Information & Ethics Committee on June 3rd, 2010

[The Chair, Liberal, Paul Szabo]

This is the 18th meeting of the Standing Committee on Access to Information, Privacy and Ethics. The orders of the day, pursuant to Standing Order 108(3)(h)(vi), are a study of allegations of interference in access to information requests--more specifically, the motion by Mr. Easter to investigate the systemic political interference by ministers' offices in blocking, delaying, or obstructing the release of information to the public regarding the operations of government departments.

Our witness for this morning is Mr. Sébastien Togneri, former parliamentary affairs director, Department of Public Works and Government Services, who now works in Natural Resources Canada in a similar role, I understand.

I received, after our meeting last Tuesday, a letter from the Minister of Natural Resources, who was the Minister of Public Works and Government Services at the time, to indicate that he would be here in lieu of Mr. Togneri.

The committee will know, and we don't have to refer to any citations, that the committee has the right to call for persons, papers, or records. I would indicate that with regard to the Afghan detainee documents, the Speaker ruled on April 27, 2010, that the role of parliamentarians to hold government to account is an indisputable privilege and obligation. I would also cite The Power of Parliamentary Houses to Send for Persons, Papers and Records: A Sourcebook on the Law of Precedent of Parliamentary Subpoena Powers for Canadian and other Houses, by Mr. Derek Lee, lawyer and member of Parliament, specifically from page 108. It is a precedent, and I would just summarize the resolutions that are applicable to us: the House has the power to send for persons, papers, and records and therefore may summons any resident of the country; and that obstructing or tampering with a witness is a breach of privilege of the House or of its committees who have the delegated authority.

I can indicate to the committee that I've had brief discussions with the Speaker and the law clerk and have consulted with the committee clerk's directorate on the options available to the committee. Indeed, where we have a situation where a witness refuses to appear, the precedents are that the committee does not have the power to censure or to punish any person, according to O'Brien and Bosc. They state that:

Only the House of Commons has the disciplinary powers needed to deal with this type of offence. If a witness refuses to appear, or does not appear, as ordered, the committee's recourse is to report the matter to the House. Once seized with the matter, the House takes the measures that it considers appropriate.

This is according to O'Brien and Bosc in the second edition of House of Commons Procedure and Practice, page 977.

From page 976 of O'Brien and Bosc, I would also point out that for any member of the House of Commons, including ministers,

There is no specific rule governing voluntary appearances by Members of the House of Commons before parliamentary committees. They may appear before a committee if they wish and

—and I stress “and”—

have been invited. If a Member of the House refuses an invitation to appear before a standing committee and the committee decides that such an appearance is necessary, it may so report to the House...

In summary, the committee has to determine whether it is necessary to report to the House on the non-appearance of Mr. Sébastien Togneri.

Mr. Poilievre, on a point of order.

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

You've cited a whole series of rules and precedents that do not apply to the facts of this particular controversy. Seconds ago you said that we're dealing with the non-appearance of Mr. Togneri.

[The Chair, Liberal, Paul Szabo]

Yes.

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

In fact, this committee passed one motion to invite Mr. Togneri, for which he appeared twice. In other words, he has appeared and has fulfilled that motion.

There is a separate and broader debate, I acknowledge, about whether or not staff members should replace ministers in the future. But that said, the witness has appeared.

I know you are going to say that you have not released him, but in my entire time as a member of Parliament, over five and half years, I have never seen a chair release a member from testimony. In fact, the committee asks its questions, the time expires, the witness leaves, and the matter is done.

If a chair were required to release every single witness, then that has not been the practice around this place for at least the last five years. Otherwise, every single witness who has stood up and walked away from their chair is still involved in pending testimony, as we speak, because they have not been formally released.

The committee asked him to appear. Not only did he appear once, but he appeared twice. If there were any irregularity it was in the fact that he appeared more than the committee asked him to. So if the committee wants to hear him again, they would have to move another motion inviting him to come back to the committee. So far that has not happened. Therefore, we cannot move on to a discussion about his non-appearance when in fact he appeared twice and gave very exhaustive testimony both times.

[The Chair, Liberal, Paul Szabo]

Okay.

[Luc Desnoyers, Bloc, Rivière-des-Mille-Îles, QC]

A point of order, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

We're on a point of order. You can't do that.

Mr. Easter, on the same point.

[Wayne Easter, Liberal, Malpeque, PE]

I think the difference, though, Mr. Poilievre, in this case, is that the chair did specifically state at the meeting that Mr. Togneri was not released from that summons. He specifically stated that. Therefore, I believe he's still under the summons.

[The Chair, Liberal, Paul Szabo]

All right, we're getting into debate on facts.

Mr. Poilievre, the summons issued for Mr. Togneri states particularly at the end that the witness remain in attendance until duly discharged, and that's why he appeared a second time. In fact, we had not completed with him and indicated after a second appearance that more members had questions and we wanted to hear from him. He is, as you can see, on our agenda for the day. He is the witness this committee called for today.

So Mr. Togneri is our witness. The rules of practice and procedure indicate that for a witness who refuses to appear—the summons is another element to it, but even if he had no summons—the committee cannot take any sanctions or censures against such a person. It has no authority to do so. Its only option is to report the facts to the House, and it would be the House...

Since we are only a fact-finding body and we don't have that authority, I want to give the committee an idea of the information passed on from the clerk directorate, which oversees all the operations and has the experience. In its suggestion, the report would say something like:

On Thursday, April 1, the committee agreed, pursuant to Standing Order 108(3(h)(vi)) and the motion adopted by the committee on the same day, to undertake a study on allegations of interference in access to information requests.

In the course of this study, the committee chose to invite Sébastien Togneri to appear before it. ... Sebastien Togneri appeared before the committee on May 6 and May 11, 2010. However, he refused to appear at the June 3 meeting.

In light of this matter, the committee has reason to believe that a potential breach of privilege has occurred, and on Thursday, June 3, 2010, the committee adopted the following motion...

That motion would be that we report it to the House. That is a suggested route. However, this does not occur without the committee making the determination that we should do it, that it is necessary to report.

Because the members don't have this, and in view of the seriousness of it, I don't believe it's urgent for us to deal with this right now, but I suggest we circulate this and allow the members to make the necessary inquiries or to look into it and to prepare to have that discussion about whether we report to the House and what we report to the House. That is the decision of the committee.

I would propose that we deal with that at our next meeting, which would be next Tuesday.

We have, as I had indicated...

Mr. Desnoyers, on a point of order, sir?

[Luc Desnoyers, Bloc, Rivière-des-Mille-Îles, QC]

Yes, Mr. Chair.

As a follow-up to your statement, I think it is important to take note of what you said the committee can do. It can report to the House of Commons, as you mentioned. I think it is important and urgent for us to prepare that report. Currently, as you know, various committees are being subjected to practices and rules in an attempt to impose on committees rules that do not exist. Using its ministers, the government wants to impose those rules and step in here.

[The Chair, Liberal, Paul Szabo]

No, no. Order, please.

[Luc Desnoyers, Bloc, Rivière-des-Mille-Îles, QC]

I just want to finish.

[The Chair, Liberal, Paul Szabo]

Monsieur, order, please.

Respectfully, Mr. Desnoyers, you are in debate. This is not a point of order.

I'm going to move on. Now, I did indicate that I received a letter from the Minister of Natural Resources, in which he said he would like to appear.

Yes.

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

Mr. Chair, a point of order.

I think the member does have a point. I do appreciate that his point probably isn't very favourable to my point of view, but at the same time, he does have the right to express it. I would hope that you, as chair, would allow him to exercise the privileges he enjoys as a member.

[The Chair, Liberal, Paul Szabo]

That is not a point of order, Mr. Poilievre. That's debate.

Now, the minister did write and offer to appear in place of Mr. Togneri. The committee cannot proceed that way. However, the members have also received a motion from Mr. Easter.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

On a point of clarification...

[The Chair, Liberal, Paul Szabo]

I'm sorry, I'm not familiar with that.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Point of order then, for clarification purposes.

I'm not a novice when it comes to sitting on committees, but I'm certainly new to this committee. It is my understanding, through all of the committee work I have done, that when a member has a point of order and wishes to speak, he be given the right to do so.

Mr. Desnoyers has been patiently waiting with his hand up, trying to get your attention. I'm just trying to suggest to you that in the interest of fairness, we hear the member opposite here.

[The Chair, Liberal, Paul Szabo]

Okay. Thank you for that.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Is that the way this committee operates, that the chair determines over the rights of a member as to who speaks and who doesn't?

[The Chair, Liberal, Paul Szabo]

I will try to make rulings in accordance with the rules of the House.

I did listen to Mr. Desnoyers. He was giving reasons, but I didn't hear a point of order. That's all. I did not hear a point of order. I think you have to start by showing what the point of order is first.

Mr. Desnoyers, if you could indicate to the committee what the nature of your point of order is before you argue it... Comprenez-vous?

All right. I will give you back the floor if you believe... The members seem to think this to be a point of order, so please...

[Luc Desnoyers, Bloc, Rivière-des-Mille-Îles, QC]

That is kind of you, Mr. Szabo. I greatly appreciate the fact that you are now giving me time to have my say. I had about 22 seconds in which to do it and you interrupted me. I find that unfortunate. But you gave people on the government side a huge amount of time.

You reported to the committee about the various means at our disposal. I have to tell you at the outset that we approve of your comments on this point of order. The committee may report to the House to make sure that the people come to testify. They are committing contempt, because they have been summoned to appear, and they are not here. That includes Mr. Togneri. Two others have not replied to their summons. Even the bailiffs were not able to reach them.

This is an affront to the committee, Mr. Szabo. You can say what you like, you can say that it is not a point of order, but I still think that this committee has a right to require those people to appear. It appears clearly in O'Brien and Bosc's book. Let me refer you to page 1063, which is important and which you should read. You yourself have mentioned the book on several occasions.

Mr. Chair, I am convinced that you should move on to the next stage, which is the draft report...

[The Chair, Liberal, Paul Szabo]

Is there a point of order?

[Luc Desnoyers, Bloc, Rivière-des-Mille-Îles, QC]

...to submit to the House, Mr. Chair. I believe that we have reached that point, because these people are refusing to testify.

[The Chair, Liberal, Paul Szabo]

Okay. I've heard your statement, sir. Respectfully, I didn't hear a point of order, but you've had your time.

Mr. Siksay, on the same point.