Information & Ethics Committee on June 10th, 2010

[The Chair, Liberal, Paul Szabo]

Order.

This is meeting number 20 of the Standing Committee on Access to Information, Privacy and Ethics. Our order of the day, pursuant to Standing Order 108(3)(h)(vi), is a study on allegations of interference in access to information requests.

Our witness today, from the Office of the Prime Minister--according to our agenda, circulated and on the web--is Mr. Dimitri Soudas, director of communications.

Colleagues, I have received this morning the latest report from the bailiff, Mr. Fox, who is with Kilrea Bailiff & Process Servers, who acted on behalf of the House of Commons in this regard. Mr. Fox states, as of today's date:

On June 9th and 10th I attempted to contact Mr. Dimitri Soudas to make arrangements to serve the Summons from the Standing Committee on Access to Information, Privacy and Ethics. I telephoned, spoke to reception, identified myself and informed her that I had a Summons to serve on Mr. Soudas on both occasions. I was placed on hold both times for a short period and when the receptionist returned I was informed he was unavailable.

I have yet to receive a return call from Dimitri Soudas, or from his office and am unable to effect service at this time.

So we do not have a witness today. As we discussed, we had a motion by Mr. Siksay, which was tabled, and also a motion from Madam Freeman with regard to civil implications, and also a new timeline, as it were, in terms of making one final request for the two witnesses, Madam Andrews and Mr. Soudas, to appear on or before June 16.

We do not have a meeting on June 16. Our last meeting would be June 15 vis-à-vis that motion. As a consequence, we are not going to be reporting to the House until the committee addresses this next Tuesday.

However, I have circulated to all the committee members an updated synopsis. It's really in the form of a report, if the committee wishes. This was prepared by the clerk's directorate. The format is basically to simply provide the facts related to the non-appearance, as would have been reported to us by the bailiff as well as our own personal attempts.

Really, the last two paragraphs are the operative ones. They simply indicate that, “In light of this matter”, the non-appearance of witnesses:

...the Committee has reason to believe that a potential breach of privilege has occurred.

Your Committee feels it is their duty to place these matters before the House at this time since a question of privilege may be involved and to give the House an opportunity to reflect on these matters.

Colleagues, the facts related to Mr. Togneri, Ms. Andrews, and Mr. Soudas have been laid out here in this one-page document, this one-page report, as prepared by the clerk's office, with the last two lines being standard language that has been used from other committees in similar circumstances. So we have a template that the committee can use should it wish to make the same or a similar report on the matter before us now.

On the agenda, you will note that we referred to this as the discussion of a draft report on the non-appearance of Sébastien Togneri, Jillian Andrews, and Dimitri Soudas. I am tabling or providing this to the members for purposes of that discussion and to determine whether or not this template and these details satisfactorily reflect the views and the opinions of the committee members, with a view to making all final changes and having it ready for the committee in final form for next Tuesday, for final consideration should the witnesses not appear.

So that is where we are right now. We're still on the first item.

I would like to welcome the Honourable John Baird, who has been signed in as a member of the committee.

On this matter, as we indicated, and on the discussion of the draft report or the template or reform of a draft report, I would like to have the members' opinions and instructions with regard to where we're going from here.

I have a list.

Madam Freeman, would you like to defer until you look at that sheet?

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Yes.

[The Chair, Liberal, Paul Szabo]

Mr. Siksay, go ahead then.

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

Thank you, Chair.

I think it would be helpful if you made a clear declaration for the record that Mr. Soudas hasn't appeared this morning, as he was summoned to. I'm not sure I heard you say that, so I hope you will do that, so we're clear on the record that he isn't here this morning, unfortunately.

[The Chair, Liberal, Paul Szabo]

Mr. Soudas isn't here this morning.

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

Thank you.

[The Chair, Liberal, Paul Szabo]

What a surprise!

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

Chair, this is a very helpful draft, and it looks good to me. There is one tiny point, a minutia. At the end of the paragraph dealing with Mr. Togneri, it says “even if he was not duly discharged”. I'm wondering if “if” is the right word; maybe “even though he was not duly discharged”. Maybe that's an editorial change that could be made.

Chair, I think it's a very serious issue that the committee has been thwarted in its attempts to have the people appear who have the information that we believe will be helpful to our study on political interference in the Access to Information Act.

I think it's extremely troubling that Mr. Soudas isn't here. I think it's unfortunate that he's been told not to appear by his boss and by the government. I think we have to pursue this, and I believe the template you've provided will be very helpful to us when we decide on this matter on Tuesday.

Thank you, Chair.

[The Chair, Liberal, Paul Szabo]

Thank you.

Madame Freeman, s'il vous plaît.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Mr. Chair, we see that Mr. Soudas is indeed absent this morning. We have the document you handed out. I want to point out that it is extremely embarrassing for Parliament when a witness who has been duly summoned.... We voted on a motion on this matter on June 8, on Tuesday. And this witness did not appear. He is turning his nose up at all the laws that govern the country. Before preparing this motion, I worked with the House of Commons' law clerks to get a clear understanding of all the various legal avenues available in this situation, which I would describe as quite unique. I also worked with the committee clerk.

Mr. Chair, I would like to move that we hear from Robert Walsh next Tuesday; he is a law clerk who would be able to explain to the committee the exact legal implications when a witness fails to appear before the committee. In fact, he could speak to all the legal aspects involved in such a situation.

I find this situation very peculiar. Mr. Soudas is a member of the Prime Minister's staff. Mr. Harper sent us a letter saying that his employee would not be appearing before the committee. I have the chronology of events here. On May 25, Jay Hill made his statement before the House. On May 31, Christian Paradis, the minister, sent us a letter to say that Mr. Togneri and Ms. Andrews would not be appearing. On June 1, Prime Minister Harper sent us a letter saying that Mr. Soudas would not be appearing. On June 8, I prepared a motion to compel Mr. Soudas to appear given that he had already received a summons to appear. Once again, he did not appear.

As parliamentarians, we are in a very peculiar position here. A prime minister, knowing that a member of his staff has been summoned by law to appear before the committee, is not doing anything. How is it that the Prime Minister, whose government wraps itself in the cloak of law and order, is not encouraging his employee, either directly or indirectly, to comply with the orders of this House of Commons' committee?

That kind of attitude is an obstruction of justice and is subject to sanctions under the Criminal Code. Section 139(2) of the Criminal Code says, and I quote:

(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Therefore Dimitri Soudas and the three witnesses could be found to be in contempt of Parliament. What is more, Mr. Harper, himself, is contravening the law, pursuant to section 139 of the Criminal Code. Given this situation, I think that Robert Walsh, the senior law clerk of the House of Commons, should appear next Tuesday to explain to our colleagues the implications of the wrongdoing committed by Mr. Soudas, Mr. Togneri and Ms. Andrews, as well as their respective employers. Given that these employees received a summons to appear before the committee, encouraging them not to appear constitutes an obstruction of justice under the Criminal Code. I am referring to section 139 of the Criminal Code, which states that this offence is liable to 10 years of imprisonment.

Thank you, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

Okay. The motion certainly is in order.

Madame, I want to be sure. You said to report on the effect of the non-appearance and consequences.... I'm not sure Mr. Walsh would be in a position, nor would it be advisable for him, to speculate on what might happen should the House deal with this. In fact, as we discussed at the last meeting—as I indicated to you—this committee will not be making any determinations as to what these circumstances.... It is up to the House to make that.... We have no authority to sanction or to censure any person, any member or witness, and that's why we have to report to the House.

One option I would suggest, Madame Freeman, is that if you wish, we certainly could have Mr. Walsh provide us with a summary of the possible impacts. I'm not sure it's going to help the committee with its report.

I want to go back to you so that you can respond. I see that you would like to—

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

With all due respect, Mr. Chair, I have to say that on Monday evening I had the chance to speak with the law clerks long enough to prepare my motion. I spoke with them Tuesday, and I have just spoken with them again. I have to tell you that what they told me was very enlightening indeed.

There are a number of options. I will not get into them all. That is why I think it is crucial that Mr. Walsh appear before the committee to explain all of them, rather than simply sending us a report. Today, we could ask the Sergeant-at-Arms to carry out the order of finding Mr. Soudas and arresting him. So there are a number of avenues we could explore. That is why I think we should hear from this expert, Mr. Walsh, so he can explain them to us. It is not speculation, in fact quite the opposite; it is the law. I do not think the committee can afford not to hear his testimony. It is absolutely imperative that Mr. Walsh explain those options to us.

After reviewing them for so long, I am familiar with all the procedures and all the various options available to us to carry out our.... There are two sides to this. There is the parliamentary side, and right now, there is more than just that aspect: they are defying the law. So there is the criminal side. We have these two sides, and they are interrelated.

I put forward my motion after meeting with the law clerks and working with the committee clerk, to ensure that both sides—legal and parliamentary—are perfectly compatible, as well as fair and accurate. I know exactly the kind of motion I moved, and I know exactly the consequences of failing to comply with that motion and the summons to appear received by Mr. Soudas.

That is why I am asking the committee to hear from Mr. Walsh: so he can explain the exact legal implications of this situation and obviously the parliamentary ones.

[The Chair, Liberal, Paul Szabo]

Okay. So the members understand, the member wants Mr. Walsh to explain not what we can do but what the House can do.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Sorry, I did not understand.

[The Chair, Liberal, Paul Szabo]

As I indicated, we don't have any authority to sanction or to recommend that someone be put in jail or whatever. We refer it to the House.

Mr. Walsh will—I understand you clearly—

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

No, I will speak slower.

[The Chair, Liberal, Paul Szabo]

Mr. Walsh would be able to tell you that, for instance, you could send the Sergeant-at-Arms to go and get him and bring him to the bar, and he would have to answer questions in the House, and all these things. Is that what you want--

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Listen carefully, sir, with all due respect. I will speak slower, as my colleague tells me the interpreters are having trouble following me. So I will speak slower to make sure everyone understands.

I just said that when I prepared my motion, I asked the law clerks to explain to me the potential consequences for witnesses who are compelled to appear before the committee by subpoena. I prepared my motion in collaboration with the law clerks and the committee clerk. Okay.

That said, like Mr. Walsh, we know full well that there are many legal implications. There is the parliamentary aspect, but there is also another. We cannot separate the two. There is Parliament, yes, but given that a subpoena was issued, there are also legal implications, and the Criminal Code is being violated, as we speak.

So I think it is absolutely critical that we meet with Mr. Walsh. Let him come here and explain the situation to us. We cannot speculate if we have not heard from the witness.

[The Chair, Liberal, Paul Szabo]

I think all the members understand now, Madam Speaker—I mean, Madame Freeman. Thank you.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Thank you.

Madam Speaker? Thank you!

[The Chair, Liberal, Paul Szabo]

You could be Speaker one day. Why not?

[John Baird, Conservative, Ottawa West—Nepean, ON]

I would vote for her.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Thank you, Mr. Baird.

[The Chair, Liberal, Paul Szabo]

All right. Madame Davidson, please go ahead.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you, Mr. Chair.