House of Commons Hansard #34 of the 40th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was c-3.

Topics

Presence in Gallery
Oral Questions

3 p.m.

Liberal

The Speaker Peter Milliken

I would also like to draw the attention of hon. members to the presence in the gallery of the Hon. Danny Williams, Premier of Newfoundland and Labrador.

Presence in Gallery
Oral Questions

3 p.m.

Some hon. members

Hear, hear!

Provision of Information to Special Committee on the Canadian Mission in Afghanistan--Speaker's Ruling
Privilege
Oral Questions

3 p.m.

Liberal

The Speaker Peter Milliken

I am now prepared to rule on the question of privilege raised on March 18, 2010, by the hon. member for Scarborough—Rouge River, the hon. member for St. John's East and the hon. member for Saint-Jean concerning the order of the House of December 10, 2009, respecting the production of documents regarding Afghan detainees.

I would like to thank those three members raising these issues. I would also like to thank the hon. Minister of Justice and Attorney General of Canada, the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons, the hon. House Leader of the Official Opposition, and the hon. members for Toronto Centre, Joliette, Windsor—Tecumseh, Yukon, Toronto—Danforth, Outremont and Kootenay—Columbia for their interventions on this important matter on March 18, 25, and 31, and on April 1 and 12, 2010.

The facts that have led the House, and the Chair, to be seized of this case are the following:

On February 10, 2009, the House recreated the Special Committee on the Canadian Mission in Afghanistan. This committee conducted its business in the usual way and began, in the fall of that year, to seek information from the government on the treatment of Afghan detainees.

On November 27, 2009, the committee reported to the House what it considered to be a breach of its privileges in relation to its inquiries and requests for documents.

On December 10, 2009, the House adopted an order for the production of documents regarding Afghan detainees.

On December 30, 2009, the session in which this order was adopted was prorogued.

On March 3, 2010, when the present session began, the Special Committee was re-constituted and resumed its work. Since Orders of the House for the production of documents survive prorogation, the House Order of December 10, 2009, remained in effect.

On March 5, 2010, the Minister of Justice rose in the House to announce that the government had appointed former Supreme Court Justice Frank Iacobucci to undertake “an independent, comprehensive and proper review of the documents at issue”.

The minister described Mr. Iacobucci's mandate in relation to the order of December 10, 2009 specifying that the former justice would report to him.

On March 16, 2010, the Leader of the Government in the House of Commons tabled the specific terms of reference for Mr. Iacobucci.

On March 18, 2010, three members raised questions of privilege related to the order of December 10, 2009. A number of other members also contributed to the discussion.

On March 25, 2010 and again on April 1 and 26, 2010 the government tabled a large volume of documents regarding Afghan detainees “without prejudice” to the procedural arguments relating to the order of December 10, 2009.

On March 25 and April 1 the Chair also heard interventions from members.

On March 31, 2010 the government responded to the arguments made in relation to the questions of privilege raised on March 18, 2010.

Last, on April 1, and again on April 12, 2010, the Chair heard arguments on the questions of privilege from several members, took the matter under advisement and undertook to return to the House with a ruling.

Before addressing the arguments brought forward, I want to take this opportunity to remind members of the role of the Chair when questions of privilege are raised.

House of Commons Procedure and Practice, second edition, O'Brien and Bosc, at page 141 states:

Great importance is attached to matters involving privilege. A Member wishing to raise a question of privilege in the House must first convince the Speaker that his or her concern is prima facie (on the first impression or at first glance) a question of privilege. The function of the Speaker is limited to deciding whether the matter is of such a character as to entitle the Member who has raised the question to move a motion which will have priority over Orders of the Day; that is, in the Speaker's opinion, there is a prima facie question of privilege. If there is, the House must take the matter into immediate consideration. Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.

As Speaker, one of my principal duties is to safeguard the rights and privileges of members and of the House. In doing so, the Chair is always mindful of the established precedents, usages, traditions and practices of the House and of the role of the Chair in their ongoing evolution. It is no exaggeration to say that it is a rare event for the Speaker to be seized of a matter as complex and as heavy with consequence as the matter before us now.

Because of the complexity of the issues that have been raised, and the large number of lengthy interventions made by hon. members, I have taken the liberty of regrouping the issues thematically in order to address the arguments presented more effectively.

The main and most important issue that the Chair must address today concerns the right of the House to order production of documents, including the nature of the right, questions related to the extent of the right and the manner in which the right can or ought to be exercised. All members who have intervened on these matters of privilege have touched on these fundamental questions in one way or another. In addition, the Chair has been asked to determine whether or not the order has been complied with, and if not, whether this constitutes, prima facie, a contempt of the House.

A second matter before the Chair is the contention—made primarily by the member for Scarborough—Rouge River—that witnesses were intimidated by answers given in Question Period by the Minister of National Defence and that a letter written by an official from the Department of Justice was contemptuous of the House in setting out for potential witnesses a false basis for refusing to answer questions in a committee of this House.

Arguments were also made in relation to a third theme, namely the form, clarity and procedural validity of the December 10 order of the House. These issues arose when the Parliamentary Secretary to the Leader of the Government in the House of Commons contended on March 31, 2010, that the order of December 10 was fatally flawed in that it seeks documents that he claims can only be obtained by way of an Address to the Governor General. Related issues were brought to the Chair’s attention on the same day by the Minister of Justice, who stated, at page 1225 of the Debates:

Mr. Speaker, as you will recall, the December order called for uncensored documents. It listed eight different categories of documents to be produced. The order did not specify exactly when such documents should be produced, who should produce them or to whom they should be produced. The order made no reference to the confidential information being protected...

The fourth theme that the Chair wishes to address concerns the issue of accommodation and trust which a number of members on both sides of the House have raised. Several members have made reference to the need to safeguard confidential information that, in the words of the Minister of Justice, as found at page 7881 of the Debates of December 10, 2009, “if disclosed, could compromise Canada's security, national defence and international relations”. More significantly, a number of members have indicated that they wish to find a way to accommodate the desire of the House for information while also accommodating the desire of the government to protect sensitive information.

The first arguments the Chair wishes to address are those related to the form, clarity and procedural validity of the December 10 order.

The Minister of Justice has called into question the clarity of the order. On reading the order, it is abundantly clear to the Chair that it is the government that is expected to produce the documents demanded, and that in the absence of instructions to the contrary, the documents are to be tabled in the House in the usual manner. In this sense the minister and the parliamentary secretary are correct in asserting that no provision is made in the order for confidential treatment of the material demanded. The Chair will return to this aspect of the question later in this ruling.

As to when the material is to be tabled, the order says very clearly “forthwith”. House of Commons Procedure and Practice, Second Edition, at page 475 states:

...if the House has adopted an Order for the production of a document, the Order should be complied with within a reasonable time. However, the Speaker has no power to determine when documents should be tabled.

As to the procedural validity of the order, as well as its form, the Chair wishes to draw the attention of the House to Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, which states at pages 245 and 246:

Previous to the session of 1876, it was customary to move for all papers by address to the Governor General, but since that time the regular practice of the English houses has been followed. It is now the usage to move for addresses only with respect to matters affecting imperial interests, the royal prerogative or the Governor in Council. On the other hand, it is the constitutional right of either House to ask for such information as it can directly obtain by its own order from any department or officer of the government...papers may be directly ordered when they relate to canals and railways, post office, customs, militia, fisheries, dismissal of public officers, harbours and public works and other matters under the immediate control and direction of the different departments of the government.

As this passage makes clear, an order is issued when seeking papers that fall under the “immediate control and direction of the different departments of the government”. As an example, in the case of the documents related to the Chief of the Defence Staff referred to by the parliamentary secretary, it is simply not credible to claim that these documents are not under the control of the government.

The parliamentary secretary has referred to certain rulings of my predecessors in making his arguments and has also provided additional material in support of his contention. The Chair has examined these precedents—a ruling from 1959 by Mr. Speaker Michener and a ruling from 1982 by Madam Speaker Sauvé—but is not convinced that they directly support the particular circumstances faced by the House in this case.

A further point to be made on this issue has to do with the documents tabled “without prejudice” so far by the government in response to the order of December 10. The Chair wishes to point out that of the documents tabled, several appear to fall into the categories which the parliamentary secretary claims require an address before they can be produced. In addition, the fact that these documents have been tabled has been cited by the government as a gesture of good faith on its part and an indication that it is complying, to the extent that it feels it can, with the order of December 10.

Finally, as the member for St. John's East noted, in response to objections raised at the time debate was commencing on the original motion, a decision was rendered that the motion was in order. Consequently, the House went on to debate and decide the matter: the House has expressed its will, and that is where the matter now stands.

I have considered the arguments put forward, and for the reasons stated above, the Chair concludes that it was procedurally acceptable for the House to use an order and not an address to require the production of these documents.

The Chair will now turn to the allegations related to witness intimidation. The member for Scarborough—Rouge River has contended that the comments made by the Minister of National Defence in reply to a question during oral questions on December 1, 2009, amounted to intimidation. He argued that the minister's contention that the documents in question could be released to the Special Committee on the Canadian Mission in Afghanistan only under the provisions of the Canada Evidence Act was wrong and misleading, obstructed the House and intimidated witnesses, especially armed forces personnel and public servants, thereby lessening the likelihood of their compliance with House requests and orders.

The hon. member for Scarborough—Rouge River also took exception to a December 9, 2009, letter to the Law Clerk and Parliamentary Counsel of the House from an Assistant Deputy Minister from the Department of Justice on the obligations of witnesses before committees, and on the obligation to provide documents ordered by committees. He argued that the letter constituted a contempt of the House by setting out for witnesses a false basis for refusing to provide disclosure to the House or its committees after being ordered to do so. In particular, the member for Scarborough—Rouge River stressed that if the contents of the letter were crafted with ministerial approval, it could constitute a conspiracy to undermine Parliament and the ability of the House to carry on its constitutional functions.

The government responded that the remarks made by the Minister of National Defence were simply matters of debate and differences of opinion between members. Of the second complaint, the government took the view that the letter from the justice official constituted nothing more than an exchange of views between legal professionals and it could not be construed as “an attempt to intimidate the government witnesses”.

The hon. member for Scarborough—Rouge River had argued that the minister's reply constituted a slander of Parliament's core powers to hold the government to account and thus was a contempt. However, particularly since this exchange between the minister and the member for Vancouver South occurred during question period, I find that I must agree with the parliamentary secretary's characterization of this exchange as a matter of debate.

I have no need to remind the House that freedom of speech is one of our most cherished rights. Although members may disagree with the comments made by the minister, I cannot find that the minister's words in and of themselves constitute witness intimidation, hence nor do they constitute a prima facie contempt of the House.

As for the member for Scarborough—Rouge River's other concern regarding the letter from the assistant deputy minister, the procedural authorities are clear that interference with witnesses may constitute a contempt. House of Commons Procedure and Practice, Second Edition, at page 1070, states: “Tampering with a witness or in any way attempting to deter a witness from giving evidence may constitute a breach of parliamentary privilege.”

It is reasonable to assume that a letter signed by an assistant deputy minister, acting under the authority of the Minister of Justice, is an expression of the government’s view on an issue, and given that its contents have been widely reported and circulated, the letter could leave the impression that public servants and government officials cannot be protected by Parliament for their responses to questions at a parliamentary committee, when this is not the case.

Specifically, I would like to draw to the attention of hon. members the section of the letter in question, which the member for Scarborough—Rouge River tabled in the House on March 18, 2010, where the assistant deputy minister lays out a view of the duties of public servants in relation to committees of the House. The letter states:

Of course, there may be instances where an Act of Parliament will not be interpreted to apply to the Houses of Parliament (or their committees). However, that does not mean automatically that government officials—who are agents of the executive, not the legislative branch—are absolved from respecting duties imposed by a statute enacted by Parliament, or by requirements of the common law, such as solicitor-client privilege or Crown privilege.

This is so even if a parliamentary committee, through the exercise of parliamentary privilege, may extend immunity to witnesses appearing before it. A parliamentary committee cannot waive a legal duty imposed on government officials. To argue to the contrary would be inimical to the principles of the rule of law and parliamentary sovereignty. A parliamentary committee is subordinate, not superior, to the legislative will of Parliament as expressed in its enactments.

It does concern me that the letter of the assistant deputy minister could be interpreted as having a “chilling effect” on public servants who are called to appear before parliamentary committees, as contended the members for Scarborough—Rouge River and Toronto Centre. This could be especially so if the view put forth in the letter formed the basis of a direction given by department heads to their employees who have been called to testify before parliamentary committees.

At the same time, it is critically important to remember in this regard that our practice already recognizes that public servants appearing as witnesses are placed in the peculiar position of having two duties. As House of Commons Procedure and Practice, Second Edition, states at pages 1068 and 1069:

“Particular attention is paid to the questioning of public servants. The obligation of a witness to answer all questions put by the committee must be balanced against the role that public servants play in providing confidential advice to their Ministers. ...In addition, committees ordinarily accept the reasons that a public servant gives for declining to answer a specific question or series of questions which....may be perceived as a conflict with the witness’ responsibility to the Minister....”

The solution for committees facing such situations is to seek answers from those who are ultimately accountable, namely, the ministers themselves.

It has been argued that there may be a chilling effect, which could come dangerously close to impeding members of committees in carrying out their duties; however, I remind the House that this letter was sent to our Law Clerk, so on balance, I would need to see the use made of this letter, in particular whether it was ever presented to a person who was scheduled to testify before the special committee with the intent of limiting the person's testimony.

As things stand, there does not appear to the Chair to be sufficient evidence for me to conclude that this letter constitutes a direct attempt to prevent or influence the testimony of any witness before a committee, and for these reasons, I cannot find that there is a prima facie question of contempt on this point.

I now turn to the questions of the House's right to order the production of documents and the claim that the government has failed to comply with the order of the House.

The hon. member for Kootenay--Columbia argued that even if the documents were provided to the committee, the committee could not, given their sensitive nature, make use of them publicly. However, I cannot agree with his conclusion that this obviates the government's requirement to provide the documents ordered by the House. To accept such a notion would completely undermine the importance of the role of parliamentarians in holding the government to account.

Before us are issues that question the very foundations upon which our parliamentary system is built. In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and in fact an obligation.

Embedded in our Constitution, parliamentary law and even in our Standing Orders, it is the source of our parliamentary system for which other processes and principles necessarily flow, and it is why that right is manifested in numerous procedures of the House, from the daily question period to the detailed examination by committees of estimates, to reviews of the accounts of Canada, to debate, amendments, and votes on legislation.

As I noted on December 10, 2009, House of Commons Procedure and Practice, Second Edition, states at page 136:

By virtue of the Preamble and section 18 of the Constitution Act, 1867, Parliament has the ability to institute its own inquiries, to require the attendance of witnesses and to order the production of documents, rights which are fundamental to its proper functioning. These rights are as old as Parliament itself.

And on pages 978 to 979:

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 type 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....

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

Further, at page 70, Bourinot's 4th edition states:

The Senate and House of Commons have the right, inherent in them as legislative bodies, to summon and compel the attendance of all persons, within the limits of their jurisdiction, as witnesses, and to order them to bring with them such papers and records as may be required for the purpose of an inquiry.

In the arguments presented, the Chair has heard this power described as unabridged, unconditional, unqualified, absolute and, furthermore, one which is limited only by the discretion of the House itself. However, this view is not shared by all and so it is a privilege whose limits have now been called into question.

The government's view is that such an unqualified right does not exist for either House of Parliament or their committees. The executive, the holder of the sensitive information sought by the House, has competing obligations. On the one hand, it recognizes that there is an expectation of transparency so that government actions can be properly monitored to ensure that they respect the law and international agreements. On the other hand, the government contends that the protection of national security, national defence and international relations demand that some information remain secret and confidential, out of the reach of those obliged to scrutinize its actions and hold it to account.

In his March 31 intervention, the Minister of Justice quoted from the 1887 parliamentary treatise of Alpheus Todd to support the view that “a due regard to the interests of the State, occasionally demand...that information sought for by members of the legislature should be withheld, at the discretion and upon the general responsibility of ministers”.

The minister also cited Bourinot in 1884, observing that the government may “feel constrained to refuse certain papers on the ground that their production would be...injurious to the public interest”. Had he read a little further, he might have found the following statement by Bourinot at page 281:

But it must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses.

As the members for Saint-Jean and Joliette commented on March 25, 2010, Bourinot’s Second Edition notes that even in instances where a minister refuses to provide documents that are requested, it is clear that it is still ultimately up to the House to determine whether grounds exist to withhold documents.

Bourinot, in referring to procedures for notices of motions for production of papers, wrote at pages 337 and 338:

Consequently, there are frequent cases in which the ministers refuse information, especially at some delicate stage of an investigation or negotiation; and in such instances the house will always acquiesce when sufficient reasons are given for the refusal...But it must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient.

Joseph Maingot’s Parliamentary Privilege in Canada, Second Edition, also supports the need for Parliament to have a voice in these very matters when it states at page 190:

The only limitations, which could only be self-imposed, would be that any inquiry should relate to a subject within the legislative competence of Parliament, particularly where witnesses and documents are required and the penal jurisdiction of Parliament is contemplated. This dovetails with the right of each House of Parliament to summon and compel the attendance of all persons within the limits of their jurisdictions.

Similarly, in Erskine May, 23rd edition, in a discussion of the exclusive cognizance of proceedings at page 102, we find the following:

...underlying the Bill of Rights [1689] is the privilege of both Houses to the exclusive cognizance of their own proceedings. 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 whether (like a bill) it is the joint concern of both Houses.

In David McGee's Parliamentary Practice in New Zealand, second edition, at page 621 he asserts, “The Australian legislation”, referring to the Parliamentary Privileges Act, 1987, “in respect of article 9 of the Bill of Rights...may be taken to indicate the types of transactions falling within the term 'proceedings of Parliament'”

He then goes on to state that such proceedings to which privilege attaches include “...the presentation of a document to a House or a committee...”.

Odgers' Australian Senate Practice, 12th edition, at page 51 states clearly:

Parliamentary privilege is not affected by provisions in statutes which prohibit in general terms the disclosure of categories of information....

Statutory provisions of this type do not prevent the disclosure of information covered by the provisions to a House of the Parliament or to a parliamentary committee in the course of a parliamentary inquiry.... They...do not prevent committees seeking the information covered by such provisions or persons who have that information providing it to committees.

In light of these various authorities, the Chair must conclude that the House does indeed have the right to ask for the documents listed in the order of December 10, 2009.

With regard to the extent of the right, the Chair would like to address the contention of the Minister of Justice, made on March 31, that the order of the House of December 10 is a breach of the constitutional separation of powers between the executive and the legislature.

Having noted that the three branches of government must respect the legitimate sphere of activity of the others, the minister argued that the order of the House was tantamount to an unlawful extension of the House's privileges. This can only be true if one agrees with the notion that the House's power to order the production of documents is not absolute. The question would then be whether this interpretation subjugates the legislature to the executive.

It is the view of the Chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would in fact jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts. Furthermore, it risks diminishing the inherent privileges of the House and its members, which have been earned and must be safeguarded.

As has been noted earlier, procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of government documents, even those related to national security.

Therefore, the Chair must conclude that it is perfectly within the existing privileges of the House to order production of the documents in question. Bearing in mind that the fundamental role of Parliament is to hold the government to account, as the servant of the House and the protector of its privileges, I cannot agree with the government's interpretation that ordering these documents transgresses the separation of powers and interferes with the spheres of activity of the executive branch.

But what of the House’s responsibility regarding the manner in which this right can or ought to be exercised? The authorities cited earlier all make reference to the long-standing practice whereby the House has accepted that not all documents demanded ought to be made available in cases where the Government asserts that this is impossible or inappropriate for reasons of national security, national defence or international relations.

O’Brien and Bosc, at page 979, states: “—it may not be appropriate to insist on the production of papers and records in all cases.”

The basis for this statement is a 1991 report by the Standing Committee on Privileges and Elections, which, as recorded on page 95 of the Journals of May 29, 1991, pointed out:

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.

In his comments on this aspect of the matter before us, the Parliamentary Secretary to the Leader of the Government in the House of Commons referred to my ruling of June 8, 2006, where I stated that national security, when asserted by a minister, was sufficient to set aside a requirement to table documents cited in debate. The examples cited by the parliamentary secretary related strictly to documents that have been cited by a minister in the absence of any other explicit expression of interest by the House in the said documents.

Having reviewed the June 8 ruling, it is clear to the Chair that there is a difference between the practice of the House which allows a minister, on the sole basis of his or her judgment, to refrain from tabling a cited document for reasons of confidentiality and national security, and an order, duly adopted by the House following notice and debate, requiring the tabling of documents.

Another important distinction between the order adopted by the House on December 10, 2009, and the practice respecting notices of motions for the production of papers, referred to by the member for St. John's East on April 12 is that, with respect to such notices, there is an opportunity for a minister or parliamentary secretary to indicate to the House that the notice is acceptable to the government subject to certain reservations, such as confidentiality, or national security.

Thus the House, prior to the adoption of the motion, is fully aware that some documents will not be produced if the motion is adopted. If the House does not agree, the motion must either be transferred for debate or be put immediately to the House without debate or amendment.

Something similar happened on December 10, 2009. Before the House voted on the motion that became an order to produce documents, the ministers of justice, national defence and foreign affairs all rose in the House to explain the reasons why the documents in question should not be made available. This is in keeping with what Bourinot refers to as the government's responsibility to provide “reasons very cogent” for not producing documents.

Under normal circumstances, reflecting on past history in the House, these assertions by the government might well have been found to be acceptable by the House. In the current circumstances, however, the reasons given by the government were not found to be sufficient. The House debated the matter and voted to adopt an order for the production of documents despite the request of the government.

The reason for this, it seems, has to do with the issue of accommodation and trust. On December 10, 2009, as found on page 7877 of the Debates, I stated:

It is unfortunate, if I may make this comment, that arrangements were not made in committee to settle this matter there, where these requests were made and where there might have been some agreement on which documents and which format would be tabled or made available to members. How they were to be produced or however it was to be done, I do not know, but obviously that has not happened.

Several members have made the point that there are numerous ways that the documents in question could have been made available without divulging state secrets and acknowledged that all sides in the House needed to find a way to respect the privileges and rights of members of Parliament to hold the government to account, while at the same time protecting national security.

The government, for its part, has sought to find a solution to the impasse. It has appointed former Supreme Court Justice Frank Iacobucci and given him a mandate to examine the documents and to recommend to the Minister of Justice and Attorney General what could be safely disclosed to the House.

The government has argued that in mandating this review by Mr. Iacobucci, it was taking steps to comply with the order consistent with its requirements to protect the security of Canada’s armed forces and Canada’s international obligations.

However, several members have pointed out that Mr. Iacobucci's appointment establishes a separate, parallel process outside of parliamentary oversight, and without parliamentary involvement. Furthermore, and in my view perhaps most significantly, Mr. Iacobucci reports to the Minister of Justice; his client is the government.

The authorities I have cited are unanimous in the view of the House's privilege to ask for the production of papers and many go on to explain that accommodations are made between those seeking information and those in possession of it to ensure that arrangements are made in the best interests of the public they both serve.

Certainly from the submissions I have heard, it is evident to the Chair that all members take seriously the sensitive nature of these documents and the need to protect the confidential information they contain.

The Chair must conclude that it is within the powers of the House of Commons to ask for the documents sought in the December 10 order it adopted. Now it seems to me that the issue before us is this: Is it possible to put in place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain? In other words, is it possible for the two sides, working together in the best interests of the Canadians they serve, to devise a means where both their concerns are met? Surely that is not too much to hope for.

The member for Toronto Centre has made a suggestion, as recorded on page 615 of the Debates of March 18, 2010:

What we believe can be done is not beyond the ability of the House. It is done in many other parliaments. Indeed, there are circumstances under which it has even been done in this House. It is perfectly possible for unredacted documents to be seen by members of Parliament who have been sworn in for the purpose of looking at these documents.

O'Brien and Bosc, at page 980, points to ways of seeking a compromise for members to gain access to otherwise inaccessible material:

Normally, this entails putting measures in place to ensure that the record is kept confidential while it is being consulted: in camera review, limited and numbered copies, arrangements for disposing of or destroying the copies after the committee meeting, et cetera.

In some jurisdictions, such as the Legislative Council in the Australian state of New South Wales, and I would refer members to New South Wales Legislative Council Practice by Lovelock and Evans at page 481, mechanisms have been put in place, which satisfy the confidentiality concerns of the government as well as those of the legislature. Procedures provide for independent arbiters, recognized by both the executive and the legislature, to make determinations on what can be disclosed when a dispute arises over an order for the production of documents.

Finding common ground will be difficult. There have been assertions that colleagues in the House are not sufficiently trustworthy to be given confidential information, even with appropriate security safeguards in place. I find such comments troubling. The insinuation that members of Parliament cannot be trusted with the very information that they may well require to act on behalf of Canadians runs contrary to the inherent trust that Canadians have placed in their elected officials and which members require to act in their various parliamentary capacities.

The issue of trust goes in the other direction as well. Some suggestions have been made that the government has self-serving and ulterior motives for the redactions in the documents tabled. Here too, such remarks are singularly unhelpful to the aim of finding a workable accommodation and ultimately identifying mechanisms that will satisfy all actors in this matter.

But the fact remains that the House and the government have, essentially, an unbroken record of some 140 years of collaboration and accommodation in cases of this kind. It seems to me that it would be a signal failure for us to see that record shattered in the third session of the 40th Parliament because we lacked the will or the wit to find a solution to this impasse.

The House has long understood the role of the government as “defender of the realm” and its heavy responsibilities in matters of security, national defence and international relations. Similarly, the government understands the House's undoubted role as the “grand inquest of the nation” and its need for complete and accurate information in order to fulfill its duty of holding the government to account.

Examples have been cited of mechanisms that might satisfy the competing interests of both sides in this matter. In view of the grave circumstances of the current impasse, the Chair believes that the House ought to make one further effort to arrive at an interest-based solution to this thorny question.

Accordingly, on analyzing the evidence before it and the precedents, the Chair cannot but conclude that the government's failure to comply with the order of December 10, 2009, constitutes prima facie a question of privilege.

I will allow House leaders, ministers and party critics time to suggest some way of resolving the impasse, for it seems to me we would fail the institution if no resolution can be found. However, if in two weeks' time, the matter is still not resolved, the Chair will return to make a statement on the motion that will be allowed in the circumstances.

In the meantime, of course the Chair is disposed to assist the House in any way it can, and I am open to suggestions on any particular role that I as your Speaker can play.

I thank the House for its attention.

Message from the Senate
Oral Questions

April 27th, 2010 / 3:45 p.m.

Liberal

The Speaker Peter Milliken

I have the honour to inform the House that a message has been received from the Senate informing the House that the Senate has passed the following public bill, to which the concurrence of the House is desired: Bill S-210, An Act to amend the Federal Sustainable Development Act and the Auditor General Act (involvement of Parliament).

The House resumed from April 26 consideration of the motion that Bill C-11, An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act, be read the second time and referred to a committee.

Balanced Refugee Reform Act
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3:45 p.m.

NDP

Libby Davies Vancouver East, BC

Mr. Speaker, I rise on a point of order. Because of what happened, we did not quite catch what you just said in terms of the bill being debated. Would you mind repeating that, please?

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3:45 p.m.

Liberal

The Speaker Peter Milliken

I was calling for debate. We are ready to start a new speech on Bill C-11.

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3:45 p.m.

NDP

Libby Davies Vancouver East, BC

Mr. Speaker, could you clarify why we are not returning to routine proceedings? We were at motions, but we had not yet gotten to petitions. Are we to go back to petitions before we go back to Bill C-11?

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3:45 p.m.

Liberal

The Speaker Peter Milliken

I am sure the hon. member for Vancouver East knows that when the whole morning is expended on that, we go straight to government orders after question period. We are now in government orders discussing Bill C-11. We will have to wait for petitions and answers to questions tomorrow, difficult as that may be.

Resuming debate with the hon. member for Parkdale—High Park.

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3:50 p.m.

Liberal

Gerard Kennedy Parkdale—High Park, ON

Mr. Speaker, I am very pleased to speak to this debate on refugee status in Canada.

We have in front of us a very fundamental bill, a bill that is not just about how we treat refugees but how we consider ourselves.

I want to say at the outset that we want to see the backlog dealt with, we want to see a way of reducing the number of people who make claims that are not accurate or false and we want to see fairness and speed put into the system. However, there are fundamental questions.

Is this a reform bill? Does it ensure fairness and balance?

The fundamental thing that we need to arrive at as a Parliament, and as a committee when it gets there, is whether the government is engaged in fairness and balance in reform, or whether it is just mining a weariness on the part of Canadians and cultivating the wrong idea about who is taking advantage. Is this a bill that can move forward when it is admittedly something of an intractable problem over some period of time, or is it simply a cover for lack of effectiveness on the part of the minister and on the part of the government?

For example, the crux of the bill is to contend with the backlog of refugees claiming the protection of Canada and yet the government has allowed compassion to be denied because it has been so delayed. This has caused thousands of people to have a shadowy existence in our communities, with no real status and trying to find a resolution to how they are being regarded.

Two-thirds of the current backlog of refugees comes from the government's action and inaction. When we look at the presumption that somehow we need a law to change things, we also need a government that is committed to treating people fairly, equitably and in a manner that actually respects their rights. Currently, 60,000 are waiting for that treatment and 40,000 of them were put there by the government and by the minister. It is very important that people understand that in some ways we need to evaluate that. The government was busy replacing every appointee of the previous government, no matter how qualified, with its own highly partisan replacement. We need to ask ourselves why else the government was taking its time. Was it trying, as some of its ideological colleagues have done in other jurisdictions, to create a crisis that would then be stampeded into having to be reckoned with?

What is worrisome is that the government's behaviour today belies some of the goodwill that it says it wants to generate in the House and in subsequent considerations at committee. It is worrisome that the government has, at different times, taken sweeping aim at anybody who has disagreed with the bill, trying to discredit the dialogue and the opposition on it. The government is limiting debate. It is forcing it to second reading and not considering hearings after first reading. The test will be how it behaves from here on in, because there are fundamental issues at root here on which Canadians need to be heard. They need not to have this debate put on artificial timetables. I just want to outline some of those for the House and for the people who will, I believe, pay fundamental attention when they realize exactly what is at stake.

We need to step back and realize that the whole idea of acknowledging refugees is based on their individual claims. In the name of convenience, in order to get rid of some of the problems in processing, the bill would take that away from whole groups of people. Refugees would no longer be considered by Canada for protection on their individual merit, but rather governed in large part from what country they came from. That has huge ramifications for legitimate people claiming and needing the protection of Canada.

Instead of actually finding a better way to run the system, the government is proposing a shortcut and one that short-circuits the consideration for people in terms of the fundamental reason they are appealing to us. The bill could cause thousands upon thousands of people to end up going underground because it would not give them the consideration they are looking for.

In the bill there is a tremendous tendency to give arbitrary powers to the minister to create something called a safe country. It is not referred to in the bill. There is no definition of what is safe. There is no definition about how we would find out whether that country was safe or not. Even in democratic states, it does not consider what could happen to certain minorities that are being subject to persecution. The minister only would have a say, with no check or balance, because the government wants to avoid the determination of a country of risk to be something that could be appealed.

In the context of doing that, it would set it outside of the reach of anyone. Neither the courts nor this House, no one could comment on the designation of countries. That is a first time event as a way of dealing things and it smacks of convenience, not of a real goodwill effort to try to deal with the problem. The arbitrariness that could happen there would undermine the reason to have the system in the first place.

I would put forward, for example, Gustavo Gutierrez, a police chief from Mexico who has a well-founded threat of prosecution and who has difficulty being heard. Even under the current system, Mexico, presumably, would be declared a safe country of origin and he would not even get a hearing. He comes from a state where nine police chiefs have been killed.

Mr. Gutierrez has been trying to uphold the law in parts of Mexico, where the law has become almost impossible to uphold, in the face of some of the anarchy that is happening either by organized crime or by the misplaced efforts of states to deal with things, and the gross violations of human rights that have been well-documented. This House will get a chance to consider some of these as we bring some of these people forward.

I want to touch on some of the specific provisions.

In terms of getting a hearing, it would be terrific if it could be done in eight days and it could meet the test of fairness but the people coming forward would not have any access to counsel. Somebody who manages to come here from a country like Iran or some other place where he or she has been tortured in a prison will need to deal with his or her own case within eight days and go in front of an official who is only responsible to the minister who devised the system. This certainly has to ring alarm bells for people concerned with justice and a fair process.

Those who were listening closely to the speech given by my colleague from Vaughn would have heard a very clear articulation of what happened in the United Kingdom when it did this very thing, when it made the front line response come from bureaucrats. Tens of thousands of cases ended up going to appeal and 23% of those cases, almost one-quarter of them, were upheld at appeal.

The appeal rate at the court of appeal in Canada is only 1% successful. Our courts will be plugged the way the courts are plugged in the United Kingdom. The United Kingdom has an 18 year backlog as a result of adopting a system very similar to the one that the Conservative government is bringing forward.

It is at least worth asking these fundamental questions here in the House and in committee. The minister himself cited in his speech that we have made mistakes in the past, that we have refused people who should have been able to come to Canada. In the run up to World War II, entire groups of people were turned away.

We know the problem with labelling people a certain way and then not accepting them. This House should not repeat that mistake. We need to fix the system, not because we will get a pat on the back from weary people out there who want the so-called refugee system fixed, but because people in here will stand on principle, roll up their sleeves and do the hard work. We need to ensure that this House does not become the House that does a sloppy repair to a system that needs attention.

When people ask why this did not get fixed, I think everyone in this House and everybody watching knows the answer. It is because refugees are perhaps the most powerless group in this country. They are not able to articulate for themselves. If we do not do this carefully, prudently and in alignment with principles, they will get left out of this equation.

This is not about the convenience of the rest of us. The character of a country, the character of a political party and, indeed, the character of all of us in public life is told by how we attend to the quiet noises, to the things that happen when no one is paying attention.

I would like to think that Mr. Gutierrez and others can depend on us to bring forward significant amendments to this bill or to not bring this bill all the way through the House. We stand at the precipice of getting rid of individual assessments and denying people on humanitarian and compassionate grounds.

I can see the genesis of this bill. Some may look at how many people make claims but we must understand that when people make a refugee claim, they need to make a choice. Will they have a chance under that system? Will they have a chance on humanitarian or compassionate grounds? Under this bill we would have to make that an absolute choice. People would not be able to appeal on humanitarian or compassionate grounds if their refugee claim was rejected even though there are different considerations there. Even if they make the choice for door number two and take humanitarian or compassionate grounds, they could be deported from this country before their case is heard. Under the present government, it takes over three and a half years to hear from people with legitimate humanitarian or compassionate claims.

If this is a sincere effort to reform the system, where is the reform of the people who are the middlemen, the false arbiters of hope who are making huge amounts of money here in Canada and in places abroad by bringing people here to abuse the system? Where is the effort to actually focus on where people are coming from in the first place? Rather than trying to arbitrarily label people for our convenience, why are we not trying to fix the system?

If we are being frank in this House, what is happening with the changes to the IRB, a politicized system? By the minister's own admission, that system held up at least 25,000 applicants because of delays he created by hand-picking his own partisan cronies to sit on the actual panels. There is an ideological bent that is discernible.

The Colombia free trade agreement has been discussed in the House and suddenly all claimants from Colombia are having tremendous difficulty.

We need to fix this. There need to be independents sitting in front of people. We are conveying a chance to be part of this wonderful country and we dishonour that if we do not do that in full, good faith. We need to do that with people who have no other answerability, no other accountability than doing a good, fair and just job.

That cannot happen if the bureaucrats are responsible to the minister. For my money, it cannot happen by appointed people whose only pleasure is whether or not they keep the minister in power happy with their performance.

There needs to be a turn taken. We should use the bill to reform that system. I ask the question, why in the House, and we need to repeat it again in committee, are we not taking on the people who bring people to Canada, who instruct them and counsel them falsely to break the rules? Why are there no penalties for that in the bill? We want to avoid visas for innocent people. We should be looking at systems that bring people to us rather than just reacting. The bill only gives us the capacity to react.

There are things in the bill that we do need. There does need to be an appeal process. We need to relieve some of our court system by getting a fair appeal process in place, but that is going to be denied to a very large number of people who will be screened out. They will be screened out on criteria that do not exist in the bill. They will be the criteria determined by the minister of the day who will have imperfect information.

I challenge the members opposite. Let Amnesty International, let the United Nations Convention on the Rights of Refugees, let someone objective set those labels if they must have them for those countries, but do not have it as part of our diplomacy or our economic relations because Canada's standing, which the minister relied on as part of his moral authority bringing the bill in, will be lost.

We may accept 10,000 or 11,000 people a year, but we cannot just do that where it is convenient for us. Human rights is not necessarily convenient and many of us are here because of our heritage, a million people who were accepted as refugees in this country. The only way to honour that heritage is to create a bill and amendments to this bill that are really going to follow the footsteps of what has gone on before.

This has been framed with the idea that there will be new quotas, that there will be an increase in the number of people who will be welcome. That is a chimera off in the distance. It is not to be found in the bill. The idea that we are going to accept additional people is nowhere to be found.

In the 2010 budget there is no extra money. So the minister has committed in the House that he would be fixing the backlog in tandem with these new rules, but he does not have the fiscal ability to fulfill that promise.

On the government side, it really bespeaks a certain kind of challenge for the public and for people everywhere in terms of being able to believe that this is a goodwill real reform, or fairness and balance in the system. Or is it just something the government wants to make it look like it is being tough on, a certain class of immigrants who cannot speak for themselves, for whom every person elected to this place has a special responsibility, not because they can vote for us but because they cannot, not because they can donate to us but because they do not have a lot of means.

We cannot fail the people who have gone before us and create a mess of a system simply because we did not meet the challenge of having it better run. A government that let the backlog triple should come to the House with humility. What it needs is some assistance. It needs the best ideas to come forward from those who are housing, sheltering and representing real refugees in this country. It needs to hear about the systems of deceit that are out there, counselling, aiding, abetting and scalping people who have gone through tremendous trauma of their resources or bringing people in to make false claims under false assumptions.

That is what should be targeted here. It is not to be found in the bill and I wonder why not. Why can we not take on the shady consultants? Why can we not take on the people who are mocking the compassion of Canada? Why do we not protect Canada's compassion before it wears out rather than trade on it for changes that on the face do not seem to really go to the root of where this problem has come from: not having enough people in place, not having enough resources, and ultimately not sending the right signals out to countries of origin where people are coming from.

There are even in countries that we respect and admire exceptions for humanitarian and compassionate grounds and even people who can be persecuted for their status, whether as women or sexual minorities. Those things need to be considered because they are part of our values: to have as broad as possible a tolerance for people and to accept that as a basis for being able to be here. There are different definitions for that, that need to be entertained, and a one size fits all which could come with some of the provisions of the bill would really give us difficulty.

The minister, in his remarks, stated that we would not be increasing detention, which happens in a lot of other countries that have this system. It is not in the bill, but his sticker promise is a 60-day turnaround for hearings. How, but through detention, will he be keeping track of people for that period of time?

We need clear talk on the part of the government. Is it planning to put tens of thousands of refugees in some form of detention centres on their way to these streamlined hearings? That is the experience of other countries and it is what happens when they artificially and conveniently try to manage this flow of people instead of trying to understand it and finding principled ways to separate it.

If we had the right of counsel at the beginning, answerable to independent people, that would be a means to have a trustworthy way of weeding out good and bad cases, or at least understanding that the people who are applying have their documentation in order and they are not surrendering rights, which will be applied for anyway.

Why should we be passing this on to the much more expensive system of the courts? Why should we be putting people through the vagaries of that kind of process, when we could be fixing it right here, in this House, in committee?

There are people out there who are discouraged by the manner in which the government has come forward, that there has not been a real openness to listen. The Canadian Bar Association refugee lawyers and Amnesty International issued a statement today saying how disappointed they were that they are not going to get a chance to get at, what again I started my remarks with, which are the principles underlying this, because once we go to second reading, we are not able to discuss the principles of the bill. I would say that the principles of this bill are either very hard to find or they are founded on a skewed idea of why we have this welcome system in the first place.

We need to accept proper refugees. We need to not have the system be clouded and corrupted by false claims, but to do that, there needs to be a system of management.

We need a welcome system that respects the rights of all citizens, but first we must establish the targets of this program.

We have to have the refugee in mind because this is not a group of people who will otherwise be present in this place. We need a time for reflection that need not get in the way of this longstanding problem being resolved, but we cannot rush this and feel like this place is functioning the way it should. There are certain matters that need delicate handling.

Most of us do not come from backgrounds of people who have been persecuted. Most of us do not understand what it is like to be part of 10.5 million real, genuine refugees worldwide. The fact that we are taking on 10,000 of them should be a credit to us. If we end up excluding people, as we have, whether it was inadvertently due to a misunderstanding or a social conception that we did not come to terms with in the past, as we did with Jews trying to get admitted to the country before the second world war, as we did with Sikhs seeking refuge from India, as we did with other people, then we will not give honour to this place or to the values that are supposed to be reflected in this bill in the first place.

My challenge to the government is not to accept any blame but to rise to what is required here, an openness, an unlimited number of hearings in the sense of not being artificially restricted, a reasonable amount of time for Canadians to be heard on this, for the refugees themselves to be heard, and for us to deal with this complex matter in a way that brings honour to ourselves but also to the courage of the people that we want to admit as new Canadians.

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4:10 p.m.

NDP

Charlie Angus Timmins—James Bay, ON

Mr. Speaker, one of the key elements concerning me about this new refugee bill and what is missing in it is that when we look at the refugee boards, those are life and death decisions that are being made and if they are being made incorrectly, the damage obviously to the families who go before them will be very serious.

I am concerned about the issue of how these people are chosen because we know that one of the key elements of the Federal Accountability Act was that the government was going to put in place a commissioner for appointments, so that we would not just have party pals, party volunteers, party bagmen and party hacks put into these positions. We see that the Conservatives love putting their pals in everything from the Senate all the way down to all kinds of appointment boards, yet it has failed to bring in this element.

I would ask my colleague, does he agree with me that when it comes to the refugee boards, we need to have people who are chosen because they understand the issues, because they are not simply going to be doing political favours for the government, and whether or not we need to push the government to have independent people chosen and not just political appointees?

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4:10 p.m.

Liberal

Gerard Kennedy Parkdale—High Park, ON

Mr. Speaker, the short answer would be, yes. There was the work done by the hon. member for York West in terms of setting up criteria and screening to ensure that people would be not just credible but trained and effective at doing this. I spoke to someone at a refugee hearing this afternoon, though, and this individual is fundamentally discouraged that we are not getting the trained and qualified people sitting at the IRB.

Again, this is a moral equation. These people need to be able to represent us in a knowledgeable and thorough way. This is our discretion being exercised. That has to be paramount. I think a further, complete degree of independence should be in this bill. I would join my colleague and others in the House to entertain that as the kind of amendment that we can bring forward to make this a workable reform.

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4:10 p.m.

Calgary Southeast
Alberta

Conservative

Jason Kenney Minister of Citizenship

Mr. Speaker, I am sorry to have missed the member's speech. I was not aware that we were up on debate this afternoon, but I appreciated his comments. I will review them closely.

I have a couple of quick remarks in response to the previous intervention. In point of fact, the previous government introduced a screening process that was improved by the current government. The member might be interested to know that all those people who apply for membership on the IRB go through a rigorous pre-screening process in an independent committee at the IRB before they are recommended to the minister. Only one out of every 10 candidates who apply for the IRB are recommended to the minister, without any consideration of their political background.

According to the official opposition research bureau, of the 99 people who I have appointed or recommended for appointment or reappointment to the IRB, all of whom went through that objective process, I think that five had ever given a contribution or been remotely associated with the Conservative Party. That is fewer than 5% of the appointments for a party that has the support of 30% to 40% of Canadians.

I think we have depoliticized the process. We depoliticize it even further by appointing highly trained, independent public servants situated at the IRB, like at the immigration division of the IRB, that will be making the decisions at the refugee protection division.

I just wanted to make one comment quickly with respect to a remark made by the member for Parkdale—High Park. He suggested that we are now on the precipice of the end of individual assessments in the reforms that we are proposing.

Nothing could be further from the truth. Every single decision made under the proposed reforms would be on the individual merits of the claim before an independent decision maker at the independent quasi-judicial IRB, at an oral hearing considering the merits and credibility and the evidence that is tabled, with access to the new appeal division that was never brought in by the previous Liberal government.

I have appreciated the co-operation of my official opposition critic, but the member for Parkdale—High Park was a member of a party that refused to bring in the appeal division that we are now proposing. Not only does this meet our domestic and international legal obligations, but it actually exceeds them. This is a very important debate, so we should be responsible and stick to the facts. There is nothing in this bill, including the country of origin designation, that would in any way prejudice the consideration of a case on its individual merits.

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4:15 p.m.

Liberal

Gerard Kennedy Parkdale—High Park, ON

Mr. Speaker, I would hope that the minister would agree, on reflection, that it all depends who is hearing from individuals on whether they are really getting individual consideration, if there is no right to counsel, if there is inadequate time to prepare their case, if there is not a way to express themselves or to be considered because their country of origin denied them the right to appeal, or if they really should have been a humanitarian and compassionate case, but they will not get that for a year.

These have the possibility and the high prospect of being arbitrary decisions that take away the individual assessment to the degree that it exists today. There is a harder road to go, but I am glad to hear the minister say that he is claiming this high value of independence. I want to take that at face value because that means that he would be open to amendments that would make the IRB thoroughly independent and out of the reach of political parties.

That is the kind of thing that would begin to shape the building blocks of trust for this. This should not be subject to only partisan consideration. It should be one where the merits are clear and conspicuous. In terms of who will get to hear the hearings, he has to reflect on the experience of Great Britain in terms of clogging up the appeal process. When we are simply hearing from front line bureaucracy, there is a prospect of trying to please the minister that then turns out to foster a huge number of appeals.

That is not the kind of reform that would be fair or equitable or would address what we want to accept. If the minister wants to see things fair and fast, he needs to slow down only long enough to ensure that these things will actually work. I think it is encouraging if the minister is at least acknowledging that he would be open to making some of those fundamental changes.

For my part, I am happy to be open to see it proven. I think the questions I am raising are all legitimate, but I would welcome the changes that I have talked about and would laud them from the minister.

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4:15 p.m.

NDP

Jim Maloway Elmwood—Transcona, MB

Mr. Speaker, I was essentially going to comment that I sat through all of the speeches yesterday. I know the minister was here, which was a bit of a surprise and certainly welcomed. He was complimented in the House many times yesterday for being here. In fact, he took the first question with all of the speakers.

There were some points in the member's speech that I wanted to clarify in light of what the minister said yesterday, but I am certain that he can clarify them for the member by perusing Hansard.

The whole issue of the safe country of origin is also a concern to our critic, and we talked about that yesterday. The minister was straight up front in saying that he welcomed amendments to the bill at committee and that even in the area of safe country of origin, there were aspects to that particular mechanism that perhaps should be explored a little bit further. That certainly could be done at committee. If the two members talk to each other, the member will get some of his questions answered.

He is blaming the backlog exclusively on the government, but it was reported yesterday by several speakers that in fact 20,000 people were in the line under the previous Liberal government, so we have to get a balance here. It is unfair to say the Conservatives are 100% responsible. The Liberals should take their fair share of responsibility for the current situation, and I want to leave it at that.