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.
Law Clerk and Parliamentary Counsel, House of Commons
You say “name the government”. There could be a motion of that kind accusing the government of breaching the privileges of the House, but I would assume, depending on the nature of the breach, that the government might well take it as a confidence motion and you're into a confidence issue.
That's where you have to go with the government. If you've got a problem with the government, you're ultimately in a question of confidence.
Liberal
The Chair Liberal Paul Szabo
Sure.
So if there was a matter that you wanted to report, is it advisable that it be a person? If you had several instances—for instance, there's a letter from Mr. Paradis—it raises the question of whether or not there is a good rationalization for a committee to report not on a group of people, like a government or three witnesses, but rather to report individually with regard to specific incidences.
Law Clerk and Parliamentary Counsel, House of Commons
The committee may choose to report with regard to a particular individual minister as opposed to the government as a whole. That's the committee's call. In the House, the House may choose to take that incident as reflecting the whole government and choose to frame the motion in the House in terms of the whole government.
But as a rule, committees should stick to the facts they have before them, and report those facts, and not go beyond those facts and make inferences of a kind that may or may not be supportable later in the House.
Liberal
The Chair Liberal Paul Szabo
My experience on privilege matters in the House, as early as yesterday, is that there are very many elements, and if you just miss one, you're lost. In that particular case, as you well know, there certainly was a matter where there was a wrong, but one thing wasn't there, and that was that there was no evidence that a member was interfered with in terms of discharging their duties.
Law Clerk and Parliamentary Counsel, House of Commons
You may recall the ruling of April 27, where one of the points of the alleged breach of privilege was a letter from an ADM, and the Speaker ruled, “I have to see what use is made of the letter.” It's not enough to write a letter stating an opinion; it's question of taking that letter and using it to interfere with a witness. There was no evidence of that before the House, so the Speaker wasn't able to find a breach of privilege.
Liberal
The Chair Liberal Paul Szabo
The reason I'm asking is that it would appear to me, and I think your counsel has been, that it is not to rely on a single bullet, as it were, but rather to be very comprehensive in the facts and the support for coming to the House, because it is a very serious issue.
If a political staff member is in breach of subsection 67(1) of the Access to Information Act, which is basically obstructing the release of information—and in fact it goes on to suggest in subsection 67(2) that it can be subject to imprisonment up to 10 years and/or fines of I think...is it $10,000 or $2,000? In any event, it's a Criminal Code offence. Is it possible for a minister to assume the responsibility for that and in fact be charged themselves instead of the person who did it?
Law Clerk and Parliamentary Counsel, House of Commons
It's hard to address that question without looking specifically at the provision you're talking about, whether in the Access to Information Act or some other provision, but at the risk of oversimplifying matters, let's say two things. One, we're all responsible for acting in accordance with the law, particularly laws of that kind; and secondly, while I made reference to lawful excuse, I did indicate that I think there are limits to how that could be used. It's lawful excuse. You can't just say, “The devil made me do it.” You can't just say, “I did it because I was told to do that.” The person who gave the instructions may also be liable to prosecution under the same offence, depending on what the evidence supports. But I don't think anybody can say, “I did it because my boss told me to”, where you're talking about an offence of a kind that's subject to imprisonment as a criminal offence.
Liberal
The Chair Liberal Paul Szabo
In the hypothetical that a political staff member, in the conduct of their duties, actually made some breach or broke the law, is there any instance under which some other person, like their boss, their minister, or whatever, could assume the legal responsibility for their actions, even though that person was unaware and had no control?
Law Clerk and Parliamentary Counsel, House of Commons
I don't think anybody can assume responsibility for someone else's criminal conduct.
Liberal
The Chair Liberal Paul Szabo
Ministerial accountability does not in fact insulate a political staff member from being charged under the Criminal Code.
Law Clerk and Parliamentary Counsel, House of Commons
Under the Criminal Code, no.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
I have a point of order, Mr. Chair.
It's clearly the case that this is not a criminal court. For you to imply criminality goes far beyond your powers as the chair of this parliamentary committee. It's probably also a good illustration as to why the government has made the decision not to allow you to intimidate staff members in person the way you have done indirectly--by making indirect allegations like you have just done--without any basis whatsoever.
I think you know very well that were you to step out of this chamber and make and repeat those kinds of suggestions, you would be the one facing consequences.
Liberal
The Chair Liberal Paul Szabo
Thank you.
First of all, it's not a point of order.
Second, 67(1) in fact is a criminal offence, subject to criminal sanctions. I referenced 67(1) but didn't talk about any particular person. The issue is, if there is a wrongdoing--that's why I used the word “hypothetical”--by a political staff member, is there any circumstance under which another person could take the responsibility for it, if they had no knowledge but simply because they were the person in authority? It's the other part of the accountability.
Mr. Walsh, when you call a witness--and I'm curious about the justification for calling a witness--
Conservative
Randy Hoback Conservative Prince Albert, SK
I'm just kind of curious about how many minutes you're going to take for your own round of questioning. Is it seven, five, 20, 30? Could you elaborate?
Liberal
The Chair Liberal Paul Szabo
Mr. Hoback, it's not a point of order, but there are no members left on the list. Before we release the witness, I want to get some clarification on some matters, which I think are going to be relevant to the committee in its further determinations.
Mr. Walsh, when a witness is asked for--
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Mr. Chair, I have a motion to adjourn.
I didn't raise a point of order.
Conservative
Liberal
The Chair Liberal Paul Szabo
I know.
I have a couple more questions, Mr. Poilievre, and I think that--
Conservative
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
I don't think a motion of adjournment is actually debatable; it's just votable.
Liberal
The Chair Liberal Paul Szabo
No, that was an interruption of my questioning.
I want to ask Mr. Walsh about the committee's responsibility to advise a witness why they're being called and the relevance of their testimony to what's happening.
Law Clerk and Parliamentary Counsel, House of Commons
That's a good idea. It's not a requisite of a kind that failure to do it exonerates the individual from showing up. But it's a wise thing to do, certainly.