Information & Ethics Committee on March 11th, 2009

[Stanley Tromp]

Thank you very much for this opportunity. I'm honoured by it. I know your time is very valuable.

I have nothing more to add at this moment. The report speaks for itself. I humbly ask the Prime Minister to enact his very enlightened promises on ATI Act reform he raised in 2006. If fulfilled, these would mainly raise Canada to the global standards.

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you again to all of you. We very much appreciate your participation in this consultation. You are all now excused.

We're going to proceed with some other committee business at this time.

Colleagues, as you know, I raised with you a matter related to correspondence coming from the Oliphant inquiry on the Mulroney-Schreiber inquiry, related to parliamentary privilege issues. I think there have been some discussions, and materials have been circulated to you. We now have the 48-hour notice, and I believe the motion is formally being submitted by Mr. Wrzesnewskyj.

Do you care to move that motion, Mr. Wrzesnewskyj?

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Yes, I do.

[The Chair, Liberal, Paul Szabo]

Okay.

It is moved as circulated to the committee, rather than being read in. That's okay?

Mr. Poilievre.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

The motion from Monday?

[The Chair, Liberal, Paul Szabo]

The one that was just put in front of you with the other package. It's a little bit different. There are a couple of changes.

We have Mr. Walsh and Mr. Tardi.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

There's less, as opposed to more.

[The Chair, Liberal, Paul Szabo]

There's less. It's a little tighter.

Mr. Walsh and Mr. Tardi are here. I believe Mr. Walsh has a very brief statement to make to the committee to clarify exactly the reason for and the intent of the motion he helped to draft for the committee's purposes.

Mr. Walsh, please.

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chairman.

The motion you have before you now is an edited version, if you like, of the one you might have seen a few days ago. On further examination, we found it had a lot of repetition, so we brought it down to a smaller size.

Mr. Chairman, the material I've asked the clerk to circulate to committee members, which I believe has been done, contains correspondence on this matter and also a decision of the Federal Court dealing with the privilege of testimony before committees not being subject to consideration in other legal proceedings. The correspondence began last August 12. At that time, a letter was received from the commissioner seeking various documents from the committee. I took the matter under consideration, and we had some discussions with the commission. I answered the letter on September 15, but we were into an election by that time, so it never came for consideration before the committee, but I give it to you today by way of background as to what happened.

Then you have the letter most recently of March 6 received from Ms. Brooks, the lawyer at the commission, in which they are in effect seeking permission to use the transcripts. It's apparent from the letter, in my view, that what we're looking at here is a situation similar to the one we had with the Gomery inquiry in which lawyers sought to use testimony of witnesses before the committee for purposes of cross-examination of that witness when the witness appeared before Commissioner Gomery.

Without getting too legalistic here but just to explain, what you're talking about here is that the lawyer will try to use previous sworn testimony to discredit the testimony now being heard at this later point in front of the commissioner. In effect, the lawyer says to the witness, “you're saying this today, but look what you said before when you were sworn to tell the truth”. You do a lot of this sort of thing, and eventually, the lawyer certainly hopes, the credibility of the witness is diminished, to say the least, and hopefully the lawyer will have enabled that witness's testimony to be discredited.

So I anticipate--and this is my own speculation here, but I think it's sufficiently apparent from the letter from Ms. Brooks--that probably is what the lawyers before that commission may seek to do with respect to a few of the witnesses who appeared in front of this committee. I don't need to name to you which witnesses those would be, but I expect members can surmise that.

To that end, it is necessary and it's part of the process that we come to this committee and seek the committee's decision. The decision then goes from the committee to the House. The House is asked then to affirm the committee's recommendation, which would then be reported to the commission, and it would be clear on record for the commission what the response on this issue is.

I might just add that I have reason to believe--and I guess it is speculative--that what the commission counsel is trying to do here is get this issue off the table, in effect, so that it doesn't come up and take up the time of the commission with lawyers arguing about wanting to use parliamentary testimony for purposes of cross-examination. I suspect the commission counsel, in preparing for the start of hearings--which I think will be at the end of this month--wants this issue closed off and dealt with. In anticipation of that, they've started this process, so I'm here today.

I don't want to take up any more of the committee's time than necessary, given the hour, but I do recommend to committee members.... I'm prepared to read to the committee members the salient points of the judgment of the Federal Court where they affirmed this privilege. I have distributed an English version and a French version of the judgment. It's a very good judgment, not simply because it says what I would want the court to say, but because it also is a very thorough treatment of the importance of the right of parliamentary committees to not have their testimony questioned elsewhere in courts. It's a very good read. I won't take up your time going through that, but it is an important consideration. It arose in the instance where Minister Gagliano, who was a witness before Justice Gomery when this ruling was made by Justice Gomery, went to the Federal Court seeking judicial review on that point and was unsuccessful. The court held that it was quite proper and understandable that the committees would want to see to it that the testimony of witnesses before them not be used in other proceedings.

Let me just add, though, and I'm sure this must have occurred to committee members, but for the record I suppose I should say it. Were it the case that this committee were to allow this testimony to be used by this proceeding or any other proceeding, I would venture to say that it would be very hard in future for this committee or any other committee to give assurances of protection to its witnesses. I suspect witnesses would not take that assurance seriously, and that would then bring along, in the case of high-profile witnesses, a battery of high-priced counsel ready to argue why the client should not have to answer the question of the committee.

In my view, it is very much in the interest of committees to keep their business within their four walls and enable the witnesses who come before committees to speak freely and openly on the matters of interest to the committee. The committee should be able to insist that witnesses speak freely, openly, fully, frankly, and truthfully, and not have any concerns that what they say will be used against them in some other proceedings.

So as your legal counsel, I can only urge the committee to give every consideration to this motion, in the hope that this principle will once again be sustained in the interest of this committee and all committees.

[The Chair, Liberal, Paul Szabo]

At this point I want to be absolutely sure that all honourable members understand what is before them and what is being asked. I think Mr. Walsh has said that if we adopt this motion I will go to the Chamber for routine proceedings tomorrow morning and table it from the committee. Because we're going to be on break, I will probably also be seeking the unanimous consent of the House to adopt or concur in the report without debate. Mr. Walsh will then be in a position to take the report adopted by the House and fully respond to counsel of the Oliphant inquiry.

Are there any questions by honourable members to me, Mr. Walsh, or Mr. Tardi?

Madame Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you.

Good afternoon, Mr. Walsh. If the committee agrees to this motion, will the remarks made in the House on this matter be subject to the same requirement? Does the motion concern only what has happened in committee or does it include comments made in committee that are repeated in the House of Commons? In that case, the comments in the House of Commons can be used.

[Rob Walsh]

The same privilege applies to the House and to the committee.

[Maria Mourani, Bloc, Ahuntsic, QC]

All right. So the privilege we have in the House is transferred to the committee. That's the purpose of the motion.

[Rob Walsh]

Yes, but it is the House that has the authority to state that there is a privilege. The committee can send a recommendation to the House, but it is up to the House to state—

[Maria Mourani, Bloc, Ahuntsic, QC]

It is up to the House to decide whether it accepts it.

[Rob Walsh]

That's correct, but the privilege applies to both the committee and the House.

[Maria Mourani, Bloc, Ahuntsic, QC]

So the comments can be used in any other context, except in the courts.

[Rob Walsh]

No, the principle derives from section 9 of an English act that dates back to the 21st century, but it is a constitutional principle in Canada. No tribunal, commission of inquiry or other legal process may conduct investigations into comments made in the House or in parliamentary committees.

[Maria Mourani, Bloc, Ahuntsic, QC]

All right. Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Siksay.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Chair.

Mr. Walsh and Mr. Tardi, I just want to be clear we're not saying that the area of inquiry the committee undertook is out of bounds to the commission. This means they will have to establish those facts on their own, without reference to the work that was done in committee. Am I correct about that?

[Rob Walsh]

That's quite correct, and I recall once before having to make the point to a committee that the subject matter is not privileged; it's the testimony before this committee and the remarks the members of this committee make in the course of the committee proceedings that are privileged. But the subject matter is certainly available to this commission or any other court to look into.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

The commission seems to be seeking that we waive our parliamentary privilege over that entire body of testimony. Is that correct?

[Rob Walsh]

Potentially, yes, that's correct.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Now, is it possible that the commission could approach individual witnesses and ask them to waive their individual rights to parliamentary privilege?