Time flies, yes.
Again, I'm reading from the e-mail received from the committee clerk. There are five items. The first one is with regard to the powers of committees in calling for persons and papers. I believe that's the topic that is primarily of interest this morning. The second item is the obligation of witnesses appearing before committees; third is the legal status of evidence taken by committees; fourth is the history of swearing in of witnesses under oath; and last is a possible response to a letter that I have received from a member of this committee.
Certainly in respect of the first item, I can reiterate what I said a few days ago. Basically there are no prohibitive limitations on committees seeking documents or calling upon persons to appear. There are, however, some practical limitations that arise from time to time, as you can read from the very learned text of Marleau and Montpetit, available to all members. There is some discussion there, I think on page 860 and following, about the witnesses at committee. You'll also find in that text a discussion of papers.
Basically you can command the production of any papers. The problem--and this is what I stress with the committee, as I think it's the case here in particular--is that a given document in the possession of the government that a committee is seeking to obtain may be subject to access to information restrictions. That is to say, the government may exercise its rights under that act and preclude the disclosure of the document or parts of the document, and indeed insist on that vis-à-vis this committee or any committee; this is not the first time this has arisen. And I make no comment about what proceedings may or may not be going on in the Office of the Information Commissioner. I'm just speaking generally here.
Regrettably, while the committee is entitled, in my view, to receive the document in its unexpurgated form--or, as they say now, its “unredacted” form, which I don't quite understand--the fact remains that the government, not the government of the day in relation to this particular document but the government or officials generally speaking, feel that they can't provide the document because they would be contravening the act and their obligation.
So what do you do? Well, you can just simply bang the table more loudly and insist on the document coming to you, in which case the government will bang the table more loudly and say no, we can't give it to you because of the act. You would get to a bit of a standoff.
Yes, the committee could call upon the minister, perhaps, to come before the committee to explain why the document is not being provided. That may not be satisfactory, and the committee might then make a report to the House citing this as being a breach of its privileges and make a recommendation to the House as to what the House should do. The House may or may not take the steps that the committee recommends. But meanwhile, the document is not before the committee while you're going through that process.
In principle, you're entitled to what you ask for. In practice, however, in the face of a statute that applies to the government but doesn't apply to the House, or doesn't override its constitutional privileges, you nonetheless have this dilemma where the official feels constrained by the law in the act and the committee wants the official to disregard that.
The simple solution, Mr. Chairman, is to amend the act. But I'm sure there would be ways of getting around that amendment, even if there were one, in various circumstances.
That's what I said to the steering committee, Mr. Chairman, if I'm not mistaken. You were there. I don't know if there's anything I can usefully add to that at this time.