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.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
Thanks very much, Mr. Chair. Thanks very much, Mr. Walsh, for being here this morning.
I just want to go back to one thing. We're talking about ministerial responsibility and the government's belief that there certainly needs to be ministerial responsibility. In Accountable Government: A Guide for Ministers and Ministers of State, on page 37 it states that “Ministers and Ministers of State are personally responsible for the conduct and operation of their offices.”
To my mind, at least, that certainly says there is ministerial responsibility. I feel that ministers are responsible for their departments, and they are responsible to Parliament. I feel it should be the ministers who are here speaking for their departments.
Could you comment on that, please?
Law Clerk and Parliamentary Counsel, House of Commons
I would agree with you in the sense that the minister is the primary person responsible for what goes on in his or her office. I have no quarrel with that whatsoever, but that doesn't mean the committee isn't justified in seeking to hear from other persons in the office on particular matters of which they may have direct knowledge. I don't mean to suggest this is the case here, but you might appreciate that if the government of the day can pick and choose what documents it will provide, or can pick and choose what public servants or what political staff show up here before committees, that has the potential to undermine the ability of a committee or the House to hold the government to account.
So it is that as in a court proceeding, so also here: the person of whom a demand is made to produce a person or a paper does not have the choice of selecting which it shall produce. I fully agree with you that ultimately, and maybe not so much ultimately but at first instance, the primary person responsible for the conduct of the ministerial office is the minister himself or herself.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
Can you help me with the summons issue? It's my understanding that the way this proceeded from the committee was that Mr. Togneri was summoned first and did appear twice. And as you have just talked about, he wasn't released or excused, I believe. So that summons carries on until such time as the chair—or who releases or excuses the person?
Law Clerk and Parliamentary Counsel, House of Commons
In my view, as a practical matter, if a person testifies under a summons and the meeting ends and the person gets up and leaves without being told they're not excused, they're entitled to assume they are excused. Committees don't customarily get into that formality. The onus is on the committee, I think, to make it clear to the witness that they're not finished with them yet, they will want them back at another time. And I think the onus is on the committee to specify when they want them back. There doesn't have to be another summons, but there's an onus to now indicate they're expected back for this next meeting, and then the onus is on the witness to attend the second time. But if a witness were to get up and leave a meeting and no one says he's not excused, I think he's entitled to assume he is excused.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
So in the instance of a couple of the other staff members who are involved with this, a summons has been issued, but it's my understanding that they've never been delivered. What is the legal status of that? Have they been summoned? Are they deemed to have been summoned, or have they not been summoned?
Law Clerk and Parliamentary Counsel, House of Commons
This phenomenon, of course, is not unknown in the courts, as you may well appreciate. The recourse to take is to go to the court for an order—it used to be, anyway; I've not been in the courts for a while and maybe there's a simpler process now. We used to have to go back in front of a judge and get an order for what was called substituted service. Then you get an order saying “post a notice in the local newspaper for this many days over this many weeks” or “leave it at this certain address and that address”. And if you do those things, then the courts will deem the person to have been served.
Now we don't have that kind of process here, but it could well be the case that if the committee were to report to the House that these steps were taken to try to effect service, the House, in its judgment, could simply deem the person to have been served, and in my view, that would be sufficient for purposes of the House proceedings.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
It would have to be the House that would have to do that; the committee couldn't do it? The committee would have to report the sequence of events to the House and they would have to deem?
Law Clerk and Parliamentary Counsel, House of Commons
The committee could do that, but it would do it at its peril if the House later were to decide that it had acted without properly satisfying itself that the person had been served. So yes, the committee could do it as a practical matter, but I'd be concerned that later the committee may be contradicted by the House and the House might decide no, that's not good enough. As an abundance of caution, if time permits, I would recommend the committee go to the House and get the House to deem the person to have been served for purposes of the committee proceedings, and then the committee returns to its business with that order made.
Liberal
Wayne Easter Liberal Malpeque, PE
Thank you, Mr. Chair.
Thank you for the great information in your capacity as law clerk and parliamentary counsel, Mr. Walsh.
I'd read earlier the letter from the Prime Minister on Mr. Soudas, but we're dealing with three individuals here, and I'll read you the pertinent quotes out of both letters.
My question to you is, in your long experience here, have you ever seen this ever happen before, of this magnitude?
The letter from the Prime Minister to the clerk of the committee referring to Mr. Soudas said,
I am aware that the Standing Committee on Access to Information, Privacy and Ethics is requesting the attendance of Mr. Dimitris Soudas on June 10. The purpose of this letter is to inform the Committee of my instruction to Mr. Soudas that he will not appear before the Committee.
The letter is signed by the Prime Minister.
The second letter refers to the other two witnesses, and it's from the Honourable Christian Paradis, the Minister of Natural Resources. In his letter to the clerk, he states this:
Pursuant to the statement made by the Leader of the Government in the House of Commons on May 25, and the motions passed by the Standing Committee on Access to Information, Privacy and Ethics on April 1st and May 25 requesting the appearance of Mr. Sebastien Togneri and Ms. Jillian Andrews, this letter is to inform the committee that I have instructed Mr. Sebastien Togneri and Ms. Jillian Andrews that I will appear before the committee in their place.
It's a little bit different from the Prime Minister's letter, but it certainly has the same impact of really disallowing their attendance at committee, where we really believe we need them to gather information.
You've answered about the impact and the parliamentary procedure previously, but have you ever, in your experience, seen anything like this before?
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, it's a lot of years since I've seen something that I've seen before in this place. It seems to me everything comes along for the first time. I've likely lost my virginity a hundred times since I came here.
Law Clerk and Parliamentary Counsel, House of Commons
Be that as it may, it's irrelevant whether I've seen it before, because the issue is here now.
I would say, about the second letter from Minister Paradis, that the better practice for the committee would be to hear from Mr. Paradis first, since he's volunteering himself to speak to the matter. That doesn't mean, having heard the minister's testimony, that the committee is precluded from then asking for certain staff to appear before it. I think the better practice is to hear from the minister first, if the minister is available and is willing to attend.
Liberal
Wayne Easter Liberal Malpeque, PE
Our concern--and we could be right or we could be wrong, I'm going to admit that. We're worried about the precedent it would set--and Paradis was here--in that they've now set a standard where if we ask someone and the minister so decides, the minister can come in their place. That was our concern on that particular point.
There was one other question I had, Mr. Chair, and you mentioned it earlier. Judy asked a question somewhat along these same lines as well. Are there really any legally justifiable reasons to refuse to appear before a parliamentary committee when a summons is issued?
Mr. Chair, the summons never did get delivered to Mr. Soudas, did it?
Liberal
The Chair Liberal Paul Szabo
You might want to ask Mr. Walsh.
As you know, it was dated for a specific date, and that date of appearance is now past. The question is whether or not it has any special status, or the summons would have to be reissued.
Liberal
Wayne Easter Liberal Malpeque, PE
As I said earlier, Mr. Walsh, the strange scenario here is that you have the chief spokesman for the Prime Minister of Canada who ends up on TV most nights, certainly more than most cabinet ministers, yet he couldn't be found by the bailiff to issue him a summons, even though they called the receptionist in the office and so on. That's absolutely an affront.
In any event, are there any legally justifiable reasons to refuse to appear before a parliamentary committee when a summons is issued, assuming they get it?
Law Clerk and Parliamentary Counsel, House of Commons
You used the word “legally”, so let's go to the context of a court, where someone didn't show up when subpoenaed at a certain time. There are excuses and there are explanations. An explanation acceptable to the court might be, “I got hit by a car and I was in hospital.” You were caught in traffic? That might not work so well. So there are explanations and there are excuses. It's the court's judgment as to whether the explanation is sufficient. What that suggests is there should be an opportunity provided for the person to explain why they didn't attend. So another day is set, and the first question that might be asked of the individual is, “Why weren't you here the last time we summoned you?” It would give the individual an opportunity to explain, and then the committee could make its own judgment as to whether that's sufficient for its purposes.
Liberal
Wayne Easter Liberal Malpeque, PE
What happens, as in the case of the Prime Minister's chief spokesman, when a summons has been issued and the bailiff can't track down the individual after numerous attempts to issue it? What is our recourse then?
Law Clerk and Parliamentary Counsel, House of Commons
As I said earlier, you could decide on the facts, and you have them, that every reasonable effort has been made to effect service and that no further attempts ought to be made. The person should be deemed to have been served and proceed on the basis that the person has been served.
Liberal
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
Mr. Walsh, so far, you have explained to us very clearly what the principle of accountability entails for the executive in terms of the actions of officials. The ministers are accountable for the officials' actions, but not necessarily for those of their political staff as such. I see that the government's position is to say that they are clearly responsible for the actions of their political staff.
I just wanted to make a comment by saying that there is a double standard, or two completely different interpretations. We remember the case of Minister Lisa Raitt, when her political staffer forgot documents at a television or radio station. It was not the minister's responsibility, but her employee's, and the employee was immediately let go.
In Minister Paradis' case, he did not know what was going on at all, but he changed his story later. We have a hard time following what the government is trying to feed us; they are contradicting themselves.
That was the comment I wanted to make in response to the arguments of my government colleagues.
Liberal
The Chair Liberal Paul Szabo
I don't have anybody else left on the list, but the chair has a couple of questions.
I think we should take advantage of having Mr. Walsh's and Mr. Tardi's words of wisdom, because these things don't happen very often. The last time we issued a Speaker's warrant was for Karlheinz Schreiber, which was done by this committee, and prior to that it was in 1913. So it doesn't happen very often.
Mr. Walsh, is it possible to name the government as the party who has breached the privileges of the committee?
