Evidence of meeting #29 for Access to Information, Privacy and Ethics in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rcmp.
A video is available from Parliament.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Mr. Chair.
Good afternoon, Mr. Dufresne. Thank you for being with us today. Your clarifications are valuable to us in the current situation, as it's often the case.
As I understand it, the authority that makes an order, in this case the House of Commons, is the only one that can deny, withdraw, or change that order.
Am I mistaken?
Law Clerk and Parliamentary Counsel, House of Commons
You are right, Mr. Fortin. If it's a matter of changing the wording of the order, the House can do so. However, the order gives the committee the possibility of releasing the witnesses in question. The committee retains some discretion.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Okay. Otherwise, we must stick to the wording of the order that was issued on March 25 by the House of Commons.
Law Clerk and Parliamentary Counsel, House of Commons
That is the distinction that must be made. If the order came from the committee, the committee could change it on its own initiative.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Are you telling us that in 2010 the government ordered someone to disobey an order of the House? Is that what you said?
Law Clerk and Parliamentary Counsel, House of Commons
In 2010, the order was issued by a committee.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
If I understand correctly, this has never happened for a House order.
Is that the case, to your knowledge?
Law Clerk and Parliamentary Counsel, House of Commons
To my knowledge, we have not seen a situation dealing with the appearance of a witness. We have seen cases related to the disclosure of information, when information or documents were requested, but the government invoked cabinet confidence or national security.
The distinction here is that the government is invoking ministerial responsibility as a reason.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I would actually like us to talk about ministerial responsibility. As I understand it, this principle implies that, before the House, and even before the public at large, ministers are accountable for the management of their offices. They are responsible.
But am I to understand that they are the only ones who have this obligation? In other words, the House could not hold anyone else accountable except the minister.
I also understand that a House committee would not be able to review, with other witnesses or with other documents, the position taken by the minister.
Is that actually the case?
Law Clerk and Parliamentary Counsel, House of Commons
In my view, committees and ultimately the House have the authority to determine what reasons they will accept. There is a great incentive to—
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I apologize, Mr. Dufresne. It was not my intention to interrupt you. We are not being very polite, but we have very little time. I think I misspoke.
Here is what I meant to say. The minister, because of his accountability, could describe his position to us in several points. But because of the principle of ministerial responsibility, would the committee be unable to check the facts with other witnesses? Could we, for example, subpoena someone to confirm what the minister has said and to tell us whether they agree with what he has said?
Do we have the right to do that or not?
Law Clerk and Parliamentary Counsel, House of Commons
According to the decision of Speaker Milliken in the Afghan detainee case, the House is sovereign and can decide whether or not to accept the reason given, including by the government. In the Afghan detainee case, the government was invoking national security. In the current situation, ministerial responsibility is being invoked. A dialogue needs to take place.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Okay.
We want to examine some aspects of the WE Charity matter. We want to check facts and we need to hear from certain witnesses, because other witnesses have told us that Mr. So-and-so said this or did that. We want to hear from these witnesses of fact, whom we are not accusing of anything. They are not here to be held accountable for anything. But we want to hear their testimony and their side of the story.
Do we not have the right to check these facts with the individuals in question, because they are employees of a minister?
Law Clerk and Parliamentary Counsel, House of Commons
As far as I know, there is no recognition of immunity indicating that employees of ministers are not obliged to testify before a committee. In my opinion, it is rather a reason given to you, when you are presented with this important principle of ministerial responsibility that makes ministers accountable to Parliament. Since employees are accountable to the minister, they put forward this argument.
If the matter is brought forward, it is up to the committee and ultimately the House to determine what course of action to take.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I understand that we have the right to ask witnesses questions, even if they are employees of a minister.
Law Clerk and Parliamentary Counsel, House of Commons
You have the right to ask them to appear in order to hear this information. It is up to the committee and ultimately the House to determine whether this right to [technical difficulties].
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
So the House decides that.
However, when an employer, a minister in this case, orders a particular individual to disobey an order of the House, what is the range of sanctions that the House has at its disposal?
Law Clerk and Parliamentary Counsel, House of Commons
When a concern is raised in the House about a breach of privilege concerning an order to produce a document or, in this case, to summon a witness, the House can refer the matter for examination to a committee, which is generally the Standing Committee on Procedure and House Affairs. The House can give an order. In his case, it has already done so, but it could amend that order if it is of the opinion that the matter is one of concern.
The increasing range of measures can include summoning an individual to the bar of the House, declaring that an individual is in contempt of Parliament, or withdrawing confidence in the government, as was done in 2011.
Conservative
The Chair Conservative Chris Warkentin
Monsieur Fortin, you're out of time, but hopefully we will get back to you.
Mr. Angus, we'll turn to you for six minutes.
NDP
Charlie Angus NDP Timmins—James Bay, ON
Thank you.
I'm very honoured and pleased that you're with us today. For me, having sat on this committee for so many years, it's almost bizarre to watch the Liberals now taking the position of Jay Hill. I remember my good friend Wayne Easter, who was outraged that the Conservatives did not want political staffers coming to this committee. Now it's something that would be a fundamental threat to democracy if we did have them come.
I'd like to just put it in the perspective of the times. You spoke about the Afghan detainee documents. Canada was in a very messy war. There were allegations of torture. There were international implications. These documents were extremely explosive. I disagreed with the Conservatives at the time on how they were handling the Afghan detainee documents, but we understood that it was a hugely sensitive issue that could have massive ramifications.
In this case, we're dealing with the WE Charity brothers and the fact that they called the Prime Minister's Office three days before cabinet was told that half a billion dollars was to be given to the WE Charity. We're not allowed to talk to the key person in the Prime Minister's Office who was giving them the thumbs-up on that because it's somehow a threat to national security. I think it's just worth putting that into perspective.
I remember when the opposition called the staffer for Christian Paradis to testify. The Conservatives weren't very happy about that. Is it a parliamentary rule that the political staffers, the people close to the Prime Minister, can't testify before a committee? Is that some kind of fundamental rule of democracy?
Law Clerk and Parliamentary Counsel, House of Commons
As I've indicated in previous discussions, there is no immunity for political staffers or public servants vis-à-vis a request to testify before a parliamentary committee. Generally, how we've seen this dealt with had to do with the topics and the types of questions, given the very different role that public servants and political staffers have, as opposed to ministers.
NDP
Charlie Angus NDP Timmins—James Bay, ON
They have different roles, but they're also the key people who are moving files forward, particularly, apparently, politically explosive and sensitive files like the WE brothers' relationship with the Prime Minister and the half a billion dollars they were about to get. I'm going to put that aside for a minute now to consider what our committee needs to do.
We heard a lot about ministerial responsibility from my Liberal colleagues, but the ministers they brought forward didn't know anything about the file, so it was pretty much a waste of our time. Now we have a motion to report it back to the House.
Is there anything outrageous—a threat to democracy, a threat to the survivability of this Parliament—if the committee reported to the House that the witnesses that the House said should come before this committee did not appear? If we reported back and said that those witnesses had not appeared, would it be something that you think could cause an election?
Law Clerk and Parliamentary Counsel, House of Commons
It's one of the options the committee has in the situation where it feels that a witness the committee wishes to have before it does not come before it. The committee, in that situation, has options. It can accept the situation. It could look for other ways to get the information. However, if it wishes to have this particular witness, and the committee itself doesn't have the power to enforce that request, then its option is to report the situation to the House.