Finance Committee on Oct. 8th, 2020

[The Chair, Liberal, Wayne Easter]

We go to Mr. McLeod followed by Ms. Dzerowicz.

[The Chair, Liberal, Wayne Easter]

I officially call the meeting to order.

We are now resuming the meeting that started on Thursday, October 8, of the House of Commons Standing Committee on Finance. The committee is continuing the consideration of committee business.

Today, we are going over a few things in case we get rusty, since we haven't been at this for a while. Today's meeting is taking place by video conference, and the proceedings will be televised and made available via the House of Commons website.

I would like to mention a few rules. Interpretation will work much like a regular meeting. You have the choice of floor, English or French. It's critical, to get the best sound for those doing the interpretation, that members wear their headsets. If you plan to alternate from one language to the other, you do need to change the interpretation channel to the language you are speaking. It may be best to pause briefly when you're switching over to give the interpreters time to catch up.

I know all members knew these points in the spring, but as a refresher, all comments should be addressed through the chair. Should members need to request the floor outside of their designated time, for questions or comments, they should activate their mike and state they have a point of order.

If members wish to intervene on a point of order that has been raised by another member, they should use the “raise hand” function. That will signal to the chair and the clerk your interest to speak. In order to do so, you should click “participants” at the bottom of the screen. When the list pops up, you see, next to your name, that you can click “raise hand”.

Please mute your mike when not speaking. If technical problems arise, like audio, translation or other, please advise me, and we will wait until that is resolved.

I will now turn to the suspension of the meeting. There was some confusion over this. You will recall I stated on Mr. Poilievre's point of privilege that there was a procedural technicality with his point, and the motion following his point.

We suspended for a few minutes, and I did not get complete clarity on what was really an unusual development to a great extent related to the fact that this is a new session of Parliament. I'll get to that in a moment. The meeting was not adjourned, as some implied, but was suspended by the chair. House of Commons Procedure and Practice, third edition, page 1098, states:

Committees frequently suspend their meeting for various reasons, with the intention to resume later in the day. Suspensions may last a few seconds, several hours, or span even more than one day.

On the question of privilege, some people have asked me, “How can you interrupt a motion and go to another motion?” When you're discussing a motion, the question of privilege does take precedence, and the chair has an obligation to deal with that. The chair, under parliamentary procedure, must hear the point. House of Commons Procedure and Practice, third edition, page 1060, states:

If a member wishes to raise a question of privilege during a committee meeting, or an incident arises in connection with the committee’s proceedings that may constitute a breach of privilege, the committee Chair allows the member to explain the situation. The Chair then determines whether the question raised in fact relates to parliamentary privilege. If the Chair determines that the question does relate to parliamentary privilege, the committee may then consider presenting a report on the question to the House. The report should:

clearly describe the situation;

summarize the facts;

provide the names of the people involved, if applicable;

state that there may be a breach of privilege; and ask the House to take such measures as it deems appropriate.

Ordinarily, presentation of a report to the House is a prerequisite for any question of privilege arising from the proceedings of a committee.

Mr. Fraser did raise a point from parliamentary procedure during the discussion, but he didn't challenge the chair on that point.

It's not in the rules, but running through my mind at the time was the problem that a point of privilege could be used to jump the queue on motions.

You'll recall at the beginning of the meeting that I stated the order of motions would be Ms. Dzerowicz's motion on pre-budget consultations. We operate under a standing order of Parliament that we must do those in the fall and report by December. That's an obligation for the committee.

I spoke with Mr. Julian and I told him I would have his motion dealt with second at the committee, as the proposals came forward. His motion was on privilege and documents as well. Mr. Poilievre's staff emailed me to say that Mr. Poilievre would be putting a motion. It didn't say it would be a point of privilege. That was the way the motion came to me.

My thinking was to get to the pre-budget consultations, so that our staff, the clerks and others, could start the process and line up witnesses and meetings while we continued to discuss these other issues.

Finally, the reason I said that the motion had a technical procedural problem related to the fact that we're in session two of the 43rd Parliament and there was prorogation of session one.

On prorogation, the House of Commons Procedure and Practice, third edition, pages 975 and 976 reads, “as soon as Parliament is...prorogued...parliamentary committees (with certain exceptions) lose their orders of reference, mandates, powers and members.” All studies undertaken by committees lapse.

Also in House of Commons Procedure and Practice, third edition, page 977, under the topic “Resuming Proceedings in a New Session”, it states:

Standing and joint committees that wish to resume a study they initiated themselves can do so by...adopting a motion to this effect....

If occasion arises and they consider it appropriate, committees that have the power to do so may re-adopt orders for the appearance of witnesses or the production of papers.... It is quite common for the House or a committee to adopt an order stating that evidence heard and papers received in a preceding parliamentary session be taken into consideration in the new session.

That leaves us with the current motion from Mr. Poilievre on his point of privilege. It doesn't technically have the evidence to make his point, because the evidence doesn't have a motion in it and there hasn't been a motion to bring that evidence forward from the previous session. Therefore, the Speaker could kick it back to us and say that the evidence isn't there.

I see Mr. Julian shaking his head, but those are the facts of the matter. We all know, those of us who were on the committee, what it means, but technically that's where we're at.

I'm going to go with a couple of options.

I'm going to rule the current motion as written out of order and ask Mr. Poilievre to bring it in order by putting in an amendment or bringing it back with a proposal to bring forward that evidence from the previous committee. However, I would rule it out of order as written.

I think that these are the options. Mr. Poilievre can take the motion back, sit in position three, and we'll go back to where we were, with Ms. Dzerowicz's motion first, and then come through the line and deal with his motion as amended. He could challenge the ruling of the chair. We'll see where that goes. We would have to deal with it in that respect.

I'll give members a moment to think about that. As I said, as written, I have to rule it out of order. It can be fixed, and I would suggest that Mr. Poilievre bring it back later in the meeting.

[Pierre Poilievre, Conservative, Carleton, ON]

On a point of order, Mr. Chair, given that I continue to have the floor—I had the floor when you suspended the meeting—you have now suggested an amendment and I accept that suggestion. Therefore, the evidence that you require is considered amended into the motion. We can continue taking a speaking list on that premise.

[The Chair, Liberal, Wayne Easter]

That is, if we get there. The next witness speaking—

[Pierre Poilievre, Conservative, Carleton, ON]

No, sorry, I do have it, Mr. Chair.

[The Chair, Liberal, Wayne Easter]

No, you don't.

[Pierre Poilievre, Conservative, Carleton, ON]

I move a motion to challenge the chair. I challenge chair.

[The Chair, Liberal, Wayne Easter]

That's fine. That's what I was going to suggest. To go that way, you have to challenge the ruling of the chair.

I'll ask the clerk to take a vote on the ruling of the chair.

(Ruling of the chair overturned: nays 6; yeas 5)

It makes me procedurally happy that we're back in procedure.

Mr. Poilievre, the next speaker on the list is Mrs. Jansen. I think we were going to her, but I do believe you had the floor. You should also move the appropriate amendment at the appropriate time, when you get a chance.

The floor is yours.

[Pierre Poilievre, Conservative, Carleton, ON]

Thank you very much, Mr. Chair.

If there is any confusion about what documents the committee is referring to, I am going to have my staff send a specific reference to the clerk electronically. We will give that body of evidence an official name that is identifiable and recognized by the committee so that there is no confusion about the documents in question.

As you know, Mr. Chair, committees can receive evidence in a variety of ways. Sometimes it's through documentary submission. Sometimes it's through testimony. Sometimes it's just through acknowledgement of what's happening in the world. For example, a committee can publish a report and include in that report observations made from what's in the public realm. It doesn't need to be formally submitted in the process of the committee for the committee to be aware of its existence.

I will make sure that you have a reference to the documents. As you correctly pointed out, we all know which documents we're referring too. On that basis, we will clarify.

I now cede the floor to Mrs. Jansen, who I believe is next on your list.

[The Chair, Liberal, Wayne Easter]

Before you start, Mrs. Jansen, could we establish a speaking order here?

You can click on your speaking order as we roll along here. The clerk can notify me who's next, maybe by email.

Mrs. Jansen, the floor is yours.

[Tamara Jansen, Conservative, Cloverdale—Langley City, BC]

I was very concerned about the fact that this exact process happened at the health committee. We made the exact same type of request. We wanted to get documents that were unredacted and that would then move to the law clerk for redaction. When we received those, what we actually got were documents that had been redacted by staff and had so much missing. How do we, as parliamentarians, do our jobs if...?

The interesting part about that was that the original argument against getting any of the documents was that, in a pandemic, the staff were incredibly busy—too busy too collect up documents for the committee. When we saw that the staff had been tasked with not just collecting the documents but redacting them, we were very shocked. To see the way that these documents were redacted for this committee was absolutely shocking. I mean, it's almost like they did it in health and they doubled down in finance.

Last week when I was speaking and I was interrupted, I was shocked again by the process. I've been elected to come to this place and to serve the citizens of my riding. It's shocking to see how we are cut off. The information is not given. We're basically told that, sorry, we have to stop; we're done here.

At this point in time, I'm going to yield the floor for the time being because I'm trying to wrap my mind around how it is that we find ourselves in a place like this. Our inability to actually be able to see any of the information is very shocking.

I yield the floor to my colleague, Mr. Poilievre.

[The Chair, Liberal, Wayne Easter]

Mr. Poilievre is not next on the list. The next on my list thus far is Mr. Julian first, followed by Mr. Fraser.

I do hope that people have Mr. Poilievre's motion in front of them. If you don't, notify the clerk and she can certainly see that you get a copy of that motion.

Mr. Julian, the floor is yours.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you, Mr. Chair.

First, I appreciate the committee ruling the way it did. I simply disagree with the ruling that you gave, Mr. Chair, with respect. I find you largely fair in what is often a difficult environment. The reality is that there is no doubt this is a breach of privilege. Given that every single member of this committee voted for the NDP motion in July asking for the documents, every single member should be supporting this motion of privilege.

If the committee had ruled otherwise and had upheld your decision, Mr. Chair, I had a privilege motion that had been vetted by the table and I would have brought that forward. We simply can't sweep this under the carpet. We have to deal with this. We have to pass this motion for many reasons. It is outrageous that over 1,000 pages of the documents we asked for were wholly or substantially redacted—in other words, censored—so that a committee in a democratic parliament has actually been denied access to information that the committee requested. It's pretty outrageous and that's why the motion of privilege is so important.

Second, the fact that every single member of this committee agreed to the motion means that we have a duty to uphold the responsibilities that come from making that decision as a committee.

Third, Mr. Chair, the Speaker has asked us to bring a report back. This is something that we cited a few days ago, but it bears repeating. The reality is that when the Speaker ruled, he said that the committee of finance has the ability to rule and bring this back to the House of Commons. For the moment, he was not able to rule when this was raised in the House of Commons prior to the committee being reconstituted, because he said it's not possible at this point to know whether the committee is satisfied with these documents, as provided to us. The Speaker says he doesn't know whether or not the committee actually agrees with the substantial censorship that took place.

We have a duty as a committee to report back and clarify to the Speaker that we are not satisfied with over 1,000 pages being substantially or wholly censored. We have a responsibility to pass this motion and to move on.

I believe firmly, Mr. Chair, that the Speaker will see this as a clear violation of privilege. We have a responsibility to move forward quickly on this. I hope that my Liberal colleagues, who seemed to want to delay a decision on this matter last week, will move promptly, so that we can have a vote, refer the proper report to the Speaker and then the Speaker can make the ruling and the House of Commons can make the decision about privilege.

This is an important matter. We shouldn't be spending a lot of time on it. We should be moving forward.

[Tamara Jansen, Conservative, Cloverdale—Langley City, BC]

I have a point of order.

The hands have to be removed again once you're finished speaking. Normally the speaker can do it themselves.

[The Chair, Liberal, Wayne Easter]

Thank you. I don't think I can. I'm not sure.

Good. Mr. Julian removed his.

We have Mr. Fraser, followed by Mr. Gerretsen, followed by Mr. Kelly.

[Sean Fraser, Liberal, Central Nova, NS]

Thank you, Mr. Chair.

Your suggestion that we should have the clerk circulate the motion would be helpful. I don't have the written copy of Mr. Poilievre's motion in front of me. Madam Clerk, if you wouldn't mind circulating that, it would be helpful.

One thing I wanted to raise—and, Mr. Chair, you got into this during the onset of your remarks—was the nature in which the various points were made and the order in which we've been dealing with things. Obviously, the first motion on the table was for Ms. Dzerowicz to move forward with pre-budget consultations, which will be required to table a report should we choose to do pre-budget consultations several sitting days before the House rises. There is an urgency to it.

In my view, and respectfully, I think there are committee members who take a different point of view. Mr. Poilievre's point of order, in my opinion, was an attempt to jump the line in order to have this matter dealt with in advance of Ms. Dzerowicz's. You correctly pointed out that a point of privilege would take precedence in the order of discussion.

There are two points that I will make, the first quickly because we got into it during our last meeting. The second I'll try to flesh out a little.

The first really touches upon the—

[The Chair, Liberal, Wayne Easter]

I hate to interrupt, Mr. Fraser.

Mr. Falk, just in case somebody comes into the room yelling at you or something, note that your mike shows as open, on my end.

[Ted Falk, Conservative, Provencher, MB]

I think I have it muted on my device here.

[The Chair, Liberal, Wayne Easter]

Thank you.

Go ahead, Mr. Fraser.

[Sean Fraser, Liberal, Central Nova, NS]

If anybody walked into Ted's office, I don't think they'd be yelling at him. It's quite all right.

The first point is just to reiterate the question about whether there is in fact an issue of privilege to be dealt with.

My view upon reading the section immediately following the portion you quoted from Bosc and Gagnon is that because the committee has the ability to deal with this grievance or issue in another way—namely by reaching out to the government and saying we're not satisfied and that we can do this a different way—I think we have the ability to deal with it that way. It would make it not a point of privilege but instead an ordinary motion of the committee or a point of debate or grievance, which would negate the possibility of this committee's hearing a point of privilege.

If, however, I am incorrect on that particular issue, I don't view this to be a violation of the committee's privilege. There may be issues concerning the disclosure of documents we want to prod further into, but following the adoption of the motion in July at finance committee, the motion gained—to speak to Mr. Julian's point—significant support from all parties. Public servants got together to work really hard to gather relevant documents. They provided the committee with literally thousands of pages.

The motion adopted by the committee stipulated:

that matters of Cabinet confidence and national security be excluded from the request; and that any redactions necessary, including to protect the privacy of Canadian citizens and permanent residents whose names and personal information may be included in the documents, as well as public servants who have been providing assistance on this matter, be made by the Office of the Law Clerk and Parliamentary Counsel of the House of Commons.

Later I'll get into who was responsible for dealing with which aspect.

Exemptions were, in this instance, applied by our professional and non-partisan public service. The deputies at ESDC stated in their transmittal letter that the approach adopted was to disclose as much information as possible within the scope of the committee's motion.

No exclusions were made on the grounds of national security. A substantial amount of information that would normally fall under cabinet confidence was provided to the committee in keeping with public disclosures made by members of the Queen's Privy Council of Canada. Information that would fall under cabinet confidence but that was not related to the Canada student service grant request and, therefore, was not relevant to the committee study was in fact withheld. This was reiterated in the transmittal letter sent to the committee by relevant deputy ministers.

The motion clearly states that cabinet confidence should be excluded from the request. That's as clear as day in the way it's written. When I read the motion as it is written, it doesn't say that those particular exemptions should be made by the Law Clerk and Parliamentary Counsel of the House of Commons. Cabinet confidences were never in fact requested by this committee, so there would have been no duty upon the government to disclose them—which is obvious: I think we all want to protect cabinet confidences.

As outlined in the other transmittal letters to this committee, departments are obliged to protect personal information under the Privacy Act, unless the individuals to whom that information relates consent to its disclosure or disclosures otherwise authorized in certain specified circumstances, or the public interest in disclosure clearly outweighs any resulting invasion of privacy.

Information that would have constituted personal information was released in certain instances when these documents were disclosed, wherever it was determined, including by the Clerk of the Privy Council, that the public interest outweighed the invasion of privacy.

The clerk also made the decision, as was communicated in his transmittal letter, that for personal information in certain instances, such as the names of a public servant's family members and the phone numbers of employees at WE who were not Craig or Marc Kielburger, the public interest did not in fact outweigh the invasion of privacy in those circumstances.

The deputy minister of finance, for his part, noted, “The type of personal information that remains protected consists of the identity of unrelated third parties where their opinion or view relates to an unrelated matter to this inquiry, as well as personal e-mail addresses and phone numbers.”

The deputy minister went on to note with respect to page 190 and pages 194 through 213:

...further to consultation with the originating stakeholder, authorization to disclose this information was not given as it constitutes personal information as defined under Privacy Act. Furthermore this information is considered proprietary to the third party. The contents of this information is not relevant to the funding agreement or the Student Grant Program therefore, it has been severed in its entirety.

Additionally, the transmittal letters from the Clerk of the Privy Council and the Department of Employment and Social Development note that a limited waiver of solicitor-client privilege was issued because they believed it was in the public interest to do so.

The question of parliamentary privilege is not a black and white question. Committees no doubt can request what documents they wish, but they can't compel their disclosure. The public servants who have custody of these documents have a duty to hold in confidence some of the information that comes into their possession in the course of their duties. There is legislation that binds them.

As outlined in the document “Open and Accountable Government”, a natural “tension” exists “between that obligation and the request of parliamentarians for disclosure of that same information” that the public service feels the need to protect. They further note in that document that, “In practice, officials should endeavour to work with Members of Parliament...to find ways to respond to legitimate requests for information...within the limitations placed on them.” This comes back to my earlier point that I think we can engage in a conversation with government, rather than jump to a question of privilege before the House.

Members of the committee should also note that in 2010, the previous government reaffirmed the long-standing principle from 1973 governing the production of documents as part of their response to a report to the public accounts committee at the time. Those principles include criteria under which documents should be exempt from production, which, of course, include cabinet documents and those that include Privy Council confidence. Cabinet confidentiality, for what it's worth, is not some label you stick on something to prevent disclosure of documents. It's fundamental to our system of parliamentary democracy. It allows ministers to have candid conversations and, when appropriate, to shift their minds and be persuaded by others. It's essential that these deliberations remain private. That's recognized by the privy councillors oath. The Supreme Court of Canada has affirmed the importance of cabinet confidentiality. In fact, the court noted that judicial independence, parliamentary privilege and cabinet confidentiality all contribute to the ability of each branch of government to perform its respective role without undue influence. It's a natural tension.

On personal information, while parliamentarians are not subject to the Privacy Act restrictions, it does apply to the government institutions from which the committee sought information. This also creates tension. Providing unredacted personal information, even to the law clerk, would consist of a disclosure under the relevant legislation. As such, it requires the care and attention afforded to it by public servants. This personal information might lawfully be disclosed under certain scenarios, including when the individual at issue authorizes the release of the information and when the public interest clearly outweighs the privacy implications, as was the case, as referenced previously, in this instance.

Additionally, the information could be released for the purpose of complying with an order by a body with the jurisdiction to compel that information, but we made it pretty clear previously, as I think everybody would agree, that a House committee doesn't have such jurisdiction, so it doesn't fall under that scenario.

With all of this in mind, I find it important to note that the committee's motion asks the law clerk to make redactions in relation to information about public servants above and beyond what the government, in fact, made. These are redactions that officials did not make and would not have made in accordance with the Access to Information Act. Despite what's being suggested, this isn't a breach of our privileges as committee members.

The opposition seems to be claiming that the only option in front of this committee right now is to report the matter to the House. With great respect, I don't view that to be correct. The committee has not yet asked the government for the information that public servants applied exemptions to—and that are outlined above, in the remarks I just gave—under very narrow and specific grounds. For example, if members of the committee want information pertaining to family members of public servants, they could ask, but we haven't done that as a committee. Parliamentary privilege in no way, shape or form absolves the government of its obligations to protect personal information and cabinet confidences. In fact, the motion we put forward specifically excluded a request for cabinet documents. Despite this, the public service made a serious effort, and I would say a sincere effort, to provide as much information as possible.

In light of this information and the examples I've used, this doesn't appear to be a breach of privilege, let alone raise a matter of privilege at all.

Thank you, Mr. Chair.

[The Chair, Liberal, Wayne Easter]

Thank you, Mr. Fraser.

We will turn then to Mr. Gerretsen. Next up will be Mr. Kelly.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Thank you very much, Mr. Chair, for the opportunity to speak.

I have a lot to talk about when it comes to this motion specifically, and I have quite a bit to offer. I'm really interested in hearing what some of the other members have to say before commenting on that. I guess I'll defer talking about that until a little later.

What I really want to talk about right now, Mr. Chair, was what we just witnessed, and that was a successful challenge of a ruling from a chair. To start with, I believe that you handled that in an extremely fair way. You pointed out the problems with the ruling, which no doubt came from discussions that you had off-line with clerks and people who understand the rules even better than somebody like you who has been around for a long time. I mean that will all due respect.

The reality of the situation is that you didn't just make a ruling. You also provided an avenue for how the motion could be corrected. I find it extremely troublesome that we are now on to the second time in a committee that members of the opposition, not happy with an outcome, decide to challenge the chair. It does a massive disgrace to the institution that we have, the procedures that we have and the parliamentary establishment from where we've come.

I saw Mr. Julian shaking his head the entire time that you were making that ruling. Then, when Mr. Julian went to speak, he didn't once address a procedural problem with your ruling. In fact, he just went on to say why the motion was important to pass. That's fair enough.

Mr. Chair, you gave an avenue as to how we could get in order and put the motion in order. Mr. Julian should have taken the lead of Ms. Blaney in the PROC committee, the other time that a challenge occurred, where she too had a difficult problem in terms of wanting to see the motion passed, but she understood that the content of it was out of order. It's unfortunate, Mr. Chair, that Mr. Julian could not bring himself to see the same way Ms. Blaney did.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I have a point of order, Mr. Chair. That personal attack, sir, is absolutely inappropriate. The member should know that I am well versed in parliamentary procedure, and I simply disagree both with his comments and also with your ruling.

[The Chair, Liberal, Wayne Easter]

I think that's basically a debate.

Mr. Fragiskatos, go ahead on your point of order.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Mr. Chair, I fail to see how the point raised by Mr. Gerretsen constitutes a personal attack. If we can't engage freely in debate—