Thank you, Mr. Chair.
I've been sitting on this for quite some time, and we heard in the opening remarks of Mr. Virani this notion, stated as fact, that this idea of Crown privilege in cabinet confidence is sacrosanct and supersedes the will of Parliament. I think the references were to his experience as a lawyer, but I would like to put before this committee—and I am going to ask for your grace in doing this—a compelling argument to the contrary.
I reference the powers to summon persons, papers and records that has been delegated to standing committees by the Canadian House of Commons under Standing Order 108(1) and by the Senate under rule 12-9(2).
Diane Davidson, then general legal counsel for the House of Commons, stated:
The extensive powers which a parliamentary committee enjoys are not commonly understood and therefore, at times, not properly respected.
This may be due, in part, to understatement. Consider, for a moment, the powers of Standing Committees as set out in Rule 91 of the Senate Rules and in Standing Order 108(1) of the House of Commons. These include the innocuously-stated authority “to send for persons, papers and records.” No distinctions are made between different types of documents or categories of witnesses. The very simplicity of the words granting this authority would appear to belie the strength of the power thereby delegated. When coupled with the rights a committee enjoys as a constituent part of parliament these are very full powers indeed.
I want to go a bit further and reference another important point, which is, again, on Crown privilege, that claims of Crown privilege do not diminish or derogate from the power of the House to require attendance, testimony or the production of documents.
Diane Davidson, again, when she was general legal counsel for the House of Commons, stated:
It is important to state that there exists no blanket immunity for the executive branch in making a public interest claim against disclosure of confidential information to a parliamentary committee. The so-called “Crown privilege” or its more modern designation “public interest immunity”, is often invoked by the Crown and more often by ministers in refusing to divulge matters or to produce certain documents in a lawsuit on the grounds that it would be contrary to the public interest to do so. It should be noted that this immunity
—and I put emphasis on this next point—
has never been formally acknowledged by the House of Commons as inhibiting its investigatory powers. The public interests...considered and weighed in judicial proceedings, are not the same as the public interests to be considered and weighed when evidence is sought for parliamentary purposes. In practice, parliamentary committees have more readily given consideration to claims of Crown privilege when invoked by a Minister in relation to national security matters and international affairs.... However, in the final analysis, the committee remains final arbiter of such claims.
Again, this was Diane Davidson, who was then general legal counsel for the House of Commons.
This is a convention. This has not, in any way, been something that has been given up by the House of Commons as a power. I think that, by framing this in the way in which it was framed in the opening comments of Mr. Virani, it in fact undermines our power as the grand inquisitor of the nation.
We see this time and time again. There are multiple lists. I heard that he framed it as being one of the foundational principles of the Westminster system. If he wishes to continue down that road, I have examples from many other jurisdictions where this has been defeated in its very notion in every Westminster system. I am happy to state that, should he have questions on those matters.
I am not clear that there is going to be a committee in my time in Parliament that is more important than the one that's before us. If we don't get to the heart of the matter in an open, public and transparent way, one that doesn't at every corner seek to reduce, redact and retract public inquiry into this, we're going to be back on this committee in no time flat, because that's where we are. I've stated time and time again, Mr. Chair, that regardless of what side of the issue Canadians are on, we have a duty as a committee to bring forth the truth and the facts of the matter.
The challenge we have, and I think the imbalance that this committee has, despite its very wise constitution of senators and party members, is that only one side has access to the facts.
As somebody who supported it, I want to be able to go back to my constituents with the facts of the matter, as presented in an evidenced-based way, that support the decision I made.
I'm also prepared, Mr. Chair, that if the facts bear out that a mistake was made, then I think our responsibility as a committee is to provide recommendations back to the House of Commons, the Senate and Parliament that will ensure that this doesn't happen again.
I don't want to allow the conversation around the table to continue to mislead Canadians on the power of this committee, or perhaps underestimate or understate it in a way that isn't actually true to the jurisprudence of the House of Commons.
Thank you.
