Canada-China Relations Committee on May 10th, 2021

[Christian Roy]

Thank you for your question.

Basically, we recognize the jurisdiction of committees to request documents and to call witnesses. That said, in terms of paragraph 8(2)(c), we're talking about a jurisdiction to compel. There's a difference of opinion here. We don't recognize the committee's jurisdiction to compel in this area.

The fact remains that senior government officials still have obligations to the crown and to the rule of law. They must comply with the legislation passed by Parliament. They also have obligations to the people upon whom Parliament has conferred a right of privacy.

The position that President Stewart stated in his correspondence and in his opening remarks is consistent with the position put forward by senior officials and ministers for at least a decade. This isn't a new position.

In this respect, it basically comes down to whether the committee can ultimately compel the production of information as required by paragraph 8(2)(c).

Thank you.

[The Chair, Liberal, Geoff Regan]

Thank you, Mr. Bergeron. Your time is up.

We'll go now to Mr. Harris, please, for six minutes.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

Mr. Roy, you just explained the obligations by statute—for example, the Privacy Act—that senior public officials have with respect to making documents public. The advice that we have been given and the rulings of the previous Speakers of the House, which are constitutional in nature, provide that committees do have the right to obtain documents whether or not the Privacy Act speaks the way it does, and that anything within the control and knowledge of the executives is available to Parliament, with certain concomitant conventions or obligations on the other part.

You're speaking, I take it, in connection with the obligation of officials with respect to ATIP requests, with respect to privacy legislation and other legislation that might apply when making information available to the public. Am I right?

[Christian Roy]

I'm speaking in relation to the powers of committees as well.

[Jack Harris, NDP, St. John's East, NL]

Perhaps, then, I can ask Mr. Dufresne to repeat what he told the committee with respect to interpretation of the powers and ability of our committee and Parliament itself to call for papers and documents in regard to the redactions we're seeing here.

[Philippe Dufresne]

Certainly. Thank you, Mr. Harris.

As indicated in previous appearances that I've made, the committee's powers to send for papers and records comes from section 18 of the Constitution. It comes from parliamentary privilege and gives the power to send for persons and papers. It is at a higher level than ordinary statutes, and Speaker Milliken in his ruling and the Supreme Court of Canada have recognized the primacy of Constitutional provisions, and in particular parliamentary privilege, and indeed the 2015 document cited today in terms of the government's policy refers to Speaker Milliken's decision in 2010.

It's the same authority that is pointed to, and that authority from Speaker Milliken makes it very clear, as does the authority in other Parliaments, that the constitutional authority of committees and of the House supersedes and is not limited by ordinary statutes like the Privacy Act or the Access to Information Act. These are important public policy considerations, but they do not limit. Speaker Millliken was explicit on the point that the statutes do not allow the government to unilaterally determine that something would be confidential.

It may well be that the House and committees will agree with the submissions, but at the end of the day, it is to the committees and ultimately to the House to decide.

[Jack Harris, NDP, St. John's East, NL]

Would you explain what precautions this committee made within its motion calling for these papers to respect the convention to provide protection and ensure that information that ought not to be made public would not be made public, and that the committee members would have an opportunity, at the same time, to independently assess the validity of what we're being told, or the nature of it, or the consequences of what we are being told by the government?

[Philippe Dufresne]

Well, certainly.

Going back to the government document that was cited today, quoting from Speaker Milliken's ruling, the mention was that the committees or the House will often agree with the positions put forward by the government as to a basis for confidentiality. Indeed, the fact that committees have the power doesn't mean they have to exercise it in all cases. There are valid, important public policy considerations.

There are many tools that committees can take: looking at documents in camera, having only committee members have access to the information, having briefings done in a confidential matter, or having the proposed redactions reviewed by a third party, which could be my office.

In the case of the Afghan detainee case, in Speaker Milliken's ruling in 2010 there was the creation of a committee with parliamentarians, arbiters and judges. There was a process, but at the end of the day, the last word was for committees and the House.

The process here that was put forward was that my office would review the documents with the possibility of proposed redactions by the government and that an opinion could be given to the committee.

[Jack Harris, NDP, St. John's East, NL]

In connection with that, sir, for example, in the 271 pages we've been given—I don't know how many of these pages have been given to somebody else; I guess I will ask that in the next round of Mr. Stewart—we have things like 12 pages, not relevant; eight pages, not relevant; three pages, Privacy Act; 11 pages that....

If there were matters that were irrelevant, I'm assuming we could rely on you. If you knew what we were looking for and there were 12 pages that had nothing to do with our inquiries, you could say, “Look, these pages are not relevant and they've said they're not relevant, and they're correct.” We presumably then take your word for that as counsel to the Parliament.

That's a possibility as well. Is that correct?

[The Chair, Liberal, Geoff Regan]

Thank you, Mr. Harris.

[Philippe Dufresne]

Yes.

[The Chair, Liberal, Geoff Regan]

Thank you very much, Mr. Harris.

We'll now go on to the second round.

We have Mr. Genuis for five minutes, please.

[Stéphane Bergeron, Bloc, Montarville, QC]

Excuse me, Mr. Chair.

[The Chair, Liberal, Geoff Regan]

Yes, Mr. Bergeron.

[Stéphane Bergeron, Bloc, Montarville, QC]

I didn't hear Mr. Dufresne's response.

[The Chair, Liberal, Geoff Regan]

He said yes.

[Stéphane Bergeron, Bloc, Montarville, QC]

Thank you, Mr. Chair.

[The Chair, Liberal, Geoff Regan]

Mr. Genuis, you have five minutes.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you, Mr. Chair.

I want to note at the outset that I think Mr. Chong's questions were manipulated by Mr. Oliphant to imply that he said something he had not said. I think Mr. Chong's points were quite clear, making an argument about how, in our system, we have the supremacy of Parliament, which means that we would expect that when there are investigations into important matters, there would be a greater level of transparency here.

Mr. Dufresne, thank you for your very clear comments about the fact that committees have Constitutional authority to send for documents. It has been upheld by the Supreme Court and by Speaker Milliken's rulings that there are important public policy considerations at play that committee members will take into consideration, and it's ultimately up to them to take those matters into consideration.

Mr. Roy, can you respond to this? If we're to believe your version of reality, that there's no ability for committees to compel documents, then what the hell happened with the Afghan detainee case? What's your interpretation of the events that took place in the Afghan detainee situation, if you don't believe there's a right to compel the production of documents?

[Christian Roy]

Thank you for the question.

Respectfully, the power to send for records is not absolute. That is the position that we're taking. It must be balanced and circumscribed by principles—

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Mr. Roy, I asked you specifically—

[Christian Roy]

—of the separation of powers.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

—about the Milliken ruling.

Is your position consistent with Speaker Milliken's ruling, in your view?

[Christian Roy]

The ruling ultimately, if I recall correctly, amounted to an order from the House.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Is your position about the rights of committees consistent with Speaker Milliken's position on the same question?