Information & Ethics Committee on April 12th, 2021

[Philippe Dufresne]

Normally, the Speakers have indicated in rulings that, if a matter relates to a committee and to information to be provided to a committee, it would generally be the practice to wait for the committee to first address it, giving the opportunity to the committee to determine it is satisfied.

Often when information is not provided, there are reasons given for why it's not been provided and claims of confidentiality made, so the committee is usually first given the opportunity to turn its mind to that and determine if it is satisfied or not, or if it wishes to consider different approaches or wishes to have the matter considered by the House.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

What precedent is there for an order of the House like this one to be disregarded or disobeyed?

[Philippe Dufresne]

There have been instances where orders of the House have not been followed for the provision of information, situations where the government was invoking cabinet confidence so as to not provide information and/or documents, or invoking national security. In these instances, the question was ultimately referred back to the House as a question of privilege.

One instance was the Afghan detainee matter, in which the Speaker, in a ruling on a question of privilege, gave some time to the parties to find a solution to resolve the matter, to allow the committee to do its work but at the same time protect the imperatives that were being raised by the government, in that case, of national security.

In another case dealing with information about public spending, the matter was referred to the House committee on House affairs so that it could consider it and make a report to the House.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Did both of those instances deal with documents, or did one of the two deal with individuals being ordered to testify?

[Philippe Dufresne]

Those two matters dealt with documents.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Is there precedent with respect to an individual?

[Philippe Dufresne]

There are precedents with respect to individuals being summoned, to orders of committees asking for appearances of witnesses, and these being raised with the House.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Is there precedent for ministers ordering witnesses not to appear or to disregard an order of the House?

[Philippe Dufresne]

There was a precedent in 2010, where the government instructed its political staffers not to appear in front of a committee. I believe it was this committee. The argument made then was similar to the argument being made now, namely, that this was a matter of responsible government and that the ministers were the more appropriate witnesses to respond to questions from the committee. In that instance, in 2010, there was no order of the House. It was an order of the committee, but the claim made and the grounds given were the same.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thank you.

Mr. Dufresne, in this particular order of the House, was there a provision for ministerial accountability included in the order?

[Philippe Dufresne]

There was a provision in the order that gave the alternative that the Prime Minister could appear, if I read the order correctly, and that should the Prime Minister appear instead of the named political staffers, those employees would be released.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Right. Would that satisfy the argument made with respect to ministerial accountability?

[Philippe Dufresne]

That's a determination to be made by the committee and ultimately the House.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

In the case of individuals being ordered to appear, is there anyone who can lawfully exempt an individual from appearing at committee by order of the House, in this case, ministers of the government telling people lawfully ordered to appear that they should not appear? Is that a power the government has?

[Philippe Dufresne]

In my view, this power rests with the House. The House issues the order and it's up to the House to interpret whether it is satisfied with the compliance with its order. It's the same with a committee's order, where the committee is given the opportunity to consider. There have been, again, in the precedent of the Afghan detainees, statements by the Speaker very clearly to that effect, that the House has a constitutional power to request this information.

At the same time, there is very strong encouragement to the House and committees to consider public policy imperatives when exercising those powers.

[The Chair, Conservative, Chris Warkentin]

Sir, your time is up.

Ms. Lattanzio, we'll turn to you for the next six minutes.

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you, Mr. Chair.

Thank you Mr. Dufresne and Mr. Bédard for being present today and answering these questions on ministerial responsibility.

The principles of ministerial accountability guide the ministers and their officials when they appear before parliamentary committees, including when officials appear in their capacity as accounting officers. I understand that ministers are responsible for providing answers to Parliament on questions regarding the government's policies, programs and activities, and for providing as much information as possible about the use of their powers, including those delegated by them to others.

Ministers are also responsible for deciding which questions they should answer personally and which questions may be answered by officials speaking on their behalf. This has been a long-standing practice of the House.

Beyond the broad scope that committees can compel anyone residing in Canada to appear before a committee, do you think that using the committee's power to compel staff, who have, in many cases, no authority over decisions of the government, and forcing them to appear [Technical difficulty—Editor] political gamesmanship?

[Philippe Dufresne]

I would point to the recognition in Procedure and Practice—where there's a discussion about the role of public servants and their particular function—that indeed they are not the ones making the policy decisions. That is being done by the ministry and by the minister.

There is a discussion there about the types of questions and the questions and topics that are appropriate—or not—for public servants, and that generally committees will accept reasons given by public servants if there are areas where it's beyond the public servant's authority or knowledge. That's where you've seen these types of concerns very much in terms of topics that would be appropriate for public servants, given their very different role in terms of decision-making and also in terms of accountability.

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

You spoke earlier about the precedent that was set in 2010. My understanding is that then Conservative minister Jay Hill made it clear that political staff would not appear before committees. He stated:

These employees are accountable to their superiors, and ultimately to their minister, for the proper and competent execution of their duties.

He followed with this:

There is a clear case to be made that the accountability of political staff ought to be satisfied through ministers. Ministers ran for office and accepted the role and responsibility of being a minister. Staff did not.

I know you may find it hard to answer, but do you find it somewhat hypocritical that now the Conservatives, or other members of this committee, are arguing the opposite when it suits them politically?

Can you also tell us what happened in 2010? Who ended up showing up at the committee to testify?

[Philippe Dufresne]

In terms of the 2010 precedent, it was the ministers who appeared instead of the political staffer. The opposition, many members of the committee, were concerned with that position being taken. There was a debate on a motion to report that to the House, and that was defeated at committee, so that motion was not adopted.

These are the types of issues that we see arising. A government will take a position, and committees will consider that and whether they accept the reasons—or not—given by the government in those instances. My view is that, ultimately, it is up to the committees and to the House to make the determination. The determination may well be that it's appropriate to have a different witness for different purposes or different types of information. These are considerations for the committee.

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

I want to follow up on that, because you're highlighting that it would be for various purposes or reasons. That's basically the crux of the question here: for various reasons. If there is no value to compelling a witness to come before a committee and it is purely political, would you not conclude that it would be futile to proceed in the way that this has proceeded?

[Philippe Dufresne]

As highlighted in the book in terms of the powers of committees, the issue is always whether you have what you need to fulfill your fundamental mission as the grand inquest of the nation, and whether you are doing that, exercising those powers, in a way that is not harming other public interests, public policy issues or individuals.

It's really a case-by-case situation as to what you need, as a committee, to do your work. What information do you need to be able to fulfill those functions of legislating, deliberating and holding the government to account?

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

I'm going to finish off with another quote by Mr. Hill. He said, “The tyranny of the opposition majority has turned its attention to the men and women who make up our political staff, men and women who did not sign up to be tried by a committee, to be humiliated and intimidated by members of Parliament.”

Mr. Dufresne, do you believe that dragging political staff before a committee is likely to benefit Parliament and the government of the day in general? This is for questions that are not relevant. I'll say that as a preface.

[Philippe Dufresne]

At the end of the day, it's not for me to make the determination of what is needed or not in a committee's mandate. What I will point to again, though, is the discussion in Procedure and Practice regarding the particular role of public servants. Political staffers have a different role than the one of ministers.

The general advice given to committees is to seek the information they need, but treat all witnesses with courtesy and ensure that no unnecessary harm is caused to any individual or any public policy consideration.

[The Chair, Conservative, Chris Warkentin]

Thank you so much.

We'll turn to Monsieur Fortin, for six minutes.