Information & Ethics Committee on Nov. 27th, 2007

[Rob Walsh]

The sub judice principle is a convention in a parliamentary context where members of Parliament are asked not to make direct comment on a matter that's before the courts. It's not a legal rule in the sense that there are no legal consequences following from any failure to respect it. If I'm correct, it's not in the Standing Orders of the House, either. It's just a convention and a practice that members will respect the judicial function and not make what's going on there the subject of debate in the House.

You can interpret that narrowly and say we're going to talk about the Airbus affair, but that doesn't mean we're going to talk about any particular litigation that's going on that may have a connection with it. The sub judice rule is about the litigation itself, the case that's before the court. It's not about the subject matter writ large. It's about what's before the court, and you don't talk about that case. You don't talk about what may be going on in that case.

That's what sub judice is about, Mr. Chairman.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

My second question has to do with a comment that you made before the public accounts committee in 2004. At that point you expressed concern about the redundancy of the committee's study while a public inquiry was under way as well.

Do you still agree with the statement that you made at that time, that it would be redundant to have a committee study what a public inquiry is studying?

[Rob Walsh]

I'd like to see that statement that I made. Having said that, I'm not saying I never made any such statement. I may well have made a statement that talked about redundancy, because there clearly is a potential for redundancy where a judicial inquiry that's under way is seeking to get to the bottom of a situation while a House committee is doing the same thing. Obviously, there is redundancy.

Is that a reason for the committee not to do it? Not necessarily, in my view, because the committee's objectives are quite different from what a judicial inquiry's objectives are. The committee's objectives are ones of seeking out a certain amount of knowledge about the facts with a view to looking at what the broader public policy issues should be in dealing with that situation, whereas a judicial inquiry may have a narrower focus.

But yes, there is, understandably, a certain process redundancy when you have two bodies doing the same thing. But that doesn't mean necessarily that they shouldn't go forward.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

With regard to testimony, you also stated before the public accounts committee, and I quote:It cannot be referred to and used in other proceedings for any purpose whatsoever. It is fundamental that legal proceedings elsewhere cannot rely on, refer to, or cite testimony provided in the course of a parliamentary proceeding, and a committee proceeding is one of those.

Is it therefore the case that this committee study could evolve into a partisan political witch hunt with no particular purpose? Can you expand on your statement about not using the testimony before this committee for any other purpose, including a public inquiry?

[Rob Walsh]

That was attempted actually during the course of the Justice Gomery inquiry. There were lawyers who wanted to take testimony before the public accounts committee and use it in those proceedings. We appeared before Mr. Justice Gomery. He was a bit surprised and ultimately ceded to the fact that it could not be allowed. The testimony given before the committee cannot be used in those proceedings. That was upheld later, when it was taken to court.

I don't know about the partisan witch hunt you referred to; I don't know what the connection is there. But the idea is that witnesses before this committee, or any other House committee, have the assurance that they can speak fully and frankly without concern that they're going to be somehow challenged in a legal proceeding elsewhere based on what they said.

I might further add that in my view it includes the police. They can't use testimony here as a basis to conduct an investigation. If they take testimony from here and find evidence that's helpful for some criminal prosecution purpose, they may be denied the opportunity to use that evidence because it's tainted; it has its genesis in an unlawful use of testimony.

[The Chair, Liberal, Paul Szabo]

Madame Lavallée, s'il vous plaît.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Thank you.

Mr. Chairman, now that we know that we need a report in order for a warrant to be issued, how do you intend to proceed? The meeting should normally take 10 minutes, although, as you know, we can extend it at any time. I would like to know how we are going to proceed: where? when? how? Couldn't we start immediately so that it's done as quickly as possible?

[The Chair, Liberal, Paul Szabo]

Congratulations, Madame Lavallée, you are absolutely right.

The clerk and I have discussed this. I understand that Mr. Thibault, after discussion with Mr. Martin, has a motion that may be appropriate. I'd ask him to read the motion to see if the committee is prepared to entertain it.

We're going to continue with this, but in the event that time runs out, I want to be absolutely sure we have some authority of this committee to report to the House. We have to report to the House. That was the point.

Mr. Thibault, please go ahead.

[Robert Thibault, Liberal, West Nova, NS]

The motion is as follows:That the Committee report to the House recommending that the Speaker issue any necessary warrants for the appearance of Karlheinz Schreiber before the Standing Committee on Access to Information, Privacy and Ethics, as soon as possible and that he be available until discharged by the Committee.

[The Chair, Liberal, Paul Szabo]

That was, I believe, the intent of Mr. Martin: let's make sure that we don't get caught without having something to the House.

We've had this fulsome discussion. The intent is to report to the House. I am going to ask the members whether they would consider putting the question now....

All right.

Can you please read it again?

[Robert Thibault, Liberal, West Nova, NS]

That the Committee report to the House recommending that the Speaker issue any necessary warrants for the appearance of Karlheinz Schreiber before the Standing Committee on Access to Information, Privacy, and Ethics, as soon as possible and that he be available until discharged by the Committee.

[The Chair, Liberal, Paul Szabo]

That motion is in order. I am going to call the question now—

[An hon. member]

We need to have a discussion.

[The Chair, Liberal, Paul Szabo]

Well, we read it, and there was no indication....

Yes, Mr. Del Mastro.

[Dean Del Mastro, Conservative, Peterborough, ON]

Just for clarification, Mr. Chair, this committee does have a requirement for notice. This motion is being tabled without notice.

[The Chair, Liberal, Paul Szabo]

It is pursuant to the motion that was proposed here and ruled out of order. I believe it was the intent of the committee to report to Parliament so that Parliament will have the benefit of knowing what we've done and what is appropriate. We don't know that.

[Dean Del Mastro, Conservative, Peterborough, ON]

Okay, that's fine. No problem.

[The Chair, Liberal, Paul Szabo]

I'll call the question.

(Motion agreed to)

[The Chair, Liberal, Paul Szabo]

I appreciate your indulgence. We now have the basis to report to the House.

I apologize for interrupting. Mr. Wallace was on questions to Mr. Walsh.

[Mike Wallace, Conservative, Burlington, ON]

I just have two points of clarification. If we have witnesses before the committee who testify, and then there's a public inquiry—which we know is coming—is it true that what they say here cannot be used at the public inquiry?

[Rob Walsh]

That's correct.

[Mike Wallace, Conservative, Burlington, ON]

So they could say anything they want at committee and have no accountability for that when it comes to the public inquiry. They can be asked the same questions, I'm assuming, and give different answers; and the answers they've given here have no relevance.

Is that what you're telling me?

[Rob Walsh]

Mr. Chairman, the short answer is that the witness is as accountable as any member of this committee—public accountability...or contempt by the House, if the House found that they were misleading the House, which may be the case in the business of another committee. If they were found to have misled the committee, there might be accountability of the witness to the House, if the House finds they were in contempt.

[Mike Wallace, Conservative, Burlington, ON]

So if we find there's been different testimony in this committee from that at the public inquiry, this committee could move to find that individual in contempt of this committee?

[Rob Walsh]

Presuming the committee calls the witness back and says “Explain yourself.”

The problem, Mr. Chairman, that you have when you have two different versions and someone says to them, you said x here and you said y here, which is the truth? This is a serious problem in the whole area of perjury. Logically they both can't be true. The critical thing is not that one of them is untrue, but that the testimony given here was untrue.

Now, how are you going to prove the testimony over there was true and untrue here, except by saying, it was given at a judicial inquiry; therefore, it must be true. If you're prepared to say that, then you win; but I don't know that you can necessarily say that. And that's the problem with perjury: where is the truth?