Thank you, Mr. Chair.
I hope everyone can hear me well.
Thank you, Mr. Chair, members of the committee, for your invitation to appear today following the motions that were adopted by this committee on July 7 and November 19, 2020, respectively, ordering the production of documents related to the WE Charity and the social enterprise “Me to We”.
As the Law Clerk and Parliamentary Counsel for the House of Commons, I am pleased to be here today to address any questions that the committee may have with respect to these motions. I hope that my answers will assist the committee in its study.
Before turning to the committee's motions, I want to take a few moments to highlight the committee’s powers to send for documents. The House has certain powers that are essential to its work and part of its collective privileges. As the “grand inquest of the nation”, the House has the right to institute and conduct inquiries. This right is part of the House’s privileges, immunities and powers, which are rooted in the preamble and section 18 of the Constitution Act, 1867, and section 4 of the Parliament of Canada Act. Indeed, these rights and this fundamental role have been recognized by courts and include the constitutional power to send for persons, documents and records.
As Speaker Milliken stated in his landmark ruling of April 27, 2010, regarding the production of documents to the Special Committee on the Canadian Mission in Afghanistan, the rights to order the production of documents are “fundamental to [Parliament’s] proper functioning” and are “as old as Parliament itself”.
Speaker Milliken went on to say the following:
The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the type of papers likely to be requested, the only prerequisite is that the papers exist—in hard copy or electronic format—and that they are located in Canada....
No statute or practice diminishes the fullness of the power rooted in the House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.
Parliament has the right to send for any and all documents that it believes are necessary for its information. The only limitations are that the document or record must exist, and it must be located in Canada.
The House and its committees’ powers to order the production of records constitute a constitutional parliamentary privilege that supersedes statutory law, which is why committees are not constrained by the statutory obligations contained in legislation like the Access to Information Act or the Privacy Act.
When committees ask for documents, they are entitled to receive them, subject only to the exceptions or limitations to disclosure explicitly provided for by the committee itself.
With that said, in exercising this power, I always recommend that committees should strive to balance their roles as the “grand inquest of the nation” against the legitimate public policy considerations that may justify limiting the disclosure of the requested information in a public setting—be it Cabinet confidence, national security or other claims of confidentiality.
When faced with a confidentiality claim, a committee has a number of options. It can decide not to insist on the production of the documents. It can decide to put in measures that would safeguard the confidential nature of certain information, or it can simply maintain its original request for the information.
Some of the measures that a committee could take to ensure that information is kept confidential while it is being consulted include reviewing the information in camera, having my office review and/or redact documents, as appropriate, to ensure that a claim for—