Evidence of meeting #4 for Access to Information, Privacy and Ethics in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was schreiber.
A recording is available from Parliament.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, that's where the law meets politics. It's not my competence to comment on what political course of action might follow from a certain legal action or from a lack thereof. I'm not ducking the question.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
Going to the House of Commons, that's not political. Could you tell us if it will strengthen our position if we take this issue to the House of Commons?
Law Clerk and Parliamentary Counsel, House of Commons
It would strengthen the position in the sense that the House of Commons as a whole speaks with larger authority than perhaps a committee of the House does, with the greatest respect. In that sense, ostensibly it would strengthen the position vis-à-vis outside authorities, yes.
Liberal
Robert Thibault Liberal West Nova, NS
Thank you, Mr. Chair.
I hope that Mr. Walsh will remain present for the rest of the meeting. He's been most informative.
What I'm grappling with along the same line, Mr. Walsh, is the question of what trumps what, and what has more power in order of precedence before the court. Is it simply a political game, or a power struggle, or a power match?
We have a summons by the committee. It's incumbent upon the minister, and he has the authority and power to assist us with that summons; or he can do as he is doing now--refuse to assist and just say that he won't send him out of the country before December 1. If I understand correctly, the only option we'd have under it is that if he does it, we can find him in contempt, or we can seek to find him in contempt, of Parliament.
The we can take this as an order the House. We can make a report of this committee to get an order of the House. That would have more power, as you suggest, because it would speak from a larger group. The House of Commons has more clout than does a single committee. But if I understand everything you've told us, we still remain at the same place: it's still a political decision by Mr. Nicholson, and there's no definite law. If I understand what you're saying, it remains a political question. If he refuses to obey the order of the House, again, we could at best seek to find him in contempt of Parliament if Schreiber would be in Bavaria and not available to the committee.
If you look at an order to surrender under the Extradition Act or under ministerial powers, are you saying there's no defined order of priority, order of precedence, or magnitude of power that sets Parliament above a ministerial order?
Law Clerk and Parliamentary Counsel, House of Commons
The Extradition Act doesn't take into account—as most statutes don't—what legal powers might be exercised by the House of Commons or its committees vis-à-vis the powers discussed under the statute. It's just not dealt with. So in that sense you're bringing into play considerations that simply aren't contemplated by the Extradition Act, and that's not unusual.
I think I'm answering your question in saying that an order of the House has the standing legally of an order of the Superior Court. Officials have to respect an order of the House much as they would respect an order of the court.
By that process, what you'd be doing is you would be serving a legal document on the superintendent of the Toronto West Detention Centre. In our view, he'd be obliged to respect it, notwithstanding the fact that he has an order of surrender from the minister directing him to hold the person in custody until the surrender is executed.
Nonetheless, in the face of this order, in my view, he or she would be obliged to respect that order of the House, deliver the person here, and perhaps maintain custody up to the doors of the precincts. He would then hand the individual over to the Sergeant-at-Arms to provide to the committee. After the committee was finished that day, he would return him to the custody of the superintendent, return him to the custody of the provincial authorities, and perhaps bring him back on an another occasion, if the committee wanted him on a second occasion. It depends on the terms of the order.
Liberal
Robert Thibault Liberal West Nova, NS
Could I seek, through you, Mr. Chair, clarification on his answer. You will you make the decision on whether you can put it forward or not.
Liberal
The Chair Liberal Paul Szabo
I think we agreed we were going to hear from the five people. I understand there could be a lot of debate here, Mr. Thibault....
Order, please.
All right, go ahead.
Liberal
Robert Thibault Liberal West Nova, NS
I'll suggest to you the clarification I seek, and you can decide whether or not to put it to Mr. Walsh.
Mr. Walsh has indicated that an order of the House would be equivalent to an order of the Superior Court, and this is what I would ask: is the summons of the committee equal to an order of the Superior Court also?
Law Clerk and Parliamentary Counsel, House of Commons
In the court context, a subpoena is a species of a court order but it's not the equivalent of an order by the court. Failure to respect a subpoena can give rise to a charge of contempt of court. In a similar fashion, a summons by a committee does not have the standing of an order of the House or an order of the court, but is a legal document and gives rise to legal obligations. Failure to comply with a summons could have legal consequences, but in the parliamentary context.
NDP
Pat Martin NDP Winnipeg Centre, MB
In the interest of time, Mr. Chairman, I'm going to pass because I think Mr. Walsh has answered the question I had.
Liberal
The Chair Liberal Paul Szabo
Thank you, Mr. Martin. We'll get to your motions very shortly.
Mr. Hiebert.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
Thank you, Mr. Chair.
I think most of my questions have been answered as well.
Just to clarify, the committee does not have the weight of the House of Commons in legal terms—not in political terms—with the summons it can issue. Therefore the authority we gave to the chair last week to proceed with requesting that Mr. Schreiber appear before this committee is insufficient at the present time. Is that what you're stating?
Law Clerk and Parliamentary Counsel, House of Commons
It depends on what you're attempting to do. It's not insufficient in law to create a legal obligation to attend, but it may be insufficient to go out and have someone arrested for not attending. You may need an order of the House, a Speaker's warrant, which in effect directs that the person be forcibly apprehended and brought here. But short of that, the summons is legally effective to cause someone to be legally obliged to attend before the committee.
Liberal
The Chair Liberal Paul Szabo
Thank you.
Mr. Walsh, under Standing Order 108(1)(a), the committee is empowered to call for persons, papers, and documents by the House of Commons.
Conservative
Mike Wallace Conservative Burlington, ON
Thank you, Mr. Chair. I'm going to direct my question to you, and you can help if need be.
I've gotten a little bit confused in terms of where we've gone on this. I think we've gone further ahead.
The motion that you were working under, as you say you are, said that it would be today “and/or” Thursday that Mr. Schreiber was asked to appear here. We have submitted a summons to him, prior to the December 1 date, which he hopefully received this morning in writing.
So if he arrives here on Thursday and we have our discussion with him, have we not then met the obligations of that previous motion, and all this discussion about whether we need to extend his stay or not is moot, because he is here on the dates that this committee actually passed that he be here? We actually passed that it would be either today or Thursday, and it was “and/or”.
Do we know that he is not showing up on Thursday?
Liberal
The Chair Liberal Paul Szabo
Either could happen.
I would like to refer you to the summons, which I signed and which we executed, pursuant to the instruction of the committee....
Order, please.
There's far too much noise in here, Madame Lavallée.
Yes, we dealt with “and/or” the 27th or the 29th. The committee expressed its concern that two hours at a meeting may not be enough—
Conservative
Liberal
The Chair Liberal Paul Szabo
Excuse me.
—and that more time may be needed. It's not in any motion, but we had also discussed that having Mr. Schreiber have an opportunity to have access to his papers and to do a review would be helpful to all. He would be more able to fulsomely—
Conservative
Liberal
The Chair Liberal Paul Szabo
Mr. Wallace, I'm going to let you rebut, have a second crack at me, but let me just finish off, because I think it's important.
We discussed that it's the intent of the committee that he should have had some time. It appears that he's not going to have very much time. The committee may decide that we want to keep him more, and it is the decision of the committee whether we want to go further. But I can assure you that the subpoena or the summons that I issued, that he'll appear no later than November 29 at 11 a.m. at a location to be determined, also includes the phrase, “and to remain in attendance until duly discharged”.
It basically means that this committee, under this document, can decide to call him back as long as it feels that it's important to have his testimony. That is still the committee's decision. We have not taken that decision, but it is up to the committee.
Conservative