I want to talk to you about why I think this motion is important and why I think the members of the committee should support it.
Let me start by going back to what the Speaker indicated in his ruling that there was a prima facie case of privilege. When he made his ruling in April he was responding to a matter of privilege that had been raised on April 14 in response to the leak of the story on April 12 to Laura Stone at The Globe and Mail. The Speaker made a point of indicating that the issue of “provenance”—that's the term he used—meaning where the leak came from, finding the source of the leak, ought to be the focus of our investigation, not what we are now focusing upon.
About halfway through his remarks he said, dealing with an earlier case, that “no doubt existed as to the provenance of the leak”, referring to a previous leak that had occurred back in 2010. He's emphasizing that the source of the leak is of key importance. Looking back at previous Speakers' rulings, I find that in dealing with a similar situation back in 2001, Speaker Milliken also emphasized the importance of seeking out the provenance, the source, of the leak. Once again, this was at that time a piece of legislation, Bill C-36, the anti-terrorism act.
Mr. Chair, you were in the House when that arose, as I was.
It was a matter of equal importance from the point of view of Canadians at that time to the stature that Bill C-14 has in the public consciousness today. Some of the content was leaked. The member for Winnipeg—Transcona, at that time it would have been Bill Blaikie, argued that the Speaker ought to investigate.
The Speaker, while he appreciated this input, corrected Mr. Blaikie in the following words:
The hon. member for Winnipeg—Transcona in his remarks tried to assist the Chair by suggesting that it was for the Chair to investigate the matter and come up with the name of the culprit and so on. I respect his opinion of course in all matters, but in this matter I think his view is perhaps wrong. There is a body that is well equipped to commit acts of inquisition, and that is the Standing Committee on Procedure and House Affairs.... Accordingly, in my view this is a matter which ought to be sent to the committee.
Of course, he then went on to rule that a prima facie case of privilege having been found, the matter should be further investigated by the procedure and House affairs committee, by this committee.
The point to be emphasized is there is a body that is ideally suited—I wish he had not used the phrase “commit active inquisition” because, clearly, our goal is not to be the Spanish Inquisition—to inquire, to engage in matters that require further inquiry.
We are the body that does inquiries. Doing inquiries for the purpose of discovering the source of leaks is what we do when leaks of legislation have occurred. To further emphasize how important this was, I am once again turning back to Bill C-36. I wonder if I could also draw the attention of members of this committee to the words spoken by Don Boudria, who at the time was the Liberal House leader. To be clear, the Liberals were in government, he was the House leader, legislation of his government had been leaked out.
He made the following comment prior to the Speaker making his ruling. He said, with respect to Bill C-36, that:
On Saturday I saw extracts from the bill in the media. They were not all factually correct but enough of them were that it caused me to be as concerned as the hon. member
—he's referring to some other member who'd raised the matter—
when raising this question in the House. I cannot say much more other than to apologize on behalf of whoever is guilty of this. I use the word guilty because that is what comes to mind, given the respect that I have for this institution. Anyone who breaches that respect is guilty of an offence in my book. The problem is that we do not know who it is.
So here we have the government House leader, who has just seen a leak occur on his watch, making it very clear that he thinks it's appropriate to determine the identity of the individual.
That's the first point to be made. It is our job to find the individual. It is our job to find the individual because the privileges of the House have been breached. It is not part of that investigation to try to predetermine whether or not the leak was deliberate or unintentional. I have my own views on that subject. I've shared them with the committee in the past. This looks far too much like the kind of information that I would have included in a deliberate leak had I been in the business of deliberately leaking information. That is to say, it very neatly shaped the story that came out of the media. The focus was on the bill not going far enough as opposed to the bill going too far. That is the kind of thing one does when one is trying to engage in leaking for the purpose of redirecting conversation and shaping public discourse.
That being said, that does not, as yet, point us in any particular direction. We do know, based on the testimony we heard from one witness, the Minister of Justice, that she has firmly and absolutely.... In response to my question, when I simply asked her, “Are you the source of the leak?”, she said no. We take her at her word. I take her at her word; I thought the rest of her testimony actually indicated very clearly.... I should be careful what I say here; it indicated to me, in a way that satisfied me, in my subjective judgment.... That's a bit different from being clear, but it was subjectively satisfying to me that she was not the source of the leak.
Indeed, I think her willingness to appear here, at a time when she really is arguably the busiest person in Canada, indicated to me that she was anxious to clear her name and make a point—i.e., that whoever else is the source of this, I am not, and I don't have information as to who is; that is to say, it was not leaked by somebody else with my sign-off, active or passive.
I accept that, but that doesn't mean that the acceptance, active or passive, of other individuals was not involved. Indeed, that is the likeliest scenario. I think when we see a reluctance to allow anybody else to come forward, or indeed to explore which individuals might be responsible, be they officials or be they elected people, it indicates a desire to prevent the truth from being found.
Why would that be, Mr. Chair? Most obviously—indeed, it's the only plausible explanation I can have—it was a deliberate leak. Moreover, a search for the truth revealed that it was not a leak that can be pinned on some low-level individual. No low-level individual can be thrown under the bus and thereby end the story. When we can't find some enlisted soldier to use as a sacrificial lamb when one of the generals is implicated, we start stonewalling. That's what this looks like to me.
Now, I want to come back to a point that Mr. Chan had been making. Mr. Chan said that, well, the text of the bill was not actually leaked, that what we had instead was negative information, information about what wasn't in the bill. Therefore, previous rulings where we talk about the text ought not to be treated as being as important.
Just to be clear about this, I'm returning now to a ruling that Speaker Milliken gave on October 4, 2010. If one turns to page 4711 of the House of Commons Debates—I know we all have our copies with us right now—you'll be able to read Speaker Milliken having said: “It is indisputable that it is a well-established practice and accepted convention that this House has the right of first access to the text of bills that it will consider”.
I think Mr. Chan is arguing that this convention should be understood very narrowly. As long as I don't use the words in the text when I'm making my leak, if I am, say, a minister of the crown or a communications person for one of the ministers of the crown, then no real breach has occurred because under this narrow and technical construction, the actual text is still seen first in the House. If I use words that are somewhat different or if I don't have them in the correct order, as they were in the bill, then I haven't leaked the text of the bill.
This narrow and technical construction, Mr. Chairman, of course is incorrect. The law can sometimes be interpreted narrowly and technically. That is not the interpretive doctrine that the Supreme Court currently, typically, uses, either for constitutional or ordinary textual interpretation, but it has been a respectable doctrine of interpretation in the past, in certain situations where the overbroad reading of the statute could result in an act of injustice.
I'm going to loop back here for a second, so you can see the point of the distinction I'm driving at. In one famous case from the 18th century that is cited in Blackstone, Parliament passed a law indicating that the death penalty was to be applied for any rustling or theft of cattle.
In the language of the 18th century—the English language evolved, of course, as did the French language and other languages—the word “cattle” sometimes was taken in the sense that we would use it today to mean cows, bovines, but “cattle” was also meant sometimes as a term for all livestock. Faced with the situation of an individual who had stolen or poached some other animal—I think sheep, but I'm not sure—the court chose to give a narrow and technical construction to the word “cattle” and said it interpreted the word “cattle” as narrowly as it could, to mean only cows. This was a sheep. This individual would not hang.
I'm not sure what happened to that individual. They probably got transported to Australia or something lesser, but nonetheless it was perhaps not desirable.
Then Parliament passed a new law saying in this act, the word “cattle” meant all livestock, thereby making it clear that they wanted people who poached anything to be hanged.
That general practice of using narrow and technical construction for criminal law, although it has been eroded to some degree in recent decades, remains a way of dealing with situations where the law could wind up causing acts of injustice were it interpreted by using the opposite practice, which is known sometimes as “large and liberal” construction—“construction” means “interpretation”, by the way. The term the Supreme Court likes to use, “purposive” construction, that is to say we interpret this, whatever the words are, to bring fulfillment to the action that was intended.
That's the law. We're dealing here with a convention or practice. There is no such thing as a narrow construction of a convention or practice. It's all about intention. There is no looking at the letter of a convention and ignoring its spirit. It is all spirit. And interpreting the spirit of the law, or a practice or convention, inevitably means giving it a broad construction.
This gets expressed in a number of ways in House of Commons debates, particularly in rulings of the Speaker. The Speaker points out, for example, that you cannot do by the back door that which you cannot do by the front door. In the same way, if I want to address a question to the Prime Minister, I have to refer to him as “the Prime Minister”, not as “Prime Minister Trudeau” or “Mr. Trudeau”. I can call him “my honourable colleague”, “the right honourable gentleman”, and so on, as long as I don't use his name. That's the direct rule. But I can't get around it. I can't enter through the back door by saying, “Today's Globe and Mail says that Prime Minister Trudeau...”, saying that I'm quoting somebody else, so it's not me; it's them. I've tried to come through the back door when the front door was shut. I have tried to find a way of interpreting a practice narrowly, when it ought to be interpreted broadly.
All right. So now you can see the point I'm getting at. We have a practice, a convention, relating to the text not being leaked. It is a well-established practice. It applies to words that don't actually contain chunks of the text, but that have the same effect. I wanted to make that point very clearly, but I would actually go further. In regard to this talk of negative versus positive information coming out, unless the entire text of the relevant sections of Bill C-14 had been released to Laura Stone, it would have been impossible to summarize that which was being left out of the legislation, if you follow. This is all about, “Here's what the government won't be doing. Here's why people who feel very strongly that the legislation should go further ought to be upset. Here's why people who feel the legislation ought not go as far as the parliamentary committee had recommended ought to feel that the government is responding to their concerns”, which after all, is the entire communications exercise of the leak.
That can only be accomplished by indicating that which was absent from the bill. As I pointed out to the minister when she was here—and she made the same point about only negative information being contained—that actually was a greater disclosure of information. I can know only part of the government's plans and leak that positive information about what's in the bill. I could be someone who was only privy to one part of the legislation. But in order to say this or that is actually absent from the bill, I must be familiar with the entire bill, the whole of the bill.
I would make the suggestion to you that only relatively senior individuals in the government, be they people who are actually elected officials or people who serve those officials in a staff capacity, would have had access to all of this information. We haven't ascertained who those people are. It is not an infinite list. It is a finite list. It is a list the government could provide us with if we passed this motion. This is information the government would have to provide us with. And that, I suspect, is the real reason—although one should never attribute motives in this business—that the Liberal members of this committee have been instructed to try to ensure that this motion does not pass. Their goal is, of course, to make sure that the “guilty” parties—to use the term that Don Boudria, Liberal House leader, used 15 years ago—are not found.
That, of course, leaves them at liberty to do the same darned thing all over again. If the approach is going to be that when these matters come before this committee, this committee then kills them quietly, then this committee effectively ensures that contempt of Parliament can happen, and those who engage in that contempt get away scot-free.
Once that pattern has been established, once it is clear that there is no punishment for acting in contempt of Parliament in this particular manner, then they can do it all over again the next time it serves their communications goals to act in contempt of Parliament and release information in this manner or in some similar manner. That's a very worrying thing.
Mr. Chair, I now want to turn to the question of whether this was a deliberate versus an accidental leak. As you know, I've already editorialized to some degree on this. I thought I would explore in a bit more detail why this is important, and the point I'm about to make emphasizes the importance of passing this motion.
I've pointed out that the very fact that the Liberals would like to shut this down suggests that it's someone higher up. It also suggests deliberate intent. After all, if it was an accident, we would be able to determine what the accident was and we could ensure that hole was plugged. Someone could say, “Mea culpa, I'm upset”.
They might say something similar to what Don Boudria said. Let me go back and give you a bit more of what Don Boudria said in 2001, because it is striking. He admits that he is not in complete control of what's going on and is frustrated by that fact. So on October 15, 2001 Don Boudria said, and I quote:
Last Friday afternoon I received a copy of Bill C-36. As is my role as Leader of the Government in the House of Commons, I do what is known as a review of the bill. I took precautions then and earlier with the minister and all of her staff to ensure that the bill was not in any way given to the media or otherwise. I was given that assurance by everyone I spoke to.
This is the part I quoted from before, but I want you to go back and look at what was said by the House leader at the time explaining how it works.
Is his role as leader of the government in the House of Commons, he does what is known as a review of the bill. At some point before it is released to the House of Commons, not way in advance, he gets to see a copy of the bill and, as is the case with Bill C-14, you're dealing with a piece of legislation that is both high profile and also urgent. It has been pulled together in a hurry.
He sees it a few days before it is released. Part of his job, which he stresses, is to make sure that nothing has been given to the media by the minister or any of her staff. The minister he's referring to is the then Minister of Justice, Anne McLellan, and, of course, her staff, and he was given assurances. The House leader was then and is now in possession of the assurances of individuals that they did not leak it. Unless, of course, somebody said they did leak it.
There are several possibilities here. Either, one, the House leader Dominic LeBlanc was given assurances from everybody that no leak had occurred, and one of them lied to him; or two, he was informed by one of them, but the others wouldn't have known that in fact a leak was going to happen or had already happened—it was in the works, and so he was part of it—or three, he and his office were themselves a part of the strategy to leak the information.
I don't know which of those three scenarios is correct. I do accept vis-à-vis the Minister of Justice and her officials, unless they are working behind her back, which I suspect is not the case, that they are not the source of things. But someone is the source of things because the leak exists; the leak was there in The Globe and Mail on April 12. It was a deliberate leak, unless some kind of scenario exists that I'm having trouble imagining, and the House leader is very likely to have known about it.
The House leader should be before this committee to clarify that and, just as we did with the Minister of Justice, we would take him at his word if he says he knew nothing. We would not say, “Minister, you're lying”. We all understand that, if he were lying, that would be itself a contempt of Parliament, and the kind of contempt of Parliament that ends a career if it's ever demonstrated to be the case.
The justice minister's awareness of the severity of deliberately and overtly lying to a committee of Parliament is one of the reasons I take comfort in her words. I take very seriously her words, because she is, as we all can see, a very intelligent person who is not going to do something that stupidly self-destructive.
He should be here. He will be on the distribution list, for sure. He should be here testifying before this committee. He could go further, I believe, than any other person in bringing clarity to where and when this deliberate leak was planned, who was involved in it, and what their strategy was. I guarantee that sunlight—and they say that sunlight is the best disinfectant—will bring an end to future leaks of this sort because no one will want to go through that again. That is the reason we want to have him and other people on the list here, or at any rate to know who they are so we can figure which of those individuals should come here.
Let me make one last point about the desire of the Liberal committee members, or the Liberal whip, to vote down this motion which is critical to actually determining the provenance of this leak. As we've found with the recent matter of privilege on the Prime Minister's physical contact with the member for Berthier-Maskinongé, the committee is in a position to make a ruling and to report back to the House on contempt of Parliament, whether we believe it happened or not, and, if so, how—that is, the details—and perhaps recommendations as to how to ensure that this sort of thing doesn't happen again.
We also have the ability to just say that no report is necessary. This was actually new information to me as of that meeting, and the record of my interaction with Mr. Christopherson in which I tried to determine what course of action we should have, and of my interaction with the clerk in which I tried to find out the rules in this matter, are a matter of public record.
The option of determining that there's nothing here to see not merely ends the possibility of reporting back to the House, but the possibility of dissenting opinions. It ends any investigation. As such, I would make the suggestion that it has the practical effect of giving licence, of saying to the government, “You got away with it. There was an insignificant little hearing, which produced no result and then got shut down through the simple act of the government exercising its majority to reject any new motions to bring forward witnesses.” That's all the punishment there is, so they may be able to get away with this.
I mean, the idea that a convention or practice is permanent and that it can never be eroded is incorrect. Normally the idea that conventions, whether constitutional conventions—and that's my area of specialization—usages, practices that exist in the House, are permanent and lock themselves in is actually not guaranteed. Normally, they do. Normally a convention or practice is an act of self-restraint that is not actually written down in the rules but is accepted as a norm of behaviour and is sanctioned by the overriding body, demonstrating its disapprobation. Normally these things become stricter and stronger with time. If you look at our day compared with 50 years ago, 50 years ago compared with a century ago, and a century ago compared with two centuries ago, you'll find that the conventions are becoming, on the whole, stronger.
These conventions impose restraints upon all of us to abide by the norms of civilized behaviour—or the norms of “respectful” behaviour perhaps is the right term to use—that cause us to restrain ourselves in ways that are not written down in the rules. Those norms become stronger with time, on the whole, but they can go in reverse. One of the roles of this committee ought to be to try and ensure they do not go in reverse and that we do not find ourselves chipping away at, or eroding, a convention, so that something that was not considered respectful behaviour or acceptable behaviour in the past comes to be tolerated in the present.
I would submit that if we're looking on the grand scale of things, then this erosion of self-restraint is one of the things we see happening, for example, in wartime. They always say “truth is the first victim in any war”. The need to shut down openness for strategic reasons becomes one of the victims of war even in the best and most civilized countries, and even when we are fighting for the most just of causes, as we were in the Second World War. In the midst of that war we did things that we are not proud of and that we now recognize were wrong. While I do not make an analogy here, the purpose of the analogy is simply to point out how conventions can erode. I do note that the way in which we acted toward one subgroup in our population at that time was unacceptable.
One could point to other conventions, perhaps at a more benign level, but let me make a clear example here of a constitutional convention in the United States. It was initiated by George Washington, and it developed over the decades, that no president ought to serve more than two terms in office. That was the convention that was respected by every president up to Franklin Roosevelt, who in 1940 ran for a third term because there was a crisis in the nation with an impending war. The United States was still not out of the Great Depression. Nobody thinks that Franklin Roosevelt was not a great man, but after he passed away, a decision was made and concurred with by two-thirds of the members of each of the two houses of Congress, as well as by the legislatures of three-fourths of the states, that in the future no person should be able to serve as president for more than two terms, and that was put into their Constitution.
There was a minor exception made for someone who had served less than half of a previous term of a previous president. Such an individual could serve two terms plus that half term, and Lyndon Johnson considered taking advantage of that in 1968 before announcing that he would not be contesting the 1968 presidential election.
The point I'm making is that conventions can be rolled back, and that what is true with a constitutional convention is also true with a parliamentary practice.
I think what we are seeing here is an attempt on the part of the government to roll back a practice and to say that a practice that has always been understood and interpreted robustly ought to be—“ought” is the wrong term, because it implies they think this is of value—or they can get away with, if they do the right things, restricting or narrowing a practice that is respectful of the House. They can say, “As long as it's not the text, it's okay, we can get away with it”, or that, “If we get caught, then we'll just take this to committee, and we'll kill it quietly.”
We have been given the task of looking for the “guilty” party, in Don Boudria's words, and seeking out the provenance, in Speaker Milliken and Speaker Regan's words, of the leak. Their words, the Liberal's words and Mr. Chan's words, are that this isn't necessary. The Speaker says it's necessary, or recommends it to us, but they say it's not necessary. Past practice has been to take this very seriously, but meh, they say it's not necessary because of a technical argument that there was no revelation of the actual text, even though, clearly, the leak is of a greater scope than if the text had actually been leaked.
Maybe they're right. Maybe they can get away with this. That's how it happens. People drop their guard, either because they feel it's an emergency, for example, in a time of war, or as with the Anti-terrorism Act, in a time of national crisis.
Returning to that bill, Mr. Chair, I voted against that bill. I voted against it because I held a constituency referendum, similar to the one I held on Bill C-14, and the majority of my constituents said to vote against it. They told me to vote against it because it lacked a sunset clause.
We said in a time of crisis that we were willing to suspend some of our traditional civil liberties in the pursuit of terrorists, in the pursuit of those who are willing to do the kind of horrible thing that was done on September 11 and that, in another way, with another weapon, was done just last weekend in Orlando and has been done a thousand different times, a thousand different ways, in the intervening decade and a half. My goodness, those of us who lived through September 11 and those who are living through all of the subsequent horrors visited upon us—whether in London with the subway bombings, or in Paris with the nightclub attack, or in Orlando with this recent outrage against humanity, or any of the others that have slipped my mind because there are so many—can be sympathetic to that goal of saying that we have bigger fish to fry and we can set aside some of these safeguards we have put in place.
But even then, in rural, conservative, law-and-order Lanark County, a majority of people thought it was too much of a price to pay. So they instructed me to vote against that.
I voted not only against the government but also against my party. Four of us from the old Canadian Alliance broke party ranks and voted against it, along with the NDP caucus who also voted against it. I thought that was important.
There is no similar crisis driving this particular breach of the practices of the House. Don't misunderstand me. There actually was a looming deadline—now passed—on June 6, that if we did not have a new piece of legislation in place, the relevant provisions of the Criminal Code would cease to be in force and effect, and so there was an urgent deadline in that sense.
The urgent deadline having passed, we are not actually faced with the prospect of physicians euthanizing people in the streets, which some fearmongers seemed to be afraid was going to happen. But that wasn't what this leak was about. This leak wasn't about somehow assisting the government to deal with that impending crisis, real or artificial.
This was about trying to shape the debate. This was about manipulating public opinion. This was about manipulating the thoughts in peoples' heads. This was about misdirection. This was about the abuse of public discourse. This was about someone saying that he or she has a whole package of information and is going to selectively put out part of that information, going to put it out in a way so that nobody can confirm the truth or accuracy of it, going to put it out in a newspaper with national reach, going to put out this leak in a way that will get picked up by all media, going to shape this debate.
This is not information. This is misinformation. Although virtually every word in this is true, this is about misinformation.
It is striking to me, Mr. Chair, and it should be striking to any objective observer, that one of the minister's defences—and this should not be taken as being terribly serious—was that, after all, part of the leak is inaccurate. It's not correct, so that's okay as a defence. Now, I think you know my response to that. My response to that is that it would almost certainly have been a verbal leak. Laura Stone would have received an email or a phone call saying let's get together. I assume they either met somewhere or had a conversation over the phone with Laura Stone then taking notes, but she was not left with a copy of the legislation, and nobody wrote down or took dictation.
The likeliest explanation is that Laura Stone...and I could be wrong, because maybe she was and is an expert on the details of the ins and outs of assisted suicide, but even if she were, she very likely just made a slight wording error. But a minor correction to the wording makes this correct in every detail.
That is what happened, and it is most regrettable that we are being told that this is not important, that this is something we should just drop. Also, to be clear, this is something we can expect to recur in the future.
Turning now to the great poet, T.S. Elliot, do you remember he talks about how freedom dies when civilization dies, not with a bang, but with a whimper? It's a thousand little whimpers, our failing to respond vigorously. Our failing to try to keep committee meetings going when we're faced with the stone wall we see across the way here, that would be one of the whimpers. That is the reason, Mr. Chair, that we are attempting to exercise the only weapon we have on this side of the aisle, which is public opinion to try to draw attention by dragging out this debate to the fact that debate is about to be shut down; to the fact that open inquiry is about to be shut down; to the fact that silence is about to reign on how one deals with contempt of Parliament.
No one doubts that a contempt of Parliament took place. The question now is whether it's worthwhile taking the valuable time of this committee, or whatever the argument is, to look at this contempt. Matters of privilege are in fact the primary matter this committee looks at. Sometimes they're of a technical nature, sometimes they are not, but they're the primary matter and they take priority. That is a practice long established with us and written into our rules. It is done because we understand that the erosion of these privileges, a little bit at a time, and sometimes by someone who has a very high rating in the public opinion polls at that moment, nevertheless results in the stripping away of those norms of respectful behaviour that are the basis on which our success as an institution is founded.
The way you will have to deal with this in the long run, if the government gets away with this, is that at some point in the future you will have to take your norm of appropriate behaviour and write it into the rules. It's a hard thing to do because once you switch something from being a norm to being the black letter of the rules, it becomes highly mechanistic—a matter that we are all aware of—and something that we're dealing with consensually in the MP code of conduct with regard to issues like gifts and so on. An attempt was made there to put something into a formalized code. The need to be punctilious in our respect for every detail of that code has created its own set of problems. But that is how you deal with it when you can no longer rely on the usages, the conventions, and the practices to provide guidance.
I didn't want to take up all the committee's time. I merely wanted to lay out the arguments. I thought it would be best to be as fulsome as possible.
Perhaps with that, Mr. Chair, I can terminate my remarks. I look forward to the contributions others may have to this discussion.