Mr. Speaker, I am rising on the notice of a question of privilege that I provided the table with following the tabling of the 17th report from the Standing Committee on Government Operations.
At the outset, I want to note that the government operations committee is actually meeting this afternoon, so our colleagues who sit on the committee may wish to address this with the House tomorrow or possibly Friday.
Last week, Kristian Firth, the co-founder of GC Strategies, a two-person IT firm that does no actual work, finally appeared before the government operations committee to answer for his role and his company's role at the heart of the Liberal government's arrive scam.
The House is well familiar already with the Auditor General's damning report of this procurement fiasco. Other investigations have been popping up left, right and centre by other officers of Parliament, including possibly the Royal Canadian Mounted Police. I believe that Bill Curry of The Globe and Mail pegged it at 12 active investigations.
Parliamentarians had questions for Mr. Firth and his partner, Darren Anthony, who had long resisted appearing before committee. That is why the committee, in its 14th report, had asked for a House order to compel their appearances before the committee, backstopped by the authorization of a Speaker's warrant to take them into custody if necessary, and the House unanimously concurred in that report the same day it was tabled.
As I said, Mr. Firth appeared to answer questions, but “answers” are not how I would describe what he gave. That is why, at the conclusion of his appearance last Wednesday, the government operations committee unanimously and without debate adopted a Conservative motion to present a report to the House, “outlining the potential breach of privilege concerning Kristian Firth’s refusal to answer those questions which the Committee agreed to put to him and his prevarication in answering others.”
The area of greatest concern that I want to highlight was Mr. Firth's refusal to say which public office holders he communicated with concerning the crafting of a so-called competitive contract with the Canada Border Services Agency. The House will recall that the Auditor General found, at paragraph 1.56 of her ArriveCAN audit that GC Strategies was involved in developing the requirements set out in the agency's request for proposal. Naturally, parliamentarians wanted to know who spoke with him.
Mr. Firth, however, stonewalled several members, including me, with repeated refusals to answer those questions directed to him, citing an RCMP investigation. When he was pressed on whether he understood the imperative nature of answering questions at committee, he again refused to answer, citing solicitor-client privilege.
On other occasions, in response to other questions asked of him, the witness offered evasive responses, a concept referred to in some procedural texts as “prevaricating”, something which I will elaborate upon in a few moments.
I would draw your attention to a handful of exchanges in committee with Mr. Firth as examples.
I asked whether Mr. Firth had lied to a parliamentary committee before. Mr. Firth answered by saying, “watch my previous testimony.” I also asked which public office holders Mr. Firth had met outside of government offices. Mr. Firth answered, “I'm more than happy to provide that information in writing, but I'm not prepared to do that right now, televised.”
The hon. member for Sherwood Park—Fort Saskatchewan asked Mr. Firth how many hours he spent sending LinkedIn invitations, a key component of GC Strategies' apparent recruitment strategy, and Mr. Firth answered, “That has no bearing on this project, does it?”
The hon. member for Carlton Trail—Eagle Creek asked Mr. Firth to name his contacts in the various departments which provided GC Strategies with 134 contracts. Mr. Firth answered, “I'd like to provide all of those details after this meeting, please. I would not like to speak about it publicly, just with how this committee is going.”
I asked Mr. Firth to name the individuals who allegedly provided the glowing testimonials which appear on GC Strategies' website. Mr. Firth answered, “I do know the answer.” He then said that he would provide it “after this meeting”.
As an aside, I believe that the committee is still waiting on Mr. Firth to make good on some of those undertakings, undertakings that he had promised the committee he would answer by 9 a.m. the following morning. The government operations committee might have more to report on that in due course.
I will also add that there are concerns about the truthfulness of some of the testimony from Mr. Firth and other witnesses throughout the course of this committee's study. However, that may well be a matter for yet another future report from the committee. For today's purposes, we are of course concerned with Mr. Firth's refusal to answer questions and his evasiveness on others.
Mr. Speaker, your predecessor ruled, on May 11, 2021, at page 7021 of Debates, about the role of committees in questions of privilege concerning the evidence of witnesses. He stated:
There is no precedent where the Chair has used testimony from a committee without there being a report on the subject.
This aspect of the matter is a concern for the Chair. It is not for the Speaker to untangle the committee evidence to determine who knew what and when. Such an initiative would trespass on the role of committee members and constitute a breach of my duty to act with impartiality. It is up to the committee to continue its own study and to inform the House of its conclusions, if it deems it appropriate, as has been the tradition.
The government operations committee has done its work. It has informed the House of its conclusion that Mr. Firth obstructed it, through his refusal to answer questions and providing prevaricating responses.
House of Commons Procedure and Practice, third edition, at page 82, borrowing from a list of established contempts laid out in a 1999 report of the United Kingdom Parliament's Joint Committee on Parliamentary Privilege, enumerates established areas of contempt, including, “without reasonable excuse, refusing to answer a question or provide information” and “engaging in other misconduct in the presence of, the House or a committee”.
On August 12, 1947, the United Kingdom House of Commons resolved:
That the refusal of a witness before a Select Committee to answer any question which may be put to him is a contempt of this House and an infraction of the undoubted right of this House to conduct any inquiry which may be necessary in the public interest.
Parliamentary Privilege in Canada, second edition, explains, at page 191:
A committee is not restricted in the scope of questions it can pose and a witness must answer all questions put to him, subject only to a point of order by a member of the committee that the question should not be permitted, and with an ultimate appeal of the chairman's ruling to the committee.
Beauchesne's Rules and Forms of the House of Commons of Canada, sixth edition, adds, at citation 863:
A witness who is unwilling to answer a question, after stating the reason for desiring to be excused from answering, may appeal to the Chair whether in the circumstances, for the reason stated, an answer should be given.
If you consult the transcript of last Wednesday's meeting of the government operations committee, Mr. Speaker, you will see several instances where the chair was asked, without any objection from the committee, to direct Mr. Firth, on behalf of the committee, to answer the questions. Certainly, no members objected to the questions that were asked.
The chair, having heard the reasons offered by Mr. Firth, nonetheless directed him to respond. The chair also reminded the witness of the protections offered to him by the law of parliamentary privilege.
Perhaps it would also be helpful for the House to be refreshed on those important principles. Beauchesne notes, at citation 109:
Witnesses before committees share the same privilege of freedom of speech as Members.... Nothing said before a committee (or at the Bar of the House) may be used in a court of law. Thus a witness may not refuse to answer on the grounds of self incrimination.
Bosc and Gagnon add, at footnote 681, on page 1080, “As with Members, freedom of speech is extended to the testimony given by witnesses before committees and has been held to include protection from any possible prosecution.”
The reasons behind this important principle are elaborated upon by Bosc and Gagnon, on page 93:
This right [freedom of speech] is also extended to individuals who appear before the House or its committees in order to encourage truthful and complete disclosure, without fear of reprisal or other adverse actions as a result of their testimony. In 2005, the Federal Court of Appeal ruled [in Gagliano v. Canada (Attorney General)] that the testimony of parliamentary witnesses fell within the scope of parliamentary privilege because it is necessary for the functioning of Parliament for three reasons: “to encourage witnesses to speak openly before the Parliamentary committee, to allow the committee to exercise its investigative function and, in a more secondary way, to avoid contradictory findings of fact”.
In 2007, the Federal Court again recognized [in George v. Canada (Attorney General)] that a witness’s testimony before a House committee is protected by parliamentary privilege:
“[A]lthough witnesses before a parliamentary committee are not Members of Parliament, they are not strangers to the House either. Rather they are guests who are afforded parliamentary privilege because, as with members, the privilege is necessary to ensure that they are able to speak openly, free from the fear that their words will be used against them in subsequent proceedings....”
The Court confirmed that parliamentary privilege “precludes other entities from holding Members of Parliament or witnesses before committees liable for statements made in the discharge of their functions in the House”.
However, Mr. Firth persisted in his refusals, citing the RCMP investigation and solicitor-client privilege. Given the latter grounds, it is perhaps important to refer back to Beauchesne at citation 863:
A witness is, however, bound to answer all questions which the committee sees fit to put, and cannot be excused, for example, on the ground that there could be risk of a civil action...or because the matter was a privileged communication such as that between a solicitor and a client, or on the grounds of advice from counsel that the question cannot be answered without risking self-incrimination or civil suit, or that it would prejudice a defence in pending litigation, some of which would be sufficient grounds of excuse in a court of law.
Very similar words appear at page 38.36 of Erskine May, 25th edition.
The fact remains that Mr. Firth was asked questions. He refused. He was pressed to answer by the committee, yet he continued to refuse. That is, I respectfully submit, a contempt of Parliament.
Next, I want to turn to the matter of Mr. Firth's prevaricating evidence. The Canadian Oxford Dictionary, second edition, defines the verb “prevaricate” as “speak or act evasively or misleadingly.”
Derek Lee's The Power of Parliamentary Houses to Send for Persons, Papers & Records, at page 180, states that witnesses have been found guilty of contempt by the House or similarly punished by the House for prevarication.
Erskine May puts it, at paragraph 15.5 of the 25th edition, as follows: “In the past, witnesses...who have prevaricated, given false evidence, willfully suppressed the truth, or persistently misled a committee have been considered guilty of contempt.” That entry falls under the heading of “Misconduct of Members or officers of either House”, a phrase found in the list of established contempts found on page 82 of Bosc and Gagnon.
Parliamentary Practice in New Zealand, fourth edition, also comments in relation to witnesses' obligation to tell the truth, at page 776, saying, “Even to prevaricate before a committee might invite questions.”
In the United Kingdom House of Commons, several committee witnesses in the 19th century faced the wrath of the House when giving prevaricating evidence with a finding of contempt, even committal into the custody of the Serjeant at Arms or at Her Majesty's jail of Newgate.
Example cases may be found. I will not read them all, but the can be found on page 601 of the Journals for August 28, 1835; page 258 of the Journals for February 24, 1848; page 147 of the Journals for April 7, 1851; page 699 and page 742 of the Journals for July 20 and 29, 1853; page 354 of the Journals for July 28, 1857; and page 239 of the Journals for April 23, 1866.
A close cousin of prevarication is the wilful suppression of the truth. On March 3, 1828, a committee of the whole of the United Kingdom House of Commons, which was considering the East Retford Disfranchisement Bill, had before it a witness named Jonathan Fox who spent 90 minutes answering most questions with some variation of “I cannot say”.
The witness was asked to withdraw while the committee deliberated. These deliberations, at column 936 of the parliamentary Debates, are insightful. The record reads:
Mr. Alderman Waithman
observed, that the committee could not suffer its dignity to be trifled with in this way. He would appeal to the committee whether this man's answers could be believed. Something ought to be done to support the dignity of the House, which ought not to be trifled with in this manner. He should move, that the witness had been guilty of gross prevarication.
Mr. Bering
asked, how, if the inquisitorial power of the House was to be exercised, that power could ever be exercised if it was treated in this manner? One phrase was perpetually in this man's mouth.... Here was a man...who had entertained the committee for an hour and a half, with the same answer. He had been guilty, in his opinion, of gross prevarication.
Mr. Peel
thought it doubtful whether the witness had been guilty of prevarication; it seemed a wilful suppression of the truth.
The Attorney General
agreed, that the conduct of the witness did not amount to gross prevarication, although it was evidently a wilful suppression of the truth.
Mr. Wynn
confessed that he did not know what prevarication was, if the witness had not been guilty of it.
In the end, the House adopted a resolution that Mr. Fox “has attempted to defeat the investigation of the committee by wilfully suppressing the truth.”
All that to say that Mr. Firth was quite clearly dodging and weaving in his evidence to the committee, desperate to avoid giving answers. He was, to borrow from the Canadian Oxford Dictionary definition, answering “evasively”. Now, based on the authorities I have cited, that is a further contempt of Parliament committed by Mr. Firth.
Normally, this is the point where I would say that I am prepared to move the appropriate motion, but what is the appropriate motion? Bosc and Gagnon comment, at page 150, that “The terms of the motion have generally provided that the matter be referred to committee for study”. Footnote 386 hastens to add, “There have, however, been exceptions to this practice.”
Therefore, what would be the objective of another committee study in these circumstances? The facts are crystal clear. The questions and the refusals are already on the record. Would we ask the procedure and House affairs committee to report back saying, “Yes, Kristian Firth definitely refused to answer those questions, and man, he was really cagey, too”?
Maingot, at page 263, offers the answer, which is this: “nevertheless open in flagrant cases of contemptuous conduct to move that the facts in question constitute a breach of privilege”. He wrote, a little earlier on the same page, “the practice at one time provided that the alleged contemner be brought to the Bar of the House”.
Indeed, that is what the House decided to do in June 2021 after the government defied an order of the House concerning the production of Winnipeg lab documents, summoning the president of the Public Health Agency of Canada to appear at the bar to receive an admonishment on behalf of his agency. Now, these circumstances are a little different when we are dealing with a committee witness providing testimony rather than a document production order aimed at the government.
The House has, since the turn of the century, held two witnesses in contempt for their evidence before committee. In 2003, the government operations committee concluded that the former privacy commissioner George Radwanski had deliberately misled the committee in his testimony and should be found in contempt of the House. However, given that Mr. Radwanski had apologized to the House in writing, in addition to having resigned as an officer of Parliament, no sanctions were applied beyond the contempt finding.
In 2008, the Standing Committee on Public Accounts determined that the then RCMP deputy commissioner Barbara George had knowingly misled the committee in her testimony before the committee and recommended that she be found in contempt of the House, but it ordered no further action on the recommendation of the committee “as this finding of contempt is, in and of itself, a very serious sanction.”
More recently, in 2011, the sixth report of the Standing Committee on Foreign Affairs and International Development provided the House with extracts of evidence given by the minister of international co-operation, which contradicted her statements in the House. Speaker Milliken ruled, on March 9, 2011, that there was a prima facie case of privilege and the matter was referred to the Standing Committee on Procedure and House Affairs, which heard from the minister and other witnesses but did not complete a report before Parliament was dissolved.
Those cases involved contradicting answers. We are concerned here with getting answers. Therefore, we must look back further in time for instances when the House addressed similar situations.
In June of 1891, Michael Connolly, a witness before the privileges and elections committee, which was investigating allegations of corrupt practices on the part of a member of the House, refused to turn over documents that he brought with him and was being asked about. This was reported to the House, which in turn ordered him to appear at the bar, where he was questioned, granted counsel and ordered to turn over the documents in question.
In August of 1891, Thomas McGreevy, the member whose corruption was being investigated by the privileges and elections committee, appeared as a witness and refused to answer questions. The matter was reported to the House, which ordered him to appear in his place in the House to answer those questions. Mr. McGreevy did not appear, leading the House to order him to be taken into custody. Despite the Sergeant-at-Arms' pursuit of Mr. McGreevy by train as far as Quebec City, he was not captured but was expelled as an MP the following month.
In 1906, William Preston, a civil servant, appeared as a witness before the agriculture and public accounts committees where he refused to answer questions. Each committee reported the situation to the House, where a motion to summon him to the bar was debated, but a Liberal government amendment that excused Mr. Preston was adopted instead.
In 1913, R.C. Miller, a witness before the public accounts committee, refused to answer questions. The matter was reported to the House, which ordered him to appear before the bar, where Mr. Miller was further questioned but persisted in his refusals to answer. The House in turn found him in contempt and sent him to prison, where he remained until Parliament was prorogued four months later.
Let us be clear. I am not proposing that Mr. Firth be imprisoned for this particular offence. However, we must all recall that the House possesses awesome power and authority to vindicate its role as the grand inquest of the nation.
Citations 123 to 125 of Beauchesne's elaborate the following:
123. Privilege grants considerable punitive powers to the House of Commons. The mildest form of punishment is a simple declaration that an act or an article is a breach of privilege. When an individual has been present at the Bar it has been customary to deliver this conclusion to the culprit in the presence of the House. On such occasions, censure of the individual is usually added to the conclusion that privilege has been offended.
124. Occasionally the individual at the Bar will be given an opportunity to purge the contempt and promise better conduct in the future....
125. For more serious contempts the House may proceed further.
Before anyone worries that this might be an intense approach, the United Kingdom Parliament's Joint Committee on Parliamentary Privilege in 1999, at paragraphs 301 and 302, compellingly explained the need for such powers when confronted by contempt.
301. The first question to be considered is whether contempt of Parliament by non-members should still attract any punishment at all. We believe it should. Take, as an example, the investigatory work of committees. Powers must exist to ensure that committee investigations can proceed, that witnesses will attend and that papers will be produced. Apart from public officials and ministers, many interest groups and representative bodies, and many companies and private individuals, also appear regularly before select committees of both Houses. They almost always appear voluntarily. However, occasionally witnesses are unwilling to appear, or information necessary to an inquiry is not willingly provided....
302. If the work of Parliament is to proceed without improper interference, there must ultimately be some sanction available against those who offend: those who interrupt the proceedings or destroy evidence, or seek to intimidate members or witnesses; those who disobey orders of the House or a committee to attend and answer questions or produce documents. Sometimes the conduct is a criminal offence. Then the criminal law should take its course. In the case of non-members that will normally suffice. But unless a residual power to punish exists, the obligation not to obstruct will be little more than a pious aspiration. The absence of a sanction will be cynically exploited by some persons from time to time.
Some from the Liberal benches might urge upon the Chair in the House the fact that these powers concerning these witnesses had not been used in many decades and, therefore, they might argue that they are now in doubt. They might even object to my referencing precedent longer than their time in the House. To that, I would answer with paragraphs 76 and 77 of the 2013 report of the United Kingdom Parliament's Joint Committee on Parliamentary Privilege, which formed part of an analysis on options for enforcing the House's authority, barely 10 years old.
It reads:
76. It is unfortunate that Parliament's restraint has led to doubt about the continuing existence of its powers. They are a part of United Kingdom law and have been so for centuries. In this section we consider the third option, which would involve the two Houses re-asserting their historic penal jurisdiction and setting up procedures for exercising that jurisdiction.
77. The first and most important challenge is to assert the continuing existence of each House's jurisdiction over contempt. This is, fundamentally, a test of institutional confidence. We urge the two Houses to rise to this challenge.
This is why my “appropriate motion” would rise to the challenge and it would do the following: It would find Kristian Firth to be in contempt. It would order him to the bar of the House to be admonished by the Speaker. While at the bar, he would be required to answer the questions which the committee struggled to obtain answers to, as noted in the 17th report, tabled today. Finally, there would be provision for supplementary questions to Mr. Firth arising from the answers that he provided.
The first three items are perfectly consistent with and are modelled upon the order of the House adopted on June 17, 2021, where the president of the Public Health Agency of Canada was summoned to the bar to receive an admonishment and turn over the documents which had previously not been provided. Indeed, Lee writes at page 241, “Where the House finds that a breach of privilege or contempt has been committed by a person, the House may take steps to coerce the offender into complying with the order of the House or committee that resulted in the breach of privilege or contempt.”
Given the distinction here of seeking answers to oral questions, as opposed to the production of papers, I would propose allowing for supplementary questions to be asked. While it has been some time since a witness has been questioned at the bar, the sequence of events would, I respectfully submit, be consistent with the past precedents that I cited of witnesses who had refused to answer questions at committee.
Though the relevant forms and procedures are old and do not neatly fit into our contemporary way of conducting House business, it does not make the idea impossible. Sir John Bourinot, in Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, at pages 70 and 74, explains the procedures for questioning witnesses at the bar for those who want to understand the area better.
In conclusion, the 17th report of the government operations committee outlines a troubling new development in the Liberal government's arrive scam, which I believe amounts to a contempt of the House. Parliament deserves answers about this fiasco. All Canadians deserve to know those answers. We cannot allow the House of Commons to be trifled with or cynically exploited by witnesses who are too clever just by half. We must rise to the challenge. We need to demonstrate our institutional confidence as the grand inquest of the nation.
We must get answers from Kristian Firth about his conduct, which is at the very heart of the arrive scam. If you agree with me, Mr. Speaker, once we have allowed an opportunity for colleagues from the government operations committee to speak to the matter, if they wish, I am prepared to move the motion I outlined earlier.
