Evidence of meeting #14 for Special Committee on the Canadian Mission in Afghanistan in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.
A recording is available from Parliament.
4:25 p.m.
Director and General Counsel, Criminal Law Policy Section, Department of Justice
This is with relation to instructions from PCO?
4:25 p.m.
Liberal
Ujjal Dosanjh Liberal Vancouver South, BC
No, seeing or not seeing all the famous or infamous Colvin reports, if at all, and when.
4:25 p.m.
Director and General Counsel, Criminal Law Policy Section, Department of Justice
I've never heard of the Calder report.
4:25 p.m.
Director and General Counsel, Criminal Law Policy Section, Department of Justice
The Colvin report, okay. I haven't been involved in....
4:25 p.m.
Liberal
November 4th, 2009 / 4:25 p.m.
Director and General Counsel, Criminal Law Policy Section, Department of Justice
The Colvin report?
4:25 p.m.
Director and General Counsel, Criminal Law Policy Section, Department of Justice
4:25 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
Mr. Chair, I think this is starting quite badly. I might also have to speak with my lawyer present, because I think this has got off on the wrong foot.
However, I would like to raise some questions with Mr. Watkin and Mr. Breithaupt that are actually important.
I would like for us to have an admission facts, as is done in court. I don't know whether you are familiar with that approach. As lawyers, you must be familiar with it. Please understand, and I am speaking to the witnesses, Mr. Chair, that the House of Commons has a traditional role to play, as the Grand Inquest. We, all of us who are members, are the protectors of the realm; I think that is a good way of starting off. And you are entitled to protect your realm, or the people behind you, who have instructed you, are entitled to protect their realm. As a part of that Grand Inquest, I did not see any openness in your presentation to having the Grand Inquest perform precisely that role.
I want to remind you of the important principles that must be put on the table. That is why I suggest an admission of facts.
If a law allows ministers or the government to conceal information from Parliament, that will mean that the government may invoke the law and avoid its obligation to account to the House. At this point, I am immersed in parliamentary rights and I want you to know that parliamentary rights will soon take priority over your own rights. We here carry the legitimacy of elected representatives. The government is entitled to defend its realm, but we are entitled to get to the bottom of an investigation, and that is what must be done.
There is a second principle. Where there is legislation whose words provide that it applies to parliamentary proceedings, the House and its committees have the authority to decide whether the legislation applies to its proceedings, and how it applies. That is very far-reaching. It means that you could not cite the legislation to say that you cannot answer our questions. It takes precedence. We are the ones who will take precedence here. You must account to us.
I do not want to back you into a corner, but that is not all. In the case of legislation and provisions relating to national security... And we are going to get to the bottom of national security, because we, the members here, are tired of being told that we can't be told something because of national security. You are soon going to have to justify it, this national security, and we are the ones who will demand that, as the elected representatives of the people and the holders of parliamentary rights, which are very important.
How, in what circumstances, will the provisions apply to the House and its committees, if they apply? That will be our decision to make. The decisions of the House or its committees in that regard cannot be reviewed by any court. That means that you could not even go out the door here and tell your principals that you are going to court because you don't want to answer questions from the Standing Committee on National Defence. You could not do that.
I don't know whether you are prepared to answer my questions, but I can give you time to reconsider things and go back to your principals and ask them whether what I have said is true. You will see that what I am saying is true.
Will you be prepared to answer all questions concerning national security? And do you agree with my interpretation? Do you agree to the facts, that the parliamentary principles I have just laid out supersede your rights, in legal terms? Do you acknowledge that? If you want to take it under reserve and answer later, I have no problem with that. However, I want this question to be settled from the start.
4:30 p.m.
Conservative
The Chair Conservative Rick Casson
Mr. Bachand, are you addressing that to someone or making a statement?
4:30 p.m.
Bloc
4:30 p.m.
Voices
Oh, oh!
4:30 p.m.
BGen Kenneth W. Watkin
I have the greatest respect for this committee and for the House of Commons. I am certainly here and, as I mentioned in my opening remarks, prepared.... I have outlined the legal framework, and I am fully prepared to answer questions with respect to the legal framework to assist this committee.
I am also a lawyer and a legal adviser. As I mentioned, the Supreme Court has ruled a number of times on the importance of solicitor-client protection, not only with respect to how absolute it is, but how essential it is to the proper running and the confidence that clients will have that they can have candid and frank discussions in order to get exactly candid and frank advice. Of course, the concern about the breach of that privilege is not only an ethical and legal one for a lawyer. It has broader public policy questions with respect to the provision of legal advice to government officials.
So I must respectfully again indicate that I am bound by privilege. I will certainly take away what Mr. Bachand has stated and discuss it with the appropriate officials, in particular with my client.
4:30 p.m.
Conservative
The Chair Conservative Rick Casson
Thank you.
Does anybody else want to comment on that?
Go ahead, sir.
4:30 p.m.
Director and General Counsel, Criminal Law Policy Section, Department of Justice
I will just note that:
Public servants have a general duty, as well as a specific legal responsibility, to hold in confidence the information that may come into their possession in the course of their duties. This duty and responsibility are exercised within the framework of the law, including in particular any obligations of the Government to...protect [information] from disclosure under [certain] statutes such as the Privacy Act.
And that:
Officials must...respect their obligation as public servants not to disclose classified information or other confidences of the Government to those not authorized to receive them.
4:35 p.m.
Conservative
The Chair Conservative Rick Casson
Thank you.
I'm sorry, but that uses up your first slot, Mr. Bachand.
Go ahead, if you have a short one.
4:35 p.m.
Rob Walsh Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, I feel I must respond to what Brigadier-General Watkin was just saying about solicitor-client privilege. What he's saying relative to the obligation on lawyers as lawyers, in the usual context in which lawyers operate, is true.
Solicitor-client privilege, in my view, is an important privilege. It is one the committee obviously should respect but not necessarily be governed by. It is a principle that relates to the legal rights of people who are in that solicitor-client relationship. It's all designed for the benefit of the client, not the lawyer. It is to protect the client's rights from being prejudiced by the wrongful disclosure of information exchanged with a lawyer.
But that's in the context of legal rights, legal proceedings. There are no legal rights at issue here. These are not legal proceedings. These are parliamentary proceedings. It is, in my view, open to the committee to seek answers from a lawyer appearing as a witness, notwithstanding this principle, although I do believe that it is a principle of some importance and that the committee should not tread needlessly upon that principle in seeking information from a witness who is a lawyer.
4:35 p.m.
Conservative
4:35 p.m.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Thank you, Mr. Chair.
I'd like to start with Mr. Walsh.
Obviously we have troops in Afghanistan. There is a possibility that information revealed in committee would have consequences to that situation. You suggested I think in your letter to Mr. Dosanjh that it is the committee that should consider whether disclosure is harmful. Do you have any suggestions? I'd like a short answer, if you could, on any practical way the committee could do that. We have quite a long list that Mr. Breithaupt brought up of things that make a lot of sense to me as things that would be, or could be, injurious in a public forum.
4:35 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
I share the proposition that yes, there could well be information relevant to your mandate that could be injurious or sensitive as contemplated by the Canada Evidence Act.
All I can suggest for the committee, Mr. Chairman, is that it take steps it might be comfortable with that would limit the possibility of such information becoming public. The obvious suggestion is in camera sessions. Some people have reservations about the effectiveness of that mechanism, but you might go in camera with no transcript.
Well, there may be doubts there. In that case, while you are in camera, you might have no transcript and do it as a subcommittee. You go forward that way in terms of limiting the number of people who are exposed, or you seek information in a summary form, as Mr. Breithaupt mentioned. In some cases, summaries are made available or names are removed.
It seems to me--and I haven't examined the detailed cases he mentions--that what the courts are concerned about, in addition to the harm caused to the country in its international relations, is the harm it might cause to individuals, to informants and others who may have been identified and may suffer reprisals.
There may be steps you can take of a kind that could make the information still useful to you and useful for your report, but not identifiable as to its source or harmful to the international relations of the country.