Information & Ethics Committee on June 15th, 2010

[The Chair, Liberal, Paul Szabo]

Order.

This is the 21st meeting of the Standing Committee on Access to Information, Privacy and Ethics. Orders of the day, pursuant to Standing Order 108(3)(h)(vi), are a study on allegations of political interference into access to information requests.

Our witnesses today are witnesses from the House of Commons. Mr. Rob Walsh is the law clerk and parliamentary counsel. Colleagues, he's asked, and I've agreed, to allow Mr. Greg Tardi, parliamentary counsel, to also be at the table to assist in the provision of information to the committee members.

I would indicate to the committee that there is a matter going on in the House that may trigger a half-hour bell and a vote. I thought it would happen earlier, but it didn't, so we're going to carry on as long as we can, and maybe we'll get through this. It has to do with the Afghan detainee documents, and there's extensive debate going on at this time.

Welcome, gentlemen, to the committee. As you know, the committee has been conducting a study. As a consequence of some of the matters that have transpired during the study, the committee requested that you appear to provide us with information to guide the committee or to answer questions with regard to parliamentary or in fact legal ramifications of failure to appear before a committee, whether it be on invitation or even by summons.

Having said that, Mr. Walsh and Mr. Tardi, I would entertain any brief opening remarks you care to make to put some context to your role or to provide information to the committee.

Please proceed.

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

Thank you, Mr. Chairman.

By way of explanation, I would add that I asked Greg Tardi to join me as he monitors these kinds of things in the office on a daily basis, and I thought he might be able to fill in some of the gaps I may inadvertently leave.

Speaking generally, I do not have a prepared statement of a kind that might be distributed, given that it was only the end of the day on Thursday that I got notice to be here. I can speak generally, Mr. Chairman, to the following effect with regard to the consequences that might flow from a potential witness failing to attend when invited in one instance and summoned in the other.

The answer in the first instance is very short. Where they're simply invited and they don't show up, you might say that's not very nice, and then you have to go to the next step. It could be an accident or an inconvenience or whatever that caused the person not to show, but it's not necessarily something to be taken seriously as a matter of procedure. However, when the person is summoned by the committee, then push is coming to shove. If the witness does not attend, there are steps a committee could take for the failure of the person to attend, pursuant to the summons. Those steps essentially are ones of reporting to the House. The report should set out in some detail the events as they transpired, and once that report is in the House, then it's available to the chair on behalf of the committee, any member of the committee, or any member of the House, arguably, to rise and raise a point of order or a point of privilege, as the case may be, based on that report. In the absence of that report, with such a point of order or a point of privilege the Speaker has nothing to which he can refer or take into account. So it is essential that there be a report of the committee to the House as a first step.

I suppose of interest to committee members is, then what? Then you get into uncharted territory, to some degree. If a point of privilege is raised in the House based on the report of the committee, the privilege point presumably would be that the failure of the person in question to show up, pursuant to a summons, was a contempt of the House and its committee. That point would be argued. If the Speaker were to rule that prima facie it is, a motion could be made. What's in that motion?

A motion could be that the person be directed to appear at the bar of the House and explain why he or she did not attend, pursuant to the summons. On the other hand, first of all, the motion could be that the person be not found in contempt but be called to appear before the bar to explain why he or she did not attend. There could then be a motion of contempt following that, depending on whether the House was or was not satisfied with the explanation provided by the individual.

On the other hand, the motion could be one of going directly to contempt without calling on the person to appear before the bar. Then there are what you might call extraparliamentary avenues, which I mention because I must as a legal adviser. They are fraught with complications and improbabilities, such that I wouldn't put much faith in ever going that route. Particularly, I'm talking about section 139 of the Criminal Code, which applies to proceedings of the House and the Senate and where a person interferes in some manner with the proceedings so as to obstruct justice, interfere with a witness, whatever. There could well be proceedings brought against that person. It may not be the person who didn't show up pursuant to summons. It may be some other third party who was instrumental in causing that person to not show up.

You must remember with a criminal charge that you are faced with some very strict evidentiary burdens, one of which is that the person had the intent to interfere or obstruct the proceedings of the House in undertaking the actions that he or she did. Of course, he would have to prove such actions were undertaken with that intent in mind.

I don't want to raise unnecessary red flags here, but there is also a legal argument in such a prosecution where the person...let's suppose for a moment it's a member of Parliament, a minister of the crown, or a third party, who is charged with this obstruction of justice. It could be argued that the actions that individual did were with lawful excuse as a defence. I'm not unaware of the fact that this issue has been discussed in the context of the position taken by the government that political aides to a minister can be withheld from a committee as witnesses by the minister insofar as the minister is responsible to account to Parliament, not the political aide. That rationale could be used or argued as a lawful excuse for why it is that the minister, if that were the case, gave directions to the witness to not show up. Would it survive the test in court? I would argue that the issue would need to be dealt with by the House before the matter went to court and the House would have to decide whether it is or is not a lawful excuse.

The package that would go to the Attorney General of Ontario, the crown counsel office, would include the record showing that the House had made that determination. If the House said it was a lawful excuse, then presumably there would be no reference for purposes of prosecution under section 139. If the House said it was not a lawful excuse and was of the view there was interference, the kind to which section 139 applied, then directions would go to the crown counsel office where there is a discretion. That office may feel, on the information it has, that there isn't enough evidence to probably obtain a conviction and it may choose not to prosecute.

So it's not a matter entirely in the hands of the House as to whether there is or is not any extraparliamentary legal remedy available to deal with the situation of a witness not showing up. Primarily it's a matter for the House to deal with as it relates to its own proceedings. As I said, once the procedure goes forward in the House, it's a matter of debate and a matter of a vote at the end of the day—well, first of all, a ruling by the Speaker prima facie, and if there is such a ruling, then it's a matter of debate and a matter of a vote in the House as to what the outcome will be.

That's the extent of my opening statement--generally, what are the consequences of a person not attending as a witness when summoned. There are no significant consequences to talk about when they don't show up when they're only invited, as I said, but certainly when they're summoned, there can be consequences, largely of a parliamentary nature as opposed to an extraparliamentary legal nature.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Walsh.

It might be helpful to the committee if you could amplify just a little bit. As you know, committees are fact-finders, and this relates to the evidence.

You referred to “evidentiary burden”. Could you give us an idea of the scope of things that would constitute evidence for that purpose?

[Rob Walsh]

The best answer there is to actually look at section 139, where it sets out what's required in terms of the “evidentiary burden”, as you call it. In any criminal offence, of course, you have to prove the person did the deed that is prohibited by the Criminal Code provision.

This provision, in section 139, provides that

Every one who wilfully

—I'll come back to that in a minute—

attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,

—and it sets out two possibilities—

by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or

That's subsection 139(1), which really doesn't apply to the situation we're dealing with.

I should read subsection 139(2):

Every one who wilfully attempts in any manner other than a manner described in subsection (1)

—because that deals with sureties—

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.

And then subsection 139(3) goes on to offer some illustrations of what that means. It says:

every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding,

—which, by the way, is defined in the Criminal Code as including a committee proceeding—

existing or proposed,

(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;

(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or

—that doesn't apply here—

(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror.

As a matter of interpretation, one of the problems the language suggests to you is that when it says “threats, bribes or other corrupt means”, you have to be thinking in terms of corrupt threats, corrupt bribes—bribes by definition are corrupt, I suppose—or other corrupt means, as opposed to a conversation that might take place where remarks are made to the witness about whether he or she should think twice about attending. These kinds of remarks may be characterized—“may”, I'm saying—as not being corrupt.

But the further evidentiary problem goes back to the use of the word “wilfully”. Were those remarks made with the intention of trying to prevent the person from appearing in front of the committee? Those are the evidentiary burdens. You have to prove them. You have to prove, in my view, the corrupt nature of the interference and that it was wilfully intended to interfere, as opposed to some remark made in passing that, taken out of context, would not support that kind of charge.

[The Chair, Liberal, Paul Szabo]

I think that's helpful to the committee.

We'll go to questioning. I have Mr. Easter, Madam Freeman, and Mr. Siksay.

Mr. Easter, you have seven minutes.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Chair, and welcome, folks.

As you know, Mr. Walsh, we are having considerable difficulty as parliamentarians getting at least three witnesses before this committee. We believe it's very serious. In order to do our duty to Canadians and gather information on the actions of certain people within the government--who do indeed work for ministers, and in one case the Prime Minister--we need to hear from those witnesses to do a proper inquiry and make some decisions.

As you're also aware, I believe the ministers in the government are using the excuse of ministerial responsibility to prevent the witnesses from getting here. These individuals now seem to be in a Conservative witness protection program to prevent us from getting access to them.

In any event, I have a couple of questions. You touched on this in your remarks, but what are the penalties for failing to appear before a House of Commons committee when issued a summons? I guess the irony here is that we haven't been able to serve a summons to one of the people, even though he shows up most nights in the media as the key spokesman for the government. That is Mr. Dmitri Soudas. He's out there in the media, but we can't access him to serve the summons. So that's a very difficult situation.

What are the penalties for not appearing when we issue a summons?

[Rob Walsh]

I would first choose to not use the word “penalty” in this context. A penalty is more like a sentence a court might hand out on conviction for a fixed term in prison.

Rather, the powers of the House are ones it might exercise to try to induce compliance with the order of the House. Assuming for a moment that the matter advanced to where the House made an order that the person show up and testify before the committee and the person didn't, I think the House might send for the person to be apprehended and brought before the committee to testify. If the person did not testify on that occasion, the same order would say, “to be held in custody until such time as he or she does testify”.

That has been done in the past. They're held in custody but released at the end of the session. The point is that the reason for the imprisonment is to induce compliance, not penalize them by sentencing them to a period of months or years. Once they comply and are ready to testify to the satisfaction of the committee and the House, that's the end of the incarceration and the person goes home.

So as far as trying to enforce its proceedings or defend its proceedings against improper or contemptuous conduct, the extreme end is to have the person, by order of the House--directed to the Sergeant-at-Arms--incarcerated until such time as they comply. Upon compliance, presumably they would be released because there was no further need for imprisonment.

[The Chair, Liberal, Paul Szabo]

Is that by a Speaker's warrant?

[Rob Walsh]

It would be indeed--by direction of the House.

[Wayne Easter, Liberal, Malpeque, PE]

It has to be a direction of the House. That would be interesting if we put leg irons on the Prime Minister's key spokesman, wouldn't it?

The other difficulty here, though, is in terms of the individuals who this committee wants to meet with. We really don't know whether they willingly want to come or don't want to come because they've been ordered. The Prime Minister's letter to the clerk of the committee, in this case, said, “The purpose of this letter is to inform the Committee of my instruction to Mr. Soudas that he will not appear before the Committee.”

We have this strange situation here of the committee asking for certain witnesses, and we've added one to our original witness list because of what Mr. Togneri said before this committee. When that happened, there seemed to be a move to prevent these staffers from coming before committee. So we really don't know whether they willingly want to come. They're probably aware of the severe penalties for not coming under summons, but they're being ordered by their masters.

So where does that leave us, if you have a situation where the witnesses may want to come but are ordered not to come by their superiors? This is unique when it is the Prime Minister who is exercising the cover-up. It's a unique situation.

[Rob Walsh]

Mr. Chairman, I haven't seen that letter to which the member is referring, but I can understand what it says from what he's read. It is my view—and this is supported by the Speaker's decision on April 27 on the Afghan detainee matter—that the same rule applies with regard to a committee's entitlement to get documents as applies to the committee's entitlement to have persons appear before it. It is not the case that anyone, with three possible exceptions, has a right to not attend when summoned by a committee. Those three exceptions, as you may know, are members of Parliament, senators, and perhaps the Governor General herself. Apart from that, anyone summoned to appear in front of a committee has the obligation to attend.

Now the next stage, however, is where the rubber hits the road. What questions are you entitled to ask that person who does appear in front of you? It is the case, as you well know, that a public servant appearing before committee—and they do this quite frequently—is not to be asked questions relating to ministerial policy or government policy, nor expected to defend ministerial policy and government policy. They are there to respond to the administrative matters of interest to the committee.

In a similar fashion, while I would be of the view that the political staff of a member of Parliament is obliged to attend when summoned and is not necessarily excused from attending by virtue of a direction from his or her minister or the Prime Minister, nonetheless there may be limits to what questions you can put to a political aide. I would say that, analogous to the situation of public servants and so also with political staff, you might use what the lawyers call the best evidence rule, and that is, if what your question is looking for is a matter that the minister can answer best, that is the person to whom the question should be put. On the other hand, if your question is something the aide can answer best, like a matter of fact—were you on this day at this meeting and did you engage in that conversation with so-and-so, which are matters of fact—no one knows those better, arguably, than the aide himself or herself.

[The Chair, Liberal, Paul Szabo]

Thank you.

Madame Freeman, please.

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

Mr. Walsh, thank you for being here this morning to provide us with clarifications on the various aspects of the witnesses' failure to appear. The notice you shared with us last September 24 about Public Works and Government Services Canada states that one of the committee's main duties is to force the government, the executive authority that is, to be accountable.

We currently agree that the government has to answer for its deeds and actions. Accountability is one of its duties. We find that we have a hard time getting any information from this government. Could you tell me which authority takes precedence in the committee: the executive or the legislative?

[Rob Walsh]

Mr. Chair, there is one answer in theory and another in practice.

In principle, following the ruling of the Speaker on April 27, the House of Commons and its committees have the right to obtain whatever the House asks from the government. This is a fundamental right in the relationship between the government and the House of Commons. The government is responsible and must answer before the House of Commons. It must provide everything required to help the committees or the House of Commons, and it must be accountable.

But in practice, it is a matter of trust between the government and the House of Commons. At the end of the day, it becomes a political matter. If the government refuses, it is up to the House of Commons to decide whether it will accept the refusal or it will submit a motion of contempt to Parliament or something like that.

In my opinion, we could talk about parliamentary principles and legal principles, but at the end of the day, it is always a political issue. It is about the relationship between the House of Commons and the government.

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

If I understand this correctly, even if last April, Mr. Milliken stated, in his ruling on the documents on Afghanistan, that the power of the Speaker is unabridged, unconditional, unqualified and absolute, and is limited only by the discretion of the House itself, the executive can, in fact, ignore it.

[Rob Walsh]

Yes, but the Speaker is right, in principle. If the government decides to say no, for political reasons or for its own reasons, it is up to the House of Commons to make a decision. The House can decide not to accept that answer and introduce a motion of contempt or non-confidence in the government.

It is not a matter for a court to decide on. It is a parliamentary matter.

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

All right.

In that case, I would like to ask you another question.

Can a minister or prime minister pressure a member from his political staff to ignore a notice or subpoena to appear before a committee?

[Rob Walsh]

In my opinion, in theory, the answer is no.

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

On page 1070 of O'Brien and Bosc, it says that the parliamentary privilege cannot in fact be invoked in that context.

[Rob Walsh]

Parliamentary privileges are not constrained by a government decision to not send a document to a committee or to ask a witness not to appear before a committee. For the constitutional functioning of the House of Commons and its committees, it is necessary to obtain everything that is required, such as documents and testimonies that could help the House or the committee to fulfill their mandate.

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

You are telling me that a minister or prime minister cannot induce a member from his political staff not to appear. What are the remedies against a minister or prime minister who induces a member of his political staff not to appear?

[Rob Walsh]

In my opinion, the committee first presents a report to the House about the case. If the committee's report proves the facts, a motion can be introduced in the House indicating that the minister, or prime minister, is found to be in contempt of Parliament and the House no longer has confidence in the government. It would be a motion like that. If the House of Commons supports that, it is a matter of confidence in the government.

Aside from that, I think it is difficult to find other legal or punitive means to make the government comply with the order of the committee.

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

Okay, thank you, Mr. Walsh.

[The Chair, Liberal, Paul Szabo]

Okay.

Mr. Siksay, please.

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

Thank you, Chair.

Thank you for being here today, Mr. Walsh, and for bringing Mr. Tardi with you.

As you know, I was of the opinion at the last meeting that this was probably an unnecessary visit. It strikes me that the facts of the situation are absolutely clear, and nothing you've said this morning has dissuaded me from that opinion.

This committee invited, and then summoned, three people related to a study that we are undertaking. They have refused to appear, and I think that's a very serious issue. It goes to the ability of this committee to do the work it has decided is important. We know those folks were advised or ordered not to attend by a cabinet minister and by the Prime Minister. This I think also goes to our ability as a committee to undertake the work that we believe is required.

You've made it very clear that our next step is to report that to the House of Commons, and then it's the House that takes the issue from there and makes decisions about what has happened here in the committee. I believe we should get on with that. I think we've been very generous in the committee. In fact, we've extended the possibility for these folks to appear until tomorrow, in an act of extreme generosity that I don't believe was necessary, but the committee in its wisdom decided to do that. In fact, we've given these people extensions to find the time or the ability to get here to be questioned by the committee. We need to get on with this work.

I don't have too many questions for you. I'm finding the conversation very interesting this morning. The what-ifs are very interesting, but I think we need to get on with the work that we've undertaken, that we believe is required, and we need to get on with reporting to the House the failure of these people to show and to let the House deal with that issue.

I do think an important issue wasn't covered in the draft motion, if I can just speak to that briefly, because it has come up as well this morning.

I think the letters from Minister Paradis and the Prime Minister to the committee also need to be part of what we report to the House. I think those are significant interventions in this issue. The Prime Minister reporting that he had told Mr. Soudas not to appear is a crucial piece of what's happened here, and it could be important for the House to have that information, as well as Mr. Paradis' advice to the folks who work for him. I believe that should be part of our report and we should append those letters in our report to the House.

Just to let members of the committee know, that's something I'll be pursuing when we get to the discussion of our report to the House.

Thank you, Chair.