Evidence of meeting #9 for Access to Information, Privacy and Ethics in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was laws.
A recording is available from Parliament.
Law Clerk and Parliamentary Counsel, House of Commons
No, it is not. The privilege is not owned by the witness. The witness is a beneficiary of the privilege, but it's the property of the House of Commons and its committees indirectly. Only the House of Commons can waive that privilege.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
A similar issue came before the Standing Committee on Procedure and House Affairs, and a similar process was undertaken. I believe the report that went to the House at that time had another clause that read:That the Speaker of the House of Commons be authorized to take such steps as he deems appropriate to defend the privileges of the House of Commons as they may be at issue before the Commission of Inquiry, or in such court reviewing any decision or anticipating decision of the Commission of Inquiry relating to the privileges of the House of Commons, its Members or witnesses.
Is that a crucial piece that we should have as part of this amendment? I'm wondering why it's not part of the amendment drafted before us. Does the Speaker need to have the House's authorization to pursue this matter further? Would that be a helpful thing for the House to make explicit?
Law Clerk and Parliamentary Counsel, House of Commons
When we put that clause in on that earlier occasion, we were somewhat in uncharted waters, in the sense that this has not been an approach that has been engaged in in living memory. So we responded by putting everything we thought might be relevant in there.
On this occasion, in my judgment, I think because of the benefit of that earlier precedent case—the situation with Justice Gomery's commission and going to the Federal Court and the Federal Court subsequently affirming those privileges—I don't anticipate there being those kinds of difficulties. In my view, it was adding a dimension to this particular initiative that would perhaps draw unwarranted attention to this process, so I thought it was quite safe to leave that provision out. I'm confident that should there be a further difficulty, either I could return to this committee or I could indeed consult the Speaker, and it may be a matter that would readily be taken care of.
I don't see with this commission of inquiry the same difficulties that we had with the Gomery inquiry. On the Gomery inquiry, we even had Justice Gomery expressing disagreement with, if not dislike of, the idea of his not being able to use this material, so I saw that as we need a little extra force in our order to make sure we do whatever is necessary.
I didn't know when I'd next see the House, at that time. I remember there was some uncertainty as to would I have the House with me at a time when something could arise, but I don't think that's necessary here.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Chair, the reason I raise it is that when I read the motion that's before us--and not being a lawyer, and it's in somewhat legalese--it seems rather bloodless, in the sense of there's no urgency about it. I believe that this is an extremely serious issue. We need to express our determination that it be followed up on and that kind of thing.
Now, I hear what Mr. Walsh is saying, that he sees a difference in circumstance. But I'm still uneasy about that, because it strikes me that the other paragraph makes it very clear that we're not going to let this go and that we think that should it work out differently, we want somebody, namely the Speaker, to be actively engaged in ensuring our privilege.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, if I could, I'll just respond in saying this.
First of all, you have the clause, apparently, in front of you, Mr. Siksay. I suppose by amendment it could be added. It wouldn't hurt the order to have that in there. I'm not objecting to it being part of the order. On the other hand, I don't know that we want the House to be unnecessarily aggressive vis-à-vis a commission. There's no evidence yet that this was ever going to happen; it's simply a request by the counsel. In that sense, it's a rather tame matter. Of course it could escalate to where it becomes more pressing, but I have no cause to believe that will be the case.
You might disagree with my judgment here, but I'm prepared to proceed more calmly, rather than unnecessarily escalate things.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
But by the same token, wouldn't the counsel for the commission have access to those precedents, to that tradition, to that discussion, and yet they went ahead and made the request anyway?
Law Clerk and Parliamentary Counsel, House of Commons
I think you're going to see lawyers still trying. We know of one. On the website, there's a submission already there, with some parliamentary material attached to it. I think they're anticipating this issue, and I don't want any time taken up with legalistic arguments being made. I suspect they want to get this clear and disposed of and they can proceed without any distractions in this regard.
I think it's good management on their part to do this, and it's good of the House to make that known to the commission before they start their hearings.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
I have a very straightforward question.
If we did nothing at all, we didn't respond to the request, it would be presumed that the commission could not use the testimony in this committee. Correct?
Law Clerk and Parliamentary Counsel, House of Commons
It ought to be presumed, but I would think that if, in matter of record, this letter having been received, and the House does nothing, counsel—
Conservative
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
—but there is some concern about whether or not the wording is tough enough. My understanding is that it is assumed that the testimony is not admissible in any other proceeding, even if we do nothing here. I'm not proposing we do nothing, but I'm just saying hypothetically.
Law Clerk and Parliamentary Counsel, House of Commons
That has been made abundantly clear by the Federal Court.
Law Clerk and Parliamentary Counsel, House of Commons
I fully expect that the judgment will be respected. I think for a matter of record, they would like to see this before—
Conservative
Liberal
The Chair Liberal Paul Szabo
I think the members are comfortable with understanding the motion and the intent and what's going to happen.
Shall I put the question, then?
Liberal
The Chair Liberal Paul Szabo
Okay.
It's a motion by Mr. Wrzesnewskyj, as circulated. It will be in full in our transcripts.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Chair, I'd like to propose an amendment. I'd like to test the committee's will on the issue that I raise.
Liberal
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Mr. Chair, I have a point of order.
The meeting is scheduled to end at 5:30. We are perfectly willing to let the business move through. That would solve the problem right here and now. But a number of our members have meetings we have to proceed to.