Evidence of meeting #21 for Access to Information, Privacy and Ethics in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was person.
A recording is available from Parliament.
11:40 a.m.
Liberal
The Chair Liberal Paul Szabo
Okay.
I might want to just point out that we're still talking about the template that was suggested by the clerk's directorate. Considering what's been happening in the last couple of meetings, it's basically to help the committee determine what a report might look like. I think Mr. Walsh has raised some interesting questions that the committee might want to consider.
Mr. Poilievre, please, you have seven minutes.
11:40 a.m.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Thank you.
O'Brien and Bosc states on pages 32 to 33:
Responsible government has long been considered an essential element of government based on the Westminster model. Despite its wide acceptance as being a cornerstone of the Canadian system of government, there are many different meanings attached to the term “responsible government”. In a general sense, responsible government means that a government must be responsive to its citizens, that it must operate responsibly...and that its Ministers must be accountable or responsible to Parliament....
In terms of ministerial responsibility, Ministers have both individual and collective responsibilities to Parliament.... The principle of an individual ministerial responsibility holds that Ministers are accountable not only for their own actions as department heads, but also for the actions of their subordinates....
This principle is further upheld on page 139 of the second Gomery report, which was entitled Restoring Accountability – Recommendations, wherein Judge Gomery states and I quote, “...Ministers need to understand clearly that they are accountable, responsible and answerable for all the actions of their exempt staff”.
It's interesting that Judge Gomery did not simply refer to ministerial accountability there in reference to the actions of exempt staff. He took pains to list the three forms of ministerial responsibility—accountability, responsibility, and answerability—the last one being the most important.
Opposition members have argued that you could have a political staff member, who is ultimately responsible to a minister, come here to this committee to be answerable to Parliament. In fact, Judge Gomery clearly indicates that is not a proper definition of the powers of a committee, when he says ministers are answerable for the actions of their exempt staff.
These principles are longstanding in our system. In fact you are a scholar of parliamentary tradition. When did the concept of ministerial responsibility develop?
11:40 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chair, I think O'Brien and Bosc--you obviously have read the text, Mr. Poilievre--discusses that.
I'd like to first point out, though, that my notes indicate that Justice Gomery took the term “ministerial responsibility” and said it has to do with the relationship between a minister and public servants working in the department of which the minister has charge. I'd like to address that, Mr. Chair.
Before I get to that, while much that I have heard said about ministerial accountability is true insofar as the responsibility of ministers, where I differ, you might say, is in the use of that principle so as to enable the prevention of certain individuals to be available to a committee.
I don't, for a moment, question the responsibility of ministers to account both for their department and the actions of their exempt staff. I guess I disagree that it's an exclusive responsibility. It seems to me, as I said earlier, exempt staff of a minister could well be called as witnesses before a committee because they have knowledge of a particular situation of interest to the committee. While they should not be asked to answer questions pertaining to the minister's personal actions or policies or that sort of thing, they can be expected to answer questions pertaining to their own conduct and their own involvement. I don't think it's correct to take the principle of ministerial responsibility or ministerial accountability and apply it so as to prevent others from attending before a committee.
Let me go one step further, Mr. Chair, because I think there's an important consideration here with regard to this principle. It is a pierre angulaire of our system of government, a cornerstone...but in my view if you read Mr. Gomery's fact-finding report and include the document issued by the Privy Council Office as a guide to ministers, and other texts--Erskine May--the principle of ministerial accountability rests on the principle of governmental accountability: the government is accountable to the House, the House holds the government to account. That's the whole confidence basis of the relationship.
Ministers individually are accountable on behalf of the government, but ministerial accountability is tied to a minister's duties with respect to his department. You must understand that ministers are vested by statute with various powers and authority of a legal nature; that's when they act as government. For the people of Canada, it's important in our system of government that the House of Commons is there to question the government on its governmental actions--exercising public authority, public powers, and so on--where these might be exercised in poor judgment or improperly or whatever.
When you go to ministers' offices and political staff, they are treated separately. Even in the Privy Council Office's guide to ministers, that's a separate consideration. Towards the end of the document it states that ministers are individually and personally responsible for their staff. There's no question, just as members of Parliament are individually and personally responsible for their staff. They're the employers.
I don't believe it falls within the ambit of the principle of ministerial accountability, as we know it as a constitutional term, to talk about ministers being accountable in that context for political staff. Political staff are not in a position to direct the public service to do anything; they don't exercise any authority on behalf of the minister. It's the public servants who exercise the minister's authority on behalf of the minister. In that sense they come to committee and they answer matters they're undertaking in the department on behalf of the minister. Even there the minister can still be called to explain his department's actions, as the minister can be called with respect to his political staff.
The minister is fully responsible for answering for all these matters, but I don't know that I can agree that this principle has the effect of making the minister exclusively responsible to answer for the business of his office and to answer for his political aides.
11:45 a.m.
Conservative
11:45 a.m.
Liberal
The Chair Liberal Paul Szabo
That's seven minutes, Mr. Poilievre.
I'll have to go to Madam Foote, please, for five minutes.
11:45 a.m.
Liberal
Judy Foote Liberal Random—Burin—St. George's, NL
Thank you, Mr. Walsh, for being here, and to Mr. Tardi for accompanying you this morning.
I certainly found the exchange to be of interest. I know you indicated you had not seen the letter written by the Prime Minister, signed by the Prime Minister in fact, instructing the committee...his instructions were that Mr. Soudas would not appear before the committee. I can provide you with a copy of the letter if you'd like.
Having seen that and having listened to you, is it right to say then that the action the Prime Minister has taken here is contrary to your understanding of his authority, in terms of preventing a witness from appearing before a committee at the call of the committee?
11:45 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
Contrary to his authority for preventing.... I guess my view is that the Prime Minister, and any minister, has no authority to prevent someone from appearing in front of a committee.
Their ministerial function may present a limitation on what you can ask that political aide when they're in front of you, but everyone has a duty, apart from members of Parliament, senators, and the Governor General, to show up when summoned before a committee. What questions they can be asked is another matter.
11:45 a.m.
Liberal
Judy Foote Liberal Random—Burin—St. George's, NL
Absolutely. Clearly what the Prime Minister has done here is not within his authority.
11:45 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
I don't believe so. I haven't read the letter, but the way it was read to me, it reads as if he's purporting to have the authority to direct a person to not be available to the committee as a witness. I don't believe anyone has that authority.
11:45 a.m.
Liberal
Judy Foote Liberal Random—Burin—St. George's, NL
I was interested in your response to Mr. Poilievre in terms of the definition of being answerable versus an individual actually answering to his or her actions. Going back to your comment about best evidence and looking at the matter of fact, where the committee wanted to go with these witnesses in fact was to have them speak to their actions, speak to information that we have knowledge of in terms of steps they had taken. Let me give you an example in the case of Mr. Togneri, who had in fact ordered the un-release of a report that departmental officials had already released. From our perspective, the committee's perspective, it was important for us to have the witness here to answer to his or her particular actions.
My question is--just to go back to your point on this--am I correct that for a minister to appear before the committee and expect the committee to accept his or her answers in terms of being answerable for his or her exempt staff is not proper, and it is not something that they have the authority to do either?
11:50 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
What I said earlier is I don't believe they have the authority to cause that to happen, but it may be proper in the minds of the committee. The committee could well be satisfied with what the minister told them. It's up to the committee to decide who they need to talk to.
11:50 a.m.
Liberal
Judy Foote Liberal Random—Burin—St. George's, NL
When you talk about someone not appearing--I just want to go back to a reference you made--that they may be able to with lawful excuse, can you elaborate on that for me?
11:50 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
It's a legal argument. It could be used by someone...let's stay with the hypothetical we're talking about now. I emphasize that I'm addressing it as a hypothetical situation, where a minister is charged with interfering with a witness, of preventing a witness from attending before the committee. The minister's response and defence would be, “I did that with lawful excuse. My lawful excuse was the principle of parliamentary ministerial accountability, which enables me to direct that certain persons will not be available to the committee, and that I will be the one who is available.”
Would that be a legal argument that would prevail in court? My own thought is that it is an argument that should be made in the House, and the House should decide whether that's sufficient. If the House were to decide that it is not sufficient and the matter went to court, I think the court would be obliged to accept the House's determination. If in fact the House did not determine that question and it went to court, the court might say, “Sorry, we can't consider this matter; that's a matter of internal House proceedings and courts can't go there.” You have to think about those kinds of issues if you're looking at some extraparliamentary legal approach.
Generally speaking, with criminal offences, a person may have defences that we generically describe as lawful excuses. The emphasis is not on “excuse” but on “lawful”--exonerating circumstances that are recognized by law to have the effect of providing a defence.
11:50 a.m.
Liberal
The Chair Liberal Paul Szabo
We're at five minutes now--it's just over five minutes now.
I'm going to Mr. Poilievre, then Madam Freeman, then Ms. Davidson.
11:50 a.m.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
One lawful excuse, of course, would be that you're upholding centuries-old traditions by not attending and supplanting ministerial responsibility. That, of course, would be the lawful reason for the non-attendance of the witnesses in question.
While I was disappointed that you didn't elaborate on the longevity of the principle of ministerial accountability, I will bring us to modern day and clarify the words of Judge Gomery on page 139. He didn't refer to ministerial responsibility in a vague sense that could be widely interpreted however one chose. He was very specific. In fact, his words on that page are incredibly apropos.
First of all, he doesn't just use the term “accountable” and he doesn't just use the term “responsible”—terms that could be widely interpreted by fair-minded people. He also uses the term “answerable”. And the attendance of a potential witness before committee falls under the rubric of answerability.
He then also uses the term “exempt staff”. He was not speaking in a vague sense requiring broad interpretation by the government. His words are very explicit—highly applicable to this situation.
Then he uses the term “all”, as in ministers need to understand that they are clearly answerable for “all the actions” of their exempt staff.
That would seem to run at cross-currents with your interpretation that ministers are only responsible for some of the actions of the exempt staff and that the exempt staff, by consequence, are responsible for others.
The term “all”, the term “exempt staff”, and the term “answerable” make this sentence tailor-made for the circumstances with which our committee is now presented.
That is the basis on which the government has made the decision to instruct ministers to attend in the place of staff members who've been wrongly called. It now falls to the committee to accept that ancient tradition of ministerial accountability and proceed with questioning of the ministers in question.
That decision has now been made. I think it would be in the interest of the taxpayer that we move from this procedural debate, which is resolved, to a practical study of the matter of access to information and the way in which it is applied so that on the government side we can explain the actions that we've taken, and on the opposition side the members can carry out their legitimate function of critiquing our approach.
So that is the decision the government has made, and those are the principles upon which that decision rests. We feel very confident that the hundreds of years of traditions behind it support the decision and our actions.
Thank you, Mr. Chair.
11:55 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
I'll make a brief response, only to say that I don't disagree with what the member has quoted. I could perhaps throw other quotes out as well, but I think there's a misunderstanding about what I said.
I agree that the ministers are responsible for “all”; the member put emphasis on that word. All I'm saying is that they're not the only ones who could be held responsible in front of the committee. Their staff could well be called as well.
So to say that they're responsible for all is not to say that they are the only ones responsible in the sense of being subject to being called in front of a committee. All I'm saying is that staff could be called in front of a committee, but there would be limitations on the questions that could be asked. There would be some questions that should properly be directed to the minister and not to the political staff person.
11:55 a.m.
Bloc
Ève-Mary Thaï Thi Lac Bloc Saint-Hyacinthe—Bagot, QC
Thank you for being with us this morning, Mr. Walsh and Mr. Tardi.
I have a question about the statements by Mr. Paradis, former Minister of Public Works and Government Services Canada. When the media talked to him about a document that was recalled by an employee, he pointed out that the decision was made by one of his employees and not by him. Even though he was minister, he said it was Mr. Togneri's responsibility.
Mr. Togneri was called as a witness. He started his testimony, but he was never dismissed by the chair. I would like to know one thing. Is the rule different for Mr. Togneri, since he started to testify before the committee and was not dismissed? Is the rule different for someone who does not respond to an invitation or summons?
11:55 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
Was Mr. Togneri subpoenaed to appear before the committee? Was it not an invitation?
Noon
Law Clerk and Parliamentary Counsel, House of Commons
So he is still under the authority of the committee for the testimony. After a meeting, he is required to come back the next time to continue his testimony, unless the committee decides to excuse him.
Noon
Bloc
Ève-Mary Thaï Thi Lac Bloc Saint-Hyacinthe—Bagot, QC
So, given that Mr. Togneri had already started his testimony and he had not been dismissed yet, he had to appear at the next meeting. Since he did not do so, what penalties could the committee impose? What procedures can it follow? You are saying that the penalties are not the same if a person decides not to appear after a summons or if the testimony before the committee has not started.
We had already heard Mr. Togneri, but he did not appear again, after the notice from the committee to appear on a set date. What measures should the committee take in this specific instance?
Noon
Law Clerk and Parliamentary Counsel, House of Commons
In theory, there is no difference. The same principles apply in his case and in the case of someone who has not yet participated in a meeting. It is the same situation. There is no difference, unless there was, for example, some sort of confusion. Mr. Togneri maybe misunderstood the situation and perhaps showed up on another day than the one when he was supposed to appear on. We can obviously make mistakes from time to time. But, in principle, he would suffer the same consequences as any other witness.
