rules that apply in the current circumstances.

Perhaps I will start by summarizing the board's recent decision on this matter.

Referring to the publicly available minutes of the board's meeting of June 2, 2014, the board decided as follows.

I will quote from the minutes:

that certain New Democratic Party mailings under recent investigation were in contravention of the Board's by-laws on the grounds that they were prepared by and for the benefit of a political party; that the House Administration provide advice to the Board on appropriate remedies; that the Board's spokespersons be authorized to report to the public that the mailings have been found in contravention of the by-laws, and that the Board is seeking advice on appropriate remedies; and that, further to a previous request for proofs of mailings, all proofs of mailings related to this matter be provided to the House Administration for analysis by June 13, 2014.

Indeed, the board issued a public statement to this effect on June 3, 2014. The board met again on June 11 and issued a statement on June 12, the next day, that described its determination that 23 NDP members contravened subsection 4(3) and sections 6 and 7 of the Members By-Law. As such, these members would be directed to personally reimburse a total of $36,309 to the Receiver General for Canada, which represents the total direct known costs to the House of Commons.

The board's statement went on to explain that since the costs related to the use of the members' free mailing privileges under the Canada Post Corporation Act are paid to Canada Post by Transport Canada, the board would be informing Transport Canada of its decision regarding the improper use of the postal privilege and that this correspondence would be shared with the Chief Electoral Officer.

Turning to the bylaws that apply in this situation, in considering the matters of these mailings, the board exercised its exclusive authority under section 52.6 of the Parliament of Canada Act to determine if the use of House resources was proper. I will read subsection 52.6(1), because, of course, it's the core provision at play here.

52.6(1) the Board has the exclusive authority to determine whether any previous, current or proposed use by a member of the House of Commons of any funds, goods, services or premises made available to that member for the carrying out of parliamentary functions is or was proper, given the discharge of the parliamentary functions of members of the House of Commons, including whether any such use is or was proper having regard to the intent and purpose of the by-laws made under subsection 52.5(1).

Following its review, the board concluded that House resources were used for those activities, established the value of those resources, and considered which action would need to be taken to rectify the situation.

When determining whether or not the use of resources is proper, the test is to establish if such use falls within the parliamentary functions of the member. With specific reference to the bylaws engaged in the board's determination, section 1 of the Members By-Law, established by the board, defines “parliamentary functions” as follows:

Duties and activities that relate to the position of member, wherever performed and whether or not performed in a partisan manner, namely, participation and activities relating to the proceedings and work of the House of Commons and activities undertaken in representing his or her constituency or constituents.

Finally, subsection 4(3) of the Members By-Law provides further clarification on what is not considered “parliamentary functions”, as follows:

(a) activities related to the private interests of a member or a member's immediate family;

(b) activities related to the administration, organization and internal communications of a political party, including participation in a party leadership campaign or convention, solicitations of contributions and solicitations of membership to a political party;

(d) activities designed, in context of a federal, provincial, or municipal election, or any other local election, to support or oppose a political party or an individual candidate;

(e) activities that are related to a meeting of an electoral district association, as defined in the Canada Elections Act, and that are carried out for nomination, electoral or sponsorship purposes or that relate to soliciting contributions or membership.

Details on the application of these bylaws are further explained in the policies of the board set out in the manual of services for members, which all members are familiar with.

With that, I will now be happy to take your questions.

[The Chair, Conservative, Joe Preston]

Thank you, Monsieur Denis.

Yes, Mr. Scott.

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

I have a point of order, Mr. Chair.

Mr. Denis, thank you so much for being here.

I just want to make sure that when the time comes for questions, we're all respectful of the limits that I think exist for the law clerk. At some level maybe Mr. Denis can help the chair in this point, but the point is that the law clerk has an extraordinarily unique position in terms of being legal counsel at multiple levels—the House as a whole; committees, including this one; the Board of Internal Economy; and individual MPs, including the 23 MPs.

So I would simply ask, as a point of order, if the chair would be willing to convey this and maybe ask Mr. Denis that if he feels at any point his professional obligations with multiple representation will in any way be compromised, or that he will have a hard time answering for that reason, he should feel free to say, “I can't answer for that reason”.

[The Chair, Conservative, Joe Preston]

We had a bit of a discussion beforehand.

Please, in terms of what Mr. Scott has just said, if you can't answer the question, I expect you to tell us that you can't answer the question. Members may, as they are wont to do from time to time, try to go a different route to get the same answer, and I expect that you will guard yourself in that way too.

Mr. Denis.

[Richard Denis]

Thank you, Mr. Chair.

Just quickly, I am quite conscious of this multiple role or of the many facets of the role we play at the House. I can tell you that we take it very seriously. Of course our primary loyalty, if you wish, or our primary client, is the House itself, and it's manifested in many ways. But I will certainly decline to answer a question if I feel that in any situation that would compromise advice that I would give to any of you or other clients.

[The Chair, Conservative, Joe Preston]

Okay. Thank you.

In that case, we'll start.

Mr. Lukiwski, please begin our seven-minute round.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you very much.

Thank you, gentlemen, for being here today.

I'll get right to it. I think everyone knows the background of why we're here, so I don't have to get into the process that led us here today.

My first question is for Monsieur Denis.

Sir, could you lay out for me and the committee the exact rules regarding acceptable mass mailings and the conditions under which such mailings are rejected?

[Richard Denis]

Thank you, Mr. Chair.

The rules that relate to printing material are found in two places. The first is in the Members By-Law, one of the four bylaws established by the Board of Internal Economy. You will find in section 29 the rules that apply to the mailings.

The details, if you wish, are also found in the members' manual, the MAS, the Members' Allowances and Services Manual.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you.

In the interest of time, perhaps we'll just move on, but thank you for pointing us to the guide in which we can do our own research.

I'll just ask you this specifically then. Were the NDP mailings in question vetted by House administration before they were sent out? My understanding is that the NDP used a printer outside of the House of Commons to print these mailings. They didn't use print services. Were they vetted at all before the NDP put them into franked envelopes and mailed them out?

[Richard Denis]

Thank you, Mr. Chair.

I will explain the process that the House goes through when mailings are reviewed. I cannot specifically speak to these mailings, because doing that would involve an internal process and things that were discussed at the board, but in general terms, I can say that any mailing—which is what you find in section 29—that is prepared for members by the House administration through the printing services is vetted by our printing services, and they apply the test that you find in the MAS.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Right. In that case, since it's generally and widely known that these mailings in question were not printed in-house—they were printed outside the House of Commons—what ability, if any, does the House administration have to ensure compliance with the rules? In other words, if the NDP deliberately went out and printed some mailings that they didn't feel would be approved by the in-house print services, does the House administration have any ability whatsoever to ensure compliance with the rules?

[Richard Denis]

Mr. Chair, things sent with the frank available to members are not seen by the House administration, because they don't come to us. The frank is simply applied by the House, so mailings of that type would not be seen by the House administration in any way, shape, or form.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Okay. Further to my previous question, could you tell us specifically, or at least explain, how the mailings in question from the NDP contravene the rules?

[Richard Denis]

I cannot explain how these specific mailings would break the rules. I can explain, however, as you would find in the bylaws and in the MAS, the rules that apply to mass mailings.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

My understanding is that there are three specific reasons, or three instances in which mailings would not be approved. The first is that members are prohibited from soliciting for memberships in a mailing. Second, they would be prevented from soliciting funds in a mailing, and third, they would be prohibited from trying to promote an electoral function such as a general election or a by-election. Am I correct in that assessment?

[Richard Denis]

Without dealing specifically with these specific mailings—

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Let's say generally.

[Richard Denis]

In general, if you simply go to paragraph 29(1)(e), it says these services are available to members:

(e) printing or copying of material provided by the Member, except (i) solicitations of membership to a political party, (ii) solicitations of contributions for a political party,

as well as anything of an electoral nature, and—

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

In that case then, I was correct about those three solicitations.

I am going to give you a couple of examples. These are not related to the internal discussions you had at the Board of Internal Economy, so I don't believe this will prejudice you in any way from answering this question. I have three specific examples of NDP mailings, and I'll just give you the opportunity to say whether or not some of the content of those mailings, if they were brought to the board before, would have been approved.

The first one is a mailing from Mr. Mulcair himself. In the second-to-last paragraph, he speaks of trying to defeat the Harper government, and specifically, the quote in question I will give you is, “And come 2015, we'll be ready to replace him”—meaning the Harper government—“with a government that puts your priorities first.”

Would that meet the standard of what is acceptable?

In my view, this is the promotion of an electoral event, the 2015 federal election.

[Richard Denis]

I don't think I'm in a position, Mr. Chair, to answer this question. However, I just want to point out that regarding any kind of mailings that go to the board, ultimately it's the board that makes the decisions. The House administration provides the information, but the decisions about these ultimately are made by the board itself, not the House administration.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Okay.

With regard to the report that you had been engaged to conduct on behalf of the BOIE, you were asked to conduct an investigation, and you provided the findings to us at the outset of this meeting. If in fact your findings were presented to the board, and the board then reacted, would we be able to get...?

I guess I'd put my question to you, Mr. Bosc. If this committee requested a copy of that report that you presented to the Board of Internal Economy, would you be able to provide it to us?

[Marc Bosc]

That would be a decision of the board, Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Okay. Thank you for that.

Let me ask you this. How common is it for members of Parliament who are producing ten percenters, householders—