Government Operations Committee on June 7th, 2007

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Thank you.

We've had significant testimony from many people in the field suggesting the reasons for confidentiality, competitive arrangements, and the first-, second-, and third-person relationship with the government. Some of us on this committee share a concern that if we move forward and establish clearer obligations, it might impugn the efficacy of the contracts in place right now between third parties and the government. We just don't want to run into a situation in which we are either creating a liability or creating an indefensible position with the contractual arrangements that have already taken place between the government and/or third-party officials.

We want clarity; we want information, but where do we start, where do we stop, and what are our bounds and parameters within our rights of a committee in asking for further information that may or may not complicate or create undue duress for departments or agencies?

Would you have any thought on that?

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

Madam Chair, this is not a novel subject. It comes up fairly frequently, to the point where I'm almost carrying around material on it all day long. I've had occasion to be before other committees recently on this, so I can't say that I'm totally surprised by the question or have come here entirely unprepared.

I'm looking at the motion, and the motion appears to propose that there be a moratorium on the sale of those buildings so the department can provide the committee with relevant studies and information. I take it that these studies and this information are the documents to which Mr. Kramp is referring when he is talking about seeking a document.

Given the nature of leasebacks, I take it that these documents would contain financial or commercial information of a kind that might be confidential to the interests of third parties contracting or dealing with the government. Is that right?

[A voice]

Correct.

[Rob Walsh]

Okay, I think I have the picture.

The general rule is easily stated, although it doesn't get you very far. The general rule is that committees have unlimited authority to call upon anyone, including the government, to produce documents for the committee.

Having said that, and maybe feeling a little warm all over having heard that, you then ask yourselves where you are. Well, not very far, frankly, because there are circumstances in which the government, or whoever the individual is, has bona fide legitimate reasons for not wanting to lose the confidentiality of these documents. Essentially what we're talking about here is confidentiality.

I should first refer you to Marleau and Montpetit, because that, of course, is our operational bible. This issue is discussed on pages 864 and 865. It provides an example, not exactly on all fours with what this committee is dealing with, but it's somewhat similar, on page 865:

Although the House has not placed any restrictions on the power to send for papers and records, it may not be appropriate to insist on the production of papers in all cases. In 1991, the Standing Committee on Privileges and Elections pointed out that:

—and this is contained in a report of that committee—

The House of Commons recognizes that it should not require the production of documents in all cases; considerations of public policy, including national security, foreign relations, and so forth, enter into the decision as to when it is appropriate to order the production of such documents.

In the footnote to this passage on that page, there is a particular case that emerged. A committee was not getting a document, and it reported to the House that it wasn't getting this document:

The Committee presented a report which concluded that the Standing Committee on Justice and the Solicitor General had been within its rights”. This is the committee on privileges and elections, which is now the Standing Committee on Procedure and House Affairs. It looked at what was going on at this other committee on justice, and it reported to the House that the other committee, the committee on justice, was within its rights “to insist on the production of the two reports and recommended that the House order the Solicitor General to comply with the order for production.The House subsequently adopted a motion to that effect, with the proviso that the reports be presented at an in camera meeting of the Standing Committee on Justice and the Solicitor General.

Strictly speaking, the process here for this committee, if it's not provided with the documents it's seeking, is to go to the House, as that committee did. Or a member of the committee, or the chair, perhaps, on behalf of the committee, can raise a point of privilege or make a report to the House to the effect that you feel that your privileges have been breached. The House may then refer to the procedure and house affairs committee, then in turn report to the House. And the House may or may not concur with the finding that there was a breach of privilege and may or may not concur with an order to be given that the documents in question be produced.

That's basically the process. It may be productive, it may not be.

The other consideration you might want to look at—and I know this is not your favourite reading, but it comes into your life from time to time—is the Standing Orders. It is the document that sets out the mandate of the respective committees.

It might be informative for this committee on this occasion to look at the mandate of this committee, the Standing Committee on Government Operations and Estimates, and compare it to the work and the mandate of the public accounts committee.

Basically, government operations—and I'll explain that in terms of the Standing Orders in a moment—As the title of your committee indicates, government operations and estimates is about future spending, plans for spending. Public accounts is about what you spent and whether it was spent well.

If you read Standing Order 108(3)(c)(ii), which is the mandate provision relating to this committee, it talks about looking at the effectiveness, management, and operation, together with operational and expenditure plans.

When it refers to specific operational and expenditure items, as it does in subparagraph (iii) of paragraph (c), it refers to specific operational expenditure items across all departments and agencies. It is meant to be a government-wide review of such specific operational expenditure items.

I mention that just as a comparison to the public accounts committee, which then looks later at how the government spent the money it was given to spend. Of course, the public accounts committee also considers reports of the Auditor General. I mention this to you to indicate where your mandate comes from—from the House. The House tells you what you can do, and that's your reference point to see if what you're doing falls within it. I'm playing the part of your legal advisor in saying there's an argument to be made—it's just an argument, and we lawyers make whatever argument you want--that seeking documents relating to what deals the government may have made may not really be within the meaning of plans in terms of what government may plan to spend.

I don't know to what extent these documents fall within one category or another, but you're talking about studies of information on the impact of these leasebacks. Arguably studies done on the impact of leasebacks as a vehicle relating to the transfer of title to property as a financial study may well be something that's of legitimate interest to this committee relative to whether this is broadly speaking a valid way of proceeding in terms of the public interest.

On the other hand, to seek documents that show what particular leaseback deals either have been made or are in consideration with particular parties arguably may be going beyond what the public policy objectives of this committee or the public interest objectives of this committee are, and instead be an inquiry into particular transactions. I say this further, if I may, Madam Chairman, in the sense of the legal context in which this committee operates. I know it's true that committees have virtually an unrestricted power to demand documents. It's unrestricted in the sense that no one can go to court and get a court order saying you can't do it. But the committee is a public authority, as is the House, and it has legal powers. These are legal powers that you have. Generally speaking, in a legal context, legal powers are exercised pursuant to the granting of the powers in a statute, and generally speaking they're expected to be exercised with reason and in some cases with due process, etc.

You can say that doesn't apply to the committee of the House because who's to say what they're supposed to do. Maybe no one's out there who can tell you what to do, but this doesn't mean that you can disregard, in my view—Speaking now as a legal advisor to this committee and other committees, I think we have to operate in the House of Commons, not withstanding our exemptions from many laws by virtue of parliamentary privilege, in a responsible manner, as if the laws of the land do apply to us. This is partly because it's the expectation, in my view, of Canadians that all its public figures, public officials, and public institutions will govern themselves generally speaking along the lines of what other institutions do, and that is to say act reasonably and allow for appropriate process.

Having said that, this committee is the judge of whether it shall or shall not go forward in pursuit of a document. Make no question about that. There's no one else other than the House of Commons itself who can interfere with the judgment of this committee about what it wants to pursue. If you are held accountable for that, it's in the court of public opinion, as they say. I just counsel you in the sense that there is a legal context in which you are operating, as we all operate in this country. You can almost say it's like a broad cultural value that's sometimes called the rule of law, but the rule of law is a legal principle that applies more in terms of justiciable issues in a court. But we are in a culture that has legal standards, legal values, and legal expectations, and it's one of reasonableness and process.

You have also in this legal context of course the Auditor General Act. The Auditor General Act gives the Auditor General, as a public official, the power to seek information from government regarding its spending and contracts, etc. I'm sure many of you are well aware of that statute. There are corresponding provisions relative to the Auditor General's work in the Financial Administration Act. That's out there. So there is the Auditor General as an officer of Parliament who could well be asked to look into the leaseback dealings of the government as to whether there's value for money and this sort of thing.

The question you have to ask yourself as a committee, and maybe I'm going beyond my brief here, is whether in what you're looking for you're going further than what's appropriate for a parliamentary committee, and whether in some respects—And this is an issue the public accounts committee in the past has faced, where it was faced with some difficult situations taking place in government. I remember the chair at the time saying this committee is not getting into micro-management, we're not getting into managing government, we're not getting into trying to determine whether the right management decision was taken at a given time; we want to ferret out what took place, in terms of broad principles of probity and honesty, and so on, but we're not getting into management.

So in a similar fashion, you may ask yourself whether in fact what you're asking for is getting into micro-managing or entering into consideration of what is essentially the government's area of responsibility in managing the public funds they're authorized to expend.

While I agree with you, and I certainly want to affirm, and will be the first one to shout the loudest about this, that committees can do what they see fit—There's no question about that, and we don't have a democracy in this country unless this House of Commons and its committees are recognized to have that prerogative, sometimes referred to as the “grand inquest of the nation”. You can't have the House of Commons as the elected chamber carrying out inquiries in the public interest if in fact someone else out there can tell you, no, you can't do that. That is a privilege the House of Commons and its committees enjoy, but it's a privilege, in my view, that has to be or ought to be exercised responsibly—although there's no one who can tell you what that is. That's your own judgment, and I'm sure you will look at that in this frame of mind.

That's about all I would have to say on the position of this committee with respect to its seeking documents from the government.

[The Chair, Liberal, Diane Marleau]

Thank you, Mr. Walsh.

Mr. Moore.

[James Moore, Conservative, Port Moody—Westwood—Port Coquitlam, BC]

Thank you very much, Mr. Walsh, for being here.

I chatted briefly with Ray—who I don't think will mind if I say this—outside the East Block yesterday, and I think there's honest intent on his behalf and that of Madame Bourgeois, Madame Nash, and everybody over there with regard to this issue. So keeping in mind what Mr. Walsh has suggested, and because the wording of the motion is quite vague and the committee is not convinced of the benefit, and so on, that relevant studies and information on the impact of the leasebacks—I think the information that Madame Bourgeois may be looking for may be very different from what Mr. Bonin is looking for and from what Mr. Simard is looking for.

As this is written, I think the committee will be asking the government to exceed what Mr. Walsh has described, which is the reasonable self-restraint of the public interest with regard to the confidentiality agreements the federal government has signed with regard to the sale and leasebacks and the marketing that is going on right now. But there is other information that may not have been brought forward by the minister or the deputy minister or the ADM responsible for real property when they came before the committee, which committee members may not be satisfied with. That's fine, and committee members have every right to ask for whatever information they wish.

So what I would suggest, then, as an alternative to this motion—and this doesn't require a motion—is that committee members put together a list of questions and a list of the very specific information that individual committee members haven't seen and would like to see. We would offer the Department of Public Works the chance to provide a briefing for any committee member who wants a full briefing on this issue in private, one on one, so committee members can have access to the ADM responsible for real property and ask individual questions.

But as this is written, I think Mr. Walsh has been very clear that the motion asks the federal government to violate confidentiality agreements we have signed with people with whom we are doing business with regard to the sale and leasebacks. But there's information beyond that, which many committee members want, and which they feel they haven't had access to, which we'd be more than prepared to deliver. If individual members who have those questions would be clear on what those questions are, I would be glad, as the parliamentary secretary to the Minister of Public Works, to present those to the minister for a written response as soon as possible.

[The Chair, Liberal, Diane Marleau]

Mr. Bonin, you have a point of order.

[Raymond Bonin, Liberal, Nickel Belt, ON]

Madam Chair, through you to Mr. Walsh, could I ask if sharing of information with members of Parliament in an in-camera meeting is a violation of confidential information?

[Rob Walsh]

Madam Chair, it's not a violation of confidential information that we can say here, since we're not a party to the terms of the agreement setting out the confidential requirements. I don't know what those confidentiality requirements are, but generally speaking this committee is not subject to whatever the terms of those agreements might be.

The question is, if there is such a contract, would the minister be breaching that? While confidentiality generally means to me—Well, I guess, my short answer is no, in the sense that I think the minister has a legal obligation, in constitutional terms, to be here and account. But I think he has an obligation—and this committee, arguably, in the public interest, has an obligation—to take whatever steps can be taken to ensure the greatest amount of confidentiality, so that the information is not shared beyond what's immediately required for purposes of the business of this committee.

Let's not kid ourselves: there is a problem with in-camera meetings, historically. Ministers—and not just of this government, but also earlier governments—have shared the same reservations about in-camera meetings.

But that is the only opportunity, really, Madam Chair, to go the way of an in-camera meeting and just hope that in fact it will be successful in maintaining the confidentiality associated with the documents.

[The Chair, Liberal, Diane Marleau]

Mr. Wrzesnewskyj.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Actually, I was about to raise the same point about in-camera meetings.

I'll follow up on Mr. Moore's suggestion that questions be prepared and forwarded and that answers come back; that process is available, but it's not nearly as full and enlightening a process as having witnesses come forward before committee. It doesn't allow the to-and-fro that provides greater insight and understanding. I do believe an in-camera meeting—with the understanding that it truly is an in-camera meeting, because at times it can be an issue—provides the method and the forum to address these sorts of serious issues.

[The Chair, Liberal, Diane Marleau]

Ms. Bourgeois.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Thank for travelling to meet with us, Mr. Walsh.

First of all, I want to restate a little what I said at our last meeting. It must be clearly understood that this motion does not bear the colour of a party; it is not intended to be partisan. Nor is it a motion designed to prevent the sale of these buildings at all cost. Its purpose is simply to demand that we be provided with the information we need to do our work as members properly.

We have held four meetings of one and a half or two hours on these buildings. However, we have never been able to obtain the desired information. I find that quite pathetic. This is a matter of respect. You ask me what information I'm talking about. I'll give you an example. In 2003, a deputy minister at Public Works Canada appeared before this committee and said she had planning results indicating that the government was an efficient property manager. From what she said, the salaries of the employees who were sorting out those buildings was the only inefficient aspect.

The minister left telling us that the government was not a good property manager. I asked him on what he based that statement, but he did not answer me. We tried to determine even just a small percentage of the amount paid to the banks. We also wanted to know what would be done with the money from the sale of the buildings. Those people never gave us the slightest information about any planning concerning that money. They told us that it would be used to reconstruct other buildings, but without specifying the actual cost of those repairs. They told us they did not have a plan and did not know which direction to take on this issue.

I would like to point out to you that the money from the sale of those nine buildings also belongs to Quebeckers. If you are not accountable to Canadians, I am accountable to Quebeckers. I want my questions answered. I don't want to exceed my rights, but I want answers.

The second time the minister came and testified before this committee, we literally wasted our time. Everything is always confidential. I believe we are able to hold our tongues. We know just how far we can go. It's not a matter of boycotting the minister or the sale of buildings. It's simply a matter of respect for us as parliamentarians, our accountability and the Liability Act, under which we have obligations.

[James Moore, Conservative, Port Moody—Westwood—Port Coquitlam, BC]

[Inaudible - Editor] provide studies.

[The Chair, Liberal, Diane Marleau]

Now it's Ms. Nash's turn.

[Peggy Nash, NDP, Parkdale—High Park, ON]

Could I just ask a question?

We're in the middle of a discussion about a motion that is--

[The Chair, Liberal, Diane Marleau]

The motion is on the floor, and we're having a discussion.

[Peggy Nash, NDP, Parkdale—High Park, ON]

The motion's on the floor, and it's a thorny question that could take a few minutes.

This is really more a point of order. Because I think it's much less contentious, would it be possible to deal with the motion that I gave notice of at the last meeting, two days ago, and then return to this motion? My concern is that I actually raised this matter about three or four meetings ago; in another six minutes our time will have run out, and we will not have dealt with this motion.

[The Chair, Liberal, Diane Marleau]

Ms. Nash, we cannot have a second motion on the table while we're discussing a motion. That's the issue.

[Peggy Nash, NDP, Parkdale—High Park, ON]

We can't suspend the discussion of this motion?

[The Chair, Liberal, Diane Marleau]

You'd have to have unanimous consent to suspend and move to another motion.

[Peggy Nash, NDP, Parkdale—High Park, ON]

Do we have unanimous consent?

[The Chair, Liberal, Diane Marleau]

No. Let's finish this one then.

Did you want to address this particular motion, or did you want to let the speaker go?

[Peggy Nash, NDP, Parkdale—High Park, ON]

I'll let the next speaker go.

[The Chair, Liberal, Diane Marleau]

Okay.

Monsieur Simard.