House of Commons Hansard #128 of the 40th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was information.

Topics

(Return tabled)

Questions Passed as Orders for Return
Routine Proceedings

10:25 a.m.

Conservative

Tom Lukiwski Regina—Lumsden—Lake Centre, SK

Mr. Speaker, I ask that all remaining questions be allowed to stand.

Questions Passed as Orders for Return
Routine Proceedings

10:25 a.m.

Liberal

The Speaker Peter Milliken

Is that agreed?

Questions Passed as Orders for Return
Routine Proceedings

10:25 a.m.

Some hon. members

Agreed.

Subject Matter of Allotted Day Opposition Motion
Points of Order
Routine Proceedings

December 10th, 2009 / 10:25 a.m.

Regina—Lumsden—Lake Centre
Saskatchewan

Conservative

Tom Lukiwski Parliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, I rise on a point of order concerning the content of the motion to be proposed by the hon. member for Vancouver South.

Let me say at the outset that the government readily accepts that allotted day motions ought not to be interfered with by the Speaker, except on the clearest and most certain procedural grounds. We believe that such grounds for intervention exist.

Mr. Speaker, I want to draw your attention to your own ruling of March 26, 2007 at pages 1873 to 1875 of Hansard. On that occasion the issue was a supply day notice which, had it been in order and had been adopted, would have timetabled four bills.

The motion today, if adopted, would order the government to produce a long series of documents, and as quoted in the motion itself “in their original and uncensored form”.

It is our contention that this is an improper use of a supply day motion. A number of outstanding issues surround the documents listed in the motion. There are issues of statutory secrecy, military secrecy and international agreements, all matters that this House has habitually respected when requesting papers and records.

In some cases, the custodians of these records are statutorily barred from making them public. The passage of this motion would order them to violate laws which have been enacted with the consent of the House of Commons and the Senate, the two chambers that, along with the Queen, compose Parliament. It bears repeating, the House of Commons alone is not Parliament; it is one-third of Parliament. Statutes carry the authority of the three elements.

The motion proposed by the member for Vancouver South would order people to break the law under the authority and order of only the House of Commons. Because this is an allotted day motion, it is not subject to the usual process which could include negotiation of amendments that a majority of the House might accept, notwithstanding their unacceptability to the opinion of the mover of the motion itself.

The traditional regress of grievances preceding the granting of supply never included requiring public officials to break the law, yet that is what this motion would order. Will the next allotted day motion order the release of tax information, for example, or other secret contents in government files? Where would this lead? In other words, to use the vernacular, this could be the start of a very slippery slope.

Are allotted days to become opportunities to violate the rights of Canadians through substantive motions that bypass the statute law? I suggest this was never seen as the function of allotted days, and request that the Speaker recognize that this motion exceeds the long-standing conventions surrounding supply day motions.

Subject Matter of Allotted Day Opposition Motion
Points of Order
Routine Proceedings

10:30 a.m.

Niagara Falls
Ontario

Conservative

Rob Nicholson Minister of Justice and Attorney General of Canada

Mr. Speaker, the government accepts that the practice and procedure before parliamentary committees is governed by parliamentary convention. However, parliamentary privilege does not relieve public servants of their obligation to protect sensitive information that relates to national security, national defence or international relations when appearing before a parliamentary committee.

Parliament has recognized the importance of protecting confidential information in statutes such as the Security of Information Act, the Canada Evidence Act, the Access to Information Act, the Privacy Act, and of course, the Criminal Code.

The principle of public interest immunity is also well established in the common law. There is an equally well established parliamentary convention that committees will respect common law privileges and Crown immunity, particularly in relation to national defence, national security or international relations, and not require the disclosure of injurious information.

While section 38 of the Canada Evidence Act may have no direct application to the committee's proceedings, the values that underline that provision are also reflected in parliamentary convention.

I refer you to the authoritative text, Maingot's Parliamentary Privilege in Canada, at page 163, which states:

By convention, a parliamentary committee will respect Crown privilege when invoked, at least in relation to matters of national and public security.

The documents that have been provided to the committee by the government were redacted, pursuant to section 38 of the Canada Evidence Act, for the purposes of the public interest hearing before the Military Police Complaints Commission. These redactions were necessary, given the MPCC's decision to hold public hearings into complaints it had received. This provided the MPCC with the power to compel testimony and documents, and the hearing was therefore a proceeding under section 38 of the Canada Evidence Act. Before it announced public hearings, the MPCC was investigating the detainee complaints and was given full access to thousands of pages of unredacted Canadian Forces and Department of National Defence documents.

While section 38 of the Canada Evidence Act may not apply directly to the proceedings of the committee, the values that inform this legislation passed by Parliament are consistent with the parliamentary convention that injurious information should not be disclosed in a parliamentary setting.

Accordingly, the process under section 38 of the Canada Evidence Act serves as a useful surrogate to identify information that should not be disclosed to a parliamentary committee, because its disclosure would be injurious to national security, national defence or international relations. As previously noted, this is completely consistent with parliamentary convention.

Subject Matter of Allotted Day Opposition Motion
Points of Order
Routine Proceedings

10:35 a.m.

Liberal

Ujjal Dosanjh Vancouver South, BC

Mr. Speaker, the nub of the matter is that our view of the law and the convention is different from that of the government. For the last several months, it has been standing in the House and saying that section 38 is the reigning section, that it is the section that governs non-disclosure of documents.

Today, the government admits through its own letter from the Department of Justice that section 38 does not actually apply to parliamentary proceedings. That has been a big lie that the government has perpetrated in this chamber over the last—

Subject Matter of Allotted Day Opposition Motion
Points of Order
Routine Proceedings

10:35 a.m.

Conservative

Laurie Hawn Edmonton Centre, AB

A lie?

Subject Matter of Allotted Day Opposition Motion
Points of Order
Routine Proceedings

10:35 a.m.

Liberal

Ujjal Dosanjh Vancouver South, BC

Yes, absolutely, it has been a lie that has been perpetrated and uttered in this chamber for some time.

Mr. Speaker, I will withdraw the word if it is offensive to the government.

However, I have an opinion. In fact, there are two opinions from the law clerk that indicate that section 38 does not restrict the right of Parliament and the committee to receive documents. The committee may, by its own decisions, create a procedure whereupon if it considers any of the documents it receives as injurious to national security interests or international relations, it may not disclose those documents to third parties or may have a hearing that might be in camera. That is in fact in the opinions that I have received from the law clerk. I would be happy to pass them on, and they have been tabled in the committee.

The government is now finally realizing that section 38 does not afford it the claims that it has been making. It now rests or relies on a convention, citing an authority in saying that Parliament will at least respect the Crown's decision on non-disclosure in matters of national security.

When the government says that Parliament is two houses, that is a fiction it creates. Yes, in terms of passing legislation, Parliament is two houses. When section 38 was passed in the House, there was a definition of proceedings in that legislation that was picked up directly from the Criminal Code. It was eliminated and amended to ensure that Parliament has unfettered access to the documents it may require to do its job.

The job of Parliament is to oversee the government. Government cannot claim, whether by convention or otherwise, total immunity for whatever it desires. The nub of the question here is that we do not believe the government is blanking out or redacting documents in the interests of national security. It is doing so in the interest of covering its own butt. I think that is very important to remember.

The two opinions I have from the law clerk, which are public, and the opinion yesterday from the Department of Justice go to show that the government is on very thin ice and that its claim should not be respected.

Subject Matter of Allotted Day Opposition Motion
Points of Order
Routine Proceedings

10:35 a.m.

NDP

Judy Wasylycia-Leis Winnipeg North, MB

Mr. Speaker, I would like to make a few comments, as well, questioning the wisdom of the government suggesting in any way, shape or form that this supply day motion is out of order.

Supply day motions are one of the few opportunities the opposition has to hold the government to account. It is either through question period or supply day motions. Those are the two opportunities we have to demand accountability from the government on anything to do with its budgeting process. Those provisions are sacrosanct in our rule books.

There has been, over the years, very little attempt to intervene in the choice of opposition supply day motions. So it is quite unusual for the government today to suggest that there is a problem with the wording of this motion.

Our process requires that if there is a problem with a motion, or some disagreement with the actual direction the motion is taking, then the government or anyone concerned has the opportunity to vote against the motion at the end of that day. That is democracy—not an effort to prevent the debate in the first place. That is truly unusual and unprecedented in this place.

We have rules in the House allowing members to challenge the government every step of the way, and at no point should our rules be interpreted in a way that would allow the government of the day to suppress debate. That is the antithesis of democracy, as it does not even allow the issues to get to the table.

I have listened to my colleague from the Liberal Party, whose name is on this motion. He has clearly put on record those sections of the rule book that allow for committees and the House to call whatever documents and whatever witnesses they feel are necessary for the process. That is self-explanatory.

What I wanted to do on rising on this point of order was to make the case that in the true spirit of this place, the focal point of democracy in this nation, under no circumstances should the government try to suggest in any way, shape or form that the rule books allow it to interfere with debate taking place, or to repress it in the first place.

I hope, Mr. Speaker, you will allow this day to proceed.

Subject Matter of Allotted Day Opposition Motion
Points of Order
Routine Proceedings

10:40 a.m.

Edmonton Centre
Alberta

Conservative

Laurie Hawn Parliamentary Secretary to the Minister of National Defence

Mr. Speaker, I am obviously rising to support my colleagues on this.

The opposition has talked about opinions. Opinions are fine, but they have to be backed up by the rule of law. Canada operates on the rule of law. Parliament operates on the rule of law and precedent and convention.

On the first point about documents, the Government of Canada has in fact provided documents as quickly as possible, given the time constraints, the volume of the documents requested and the requirement under the Official Languages Act to have the documents translated into both official languages. In under one week, the committee was provided with relevant memos and details of Mr. Colvin, which were the most sought after documents by the committee. As time goes by, more and more documents will be made available.

On another point, the House of Commons has always recognized the limits of privilege relating to issues of national security and international affairs, as these are Crown or executive constitutional responsibilities that also require a public interest test. The Government of Canada has a responsibility to protect the public interest in these cases and, historically, committees of the House of Commons have respected the public interest test.

Marleau and Montpetit assert this argument in stating:

The House of Commons recognizes that it should not require the production of documents in all cases; considerations of public policy, including national security, foreign relations, and so forth, enter into the decision as to when it is appropriate to order the production of such documents.

Similarly Beauchesne's notes that the Government of Canada, not the Speaker or the House of Commons, retains the right to define confidential documents and that it is up to the government to determine whether any letters, papers and studies are of a confidential nature when deciding how to respond to a notice of motion for the production of papers.

Generally speaking, government members also reject the notion that the House of Commons has a right to cabinet documents. This claim to cabinet documents obviously interferes with the constitutional roles of limits and legislative and cabinet or executive banks of government in our Constitution.

Mr. Speaker, in our strong view, this motion is out of order and we request your wisdom in that judgment.

Subject Matter of Allotted Day Opposition Motion
Points of Order
Routine Proceedings

10:40 a.m.

Liberal

The Speaker Peter Milliken

The hon. member for Mount Royal is rising on the same point?

Subject Matter of Allotted Day Opposition Motion
Points of Order
Routine Proceedings

10:40 a.m.

Liberal

Irwin Cotler Mount Royal, QC

Yes, Mr. Speaker, I just want to make a number of submissions in response to what my hon. colleagues have said.

First, it has been argued that the motion, in this sense, is asking that the law be broken. The motion is not asking that the law be broken. On the contrary, it is asking that the government comply with the law with respect to parliamentary privileges and the production of papers relating thereto.

Second, privileges of Parliament are supreme, overriding, and not subject to ordinary statute law, such as the Canadian Evidence Act or otherwise. The notion that parliamentary privileges are subject to or contingent upon ordinary statute law would not only diminish parliamentary privilege, but would also undermine the authority of Parliament, its representativeness and its protective framework regarding the authority of committees.

Third, the notion that there is a convention that overrides parliamentary privilege in this regard actually runs the other way. The convention is that of the supremacy of Parliament, in that the convention seeks to underpin parliamentary privilege, not diminish it.

Number four, parliamentary privilege is subject to the Constitution in the manner of the Charter of Rights and Freedoms as set forth in the House of Commons v. Vaid Supreme Court case of 2005, 1 SCR 667, but it cannot be exercised in the sense that it diminishes the rights with respect to that which is protected under the constitution.

This brings me specifically to my conclusion in the matter before us. This is not governed by the Vaid case and the charter, because this has the specific carve-out with respect to the overriding authority of parliamentary privilege. I will quote now from O'Brien and Bosc with respect to their complete discussion regarding parliamentary privilege, the authority of committees and the production of papers, exactly on point with respect to the motion before the House. I quote:

The Standing Orders state that standing committees have the power to order the production of papers and records, another privilege rooted in the Constitution that is delegated by the House.

Only if there would be an exception regarding the matter of protecting against discrimination, as the Vaid case said, would there be any issue that comes into place. It is not with regard to the production of papers, which, it is clear, is part of the absolute and authoritative power of the House.

O'Brien and Bosc continue:

Committees usually obtain such papers simply by requesting them from their authors or owners. If a request is denied, however, and the standing committee believes that specific papers are essential to its work, it can use its power to order the production of papers by passing a motion to that effect.

The Vaid case recognizes that with regard to this particular privilege.

The key is the following. As O'Brien and Bosc state:

The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the types of papers likely to be requested; the only prerequisite is that the papers exist—in hard copy or electronic format—and that they are located in Canada.

Here, on a matter of practice also, I again quote O'Brien and Bosc:

In practice, standing committees may encounter situations where the authors of or officials responsible for papers refuse to provide them or are willing to provide them only after certain parts have been removed. Public servants and Ministers may sometimes invoke their obligations under certain legislation--

—as we hear today, or with regard to a national security carve-out—

--to justify their position.

Here O'Brien and Bosc conclude, as I do:

These types of situations have absolutely no bearing on the power of committees to order the production of papers and records.

This is clear. The language of O'Brien and Bosc is unequivocal, who go on to say:

No statute or practice diminishes the fullness of that power rooted in House privileges unless there is an explicit legal provision to that effect.... The House has never set a limit on its power to order the production of papers and records.

This is as clear as it can be from the most authoritative source on this matter.

Subject Matter of Allotted Day Opposition Motion
Points of Order
Routine Proceedings

10:45 a.m.

Liberal

The Speaker Peter Milliken

The hon. member for Saint-Jean on the same point of order.

Subject Matter of Allotted Day Opposition Motion
Points of Order
Routine Proceedings

10:45 a.m.

Bloc

Claude Bachand Saint-Jean, QC

Mr. Speaker, today's point of order does not surprise me in the least, because the government has always taken refuge in non-transparency, non-disclosure, censorship and so on.

Regarding the opposition motion that is being introduced today, the parliamentary secretary referred to cabinet documents. That is not what we are asking for. These documents have already been tabled before various commissions of inquiry. What he is saying is a bit over the top.

I have also taken a close look at the study by Parliament's legislative counsel. His theory is based in part on the philosophy of the British parliamentary system. The legislative counsel says that the members of the House of Commons or its committees are, of necessity, the grand inquest. It is our responsibility to get to the bottom of things and obtain all the documents we need to prove a point. I very much like the idea that the House of Commons is the grand inquest.

For their part, the government members, including the parliamentary secretary who is speaking here today, are the protectors of the realm, so to speak. They want to protect the realm.

I saw this debate coming. The Special Committee on the Canadian Mission in Afghanistan had this discussion with General Watkin, who is the government's Judge Advocate General or JAG. The general said that he could not disclose certain confidential information because of his privileged relationship with his client, the government. According to him, the laws of Parliament do not apply. That is what is at the heart of the debate.

I even asked the general to consult his client, the Government of Canada, and to come back to the committee to tell us which had precedence: Parliament or a law such as the Canada Evidence Act, which states in section 38 that the government has a right to censor information.

I feel that the government is going much too far in its desire to protect the realm. As for us, we all have full authority to act as the grand inquest on behalf of the people who elected us. That is the first thing.

I also told the general, the JAG, that when a law applies to parliamentarians, only the House can decide how that law will be applied. That covers a lot. It means we have complete flexibility.

We have already partially addressed this issue in the House, and I am pleased we are addressing it directly here today. How are we supposed to act as the grand inquest, defend democracy and enjoy parliamentary immunity if we are not given the tools we need?

The government is going as far as intimidating witnesses and telling them they cannot speak out. It is doing a good job protecting its realm, but this goes against our role as the grand inquest. As representatives of our constituents, it is our responsibility to get to the bottom of things. When the government tries to restrict our parliamentary rights through censorship or by denying us access to certain documents, it is depriving us of our right to carry out inquiries.

If parliamentary immunity is also interfered with, for members as well as witnesses, the government is undermining our basic right as the grand inquest and defenders of democracy. We have the right to ensure that what is happening is just as we think it should be.

People may say that we will never obtain the absolute truth, and I would agree with them. However, we have a basic right, for we have all been legitimately elected to represent our constituents, who expect us to be diligent and to get to the bottom of things, as set out in the text before us here today.

So through its commissions, this government was able to restrict, suppress and undermine our right of access to certain documents. The Special Committee on the Canadian Mission in Afghanistan was forced to take over, since we know something is wrong here. The protector of the realm is not always in the right.

As the grand inquest, we are determined to get to the bottom of things.

The legislative counsel even raised the issue of legislation that could allow ministers and the government to withhold information from Parliament. What is at stake here today? We are talking about censorship, undisclosed documents, banned documents, and stalling tactics like the ones the government is using today to try to push back the schedule. The goal is to get to the end of the parliamentary session and bury the whole affair for a month and a half.

The legislative counsel said that, “If a law allows ministers or the government to conceal information from Parliament, that will mean that the government may invoke the law and avoid its obligation to account to the House”, which would be unconstitutional. I want to emphasize that. There is something unconstitutional in what the government is trying to do today, namely to close the investigation by the Military Police Complaints Commission, and by the Special Committee on the Canadian Mission in Afghanistan. That, too, is a constitutional matter.

I look forward to your ruling because it will be based on the very heart and foundation of democracy. Perhaps your ruling, through case law, will untie the hands of the members. As members of Parliament, we cannot allow our rights to be restricted, the immunity of our witnesses to be infringed on, or documents to be censored. We do not have the same tools. We find ourselves in committee facing witnesses who have had full access to the documents and we, as the grand inquest, are not entitled to see these documents in the same format as those who testify before us. This infringes on our rights.

The government is not being transparent on this issue. It is isolating itself. It is using strategies that absolutely must be denounced. And you have that great responsibility. You must rule in favour of the members of the grand inquest who are here to represent their electors on this.

I am counting on you and I hope you will make the right decision. Nonetheless, I can say one thing: even if the government tries to censor us, silence us and gag us and take immunity away from our witnesses, the opposition is determined to get to the bottom of this.