Procedure and House Affairs Committee on May 8th, 2007

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you. I would agree with Mr. Lukiwski that as a matter of principle--and the practice that we follow--in camera meetings be kept to the absolute minimum, given that they should be treated as an exception to our parliamentary practice of openness and transparency.

In looking at the options, I think option two makes a lot of sense, but the ideas presented in option three are a pretty good list of guidelines as to where we might want to make otherwise confidential matters public. I think it's important that when a witness comes before us with an expectation of confidentiality, a warning be given to that witness who is giving evidence in camera that there could be situations in which confidentiality will be broken. These might include perjury, contrary evidence, some overriding public interest, or whatever. I find that the paper provides a pretty sensible list of the sorts of situations we might want to override.

In terms of how you actually effect that override or that disclosure, I would think if we had such a useful list, then a particular situation could be measured against the list, and a majority vote of the committee might suffice. I'd be very interested in the clerk's and other officials' recommendation or opinion as to whether it would be appropriate to then provide that the House always be in a position, if called upon, to override the decision of the committee.

It just seems to me that it would be a sensible hierarchy to respect.

[The Chair, Conservative, Gary Goodyear]

Madam Redman--I did catch your hand up--please go ahead, before we move to our witnesses.

[Karen Redman, Liberal, Kitchener Centre, ON]

Thank you, Mr. Chair.

I would be very interested to hear from the witnesses, and as you pointed out, Yvon can read the blues. I don't disagree with the options. I'd like time to take this away and mull it over, because I haven't had time to study this. But it just seems to me that as much as it's in camera and we can subpoena witnesses and they can be under oath, I think we would all acknowledge that this is not a court, so it would seem to me--and I hope this is dovetailing with what Mr. Owen said--that the only reason to release this would be some compelling public good or some way to avert a public disaster. It would have to be a fairly high bar in order to do this, and I'd be interested to hear historically what we have done in the House.

[The Chair, Conservative, Gary Goodyear]

Okay.

I will open the floor to our witnesses to offer comments on the issue.

Madam O'Brien.

[Audrey O'Brien]

Thank you, Mr. Chair. I think the criteria to which committees have held themselves in terms of allowing in camera discussions to become public have been quite high. The decision has always rested with the committee in question by majority vote, as far as I know, and we don't have a list of the instances where that took place, but we could certainly provide it to the committee for the next meeting.

I think the question--as Mr. Owen describes it, the most important decision to be taken by the committee--is when to go in camera. If that does not become a common practice, if that in itself is seen as an extraordinary measure, then everything that happens in camera is treated with the seriousness this committee would like it to have. I think there's a lot to be said for the whole question of the expectations of people who testify in camera, and if they are forewarned that under certain extraordinary circumstances their testimony might be made public, then I think that gives them fair warning. These types of criteria that come under the third option, in the paper that you have before you, I think give quite a range of possibilities that are, again, within those force majeur situations.

So I think it really is pretty well covered, but I agree with Mr. Owen that the main question becomes, when do you go in camera and for what reason? I think once that decision is made, and wisely made, you've got yourself on the right road.

With regard to whether or not the House should have an ability to override a decision of a committee, even if the committee were guided by this quite high bar that is set by these principles, that's a safeguard that you could always build in, and we could think about mechanisms for so doing, because the House does not traditionally reach into a committee to interfere in how it's organizing its affairs.

But I notice, for example, there's practice in the United Kingdom--and we could find out more details about this--that says on occasion the House has ordered unreported evidence to be laid before it. That's the other side of the coin.

[The Chair, Conservative, Gary Goodyear]

Thank you, colleagues. We obviously have our member back from the NDP.

I'm going to sway to the will of the committee, but it was my intention to summarize where we are right now and then defer this.

Which way would the committee like to go?

I'm sorry. Monsieur Godin, are you able to stay or are you called away again?

Okay. The committee has, with great respect to you, sir, asked that we defer this discussion because you weren't able to be here. Shall I summarize for the member and bring the member up-to-date?

Monsieur Godin, we are discussing the issue of publishing in camera information. We're being very specific today on the deliberate release of in camera information. The committee would make a decision based on whatever circumstances this committee decides and then release the information that was discussed at an in camera meeting. We are not dealing with the leaking of in camera without the authority of the committee.

That is a motion before this committee, but we are discussing that at some point in the future. Today we're talking about under what circumstances, if any, would in camera proceedings be released and made public. At this point, there has been some discussion around the table, which I suppose I could summarize in that the first concern is that chairs and committees have to have some education and perhaps guidelines when a committee meeting would be held in camera, and that should be very restricted--available but not openly used. That's the first thing I'm hearing.

The second thing is there are times when in camera information might need to be released to the public, and it is then the committee's desire, if that's the way we're going to go, that we should have a list that is as inclusive as possible, yet allows some flexibility for the committee to make its own decision, based on a majority vote.

Colleagues, have I summarized the discussions of the last 15 minutes well?

[A voice]

Yes.

[The Chair, Conservative, Gary Goodyear]

All right. I will open the floor to Mr. Godin now.

Mr. Godin, please.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Under what circumstances would such a decision be made? I missed 15 minutes of the meeting. Perhaps you spoke about it then.

I have always believed that in camera means in camera. I don't know whether we've already discussed cases involving documents. Documents can be on anything. In such cases, if we want to make the matter public, the meeting should not be held in camera. The decision may be made to hold an in camera meeting and then later the majority may vote to make a document public. We need to protect ourselves.

For example, the majority might decide to vote to make a Bloc Québécois document public, although it was tabled in an in camera meeting. In that case, the Bloc Québécois felt safe in the knowledge that the meeting was being held in camera to present the document. I know that hockey is everyone's least favourite subject, but I find that we are skating on very thin ice when it comes to in camera meetings, unless all the parties agree, as well as any witnesses present. This decision must be made unanimously by all individuals who attended the in camera meeting. That is all I am prepared to support. I cannot imagine breaking the confidentiality of an in camera meeting, whether we're talking about documents, witnesses or anything else.

I gave an example where the majority might seek to undermine a party that, for example, decided to talk about a particular subject during the in camera meeting. To put the shoe on the other foot, the majority, including the Bloc Québécois, the NDP, and the Conservatives, could just as easily turn against the Liberals. If the three opposition parties ganged up on the Conservatives, it would be the same thing. I have a great deal of respect for the principle of in camera meetings. In camera means in camera.

[The Chair, Conservative, Gary Goodyear]

Thank you.

Madam Picard.

[Pauline Picard, Bloc, Drummond, QC]

I agree with Mr. Godin that in camera means in camera. We could have serious problems if comments or confidences exchanged during an in camera meeting were disclosed and this turned against us. No one would dare say anything any more. We wouldn't have any more witnesses, since they would always feel the sword of Damocles hanging over their heads. Witnesses, as well as ourselves, must have the assurance that in camera means in camera.

For one reason or another, an individual may believe that a fact is sufficiently serious to require disclosure at any cost. The expression speaks for itself: we are talking about comments made behind closed doors. This principle must be respected. There shouldn't even be anyone here other than ourselves. Our in camera deliberations should be really just amongst ourselves.

An exception was made with regard to Mr. Guité. In such cases, when we realize that a serious mistake has been made and we wonder whom to turn to for advice or permission to publish in camera material, I think we need to adopt a procedure based on unanimity. In order to make in camera meetings public, we must ensure that a deliberate choice is made and that someone supports us, be it with regard to a document, a witness or ourselves. As Yvon said, we must also protect ourselves.

[The Chair, Conservative, Gary Goodyear]

Okay. I just want to make sure, Monsieur Godin, that you were supplied with the paper that reads “Options”?

There was a suggestion by Madam Redman that perhaps we should defer this regardless, so that all folks can have a look at it and we can bring it back to another meeting. We can continue the discussion on it, but it may be well served to have some reflective time as we read through the options and some of the information before us, and then have a healthy discussion on it again.

Madam Redman, please.

[Karen Redman, Liberal, Kitchener Centre, ON]

Can we just hear from the witnesses? About Stephen Owen's point about narrowing the scope of when subjects actually are in camera, I'd be interested to know, number one, what the current criteria and practice are, and would it be the Standing Orders, and how would we go about narrowing that, because it seems to me that's an eminently sensible way to help police this?

[Audrey O'Brien]

Right now, the decision to go in camera is a decision taken by individual committees. There are really no general criteria. The most frequent use of in camera proceedings is when committees are either discussing their future business or where they're studying draft reports, which usually doesn't involve witnesses; it's usually at the stage where they're discussing this among themselves and with their research and clerk staff.

The business of hearing witnesses in camera is not all that frequently done. More recently, we've had a spate of in camera hearings with witnesses before the public accounts committee, and I can recall, as I think I mentioned the last time I was here, meetings the Standing Committee on Justice was holding in penitentiaries across the country when they were doing a study of correctional facilities. But that was really in a very specific kind of situation. As I say, there are no criteria, per se, that are specified.

Were the committee to decide to adopt certain criteria, for example, as I see here in section 3, with regard to the eventual release, the criteria where something might be released, realizing that this is not the decision you've made but it's one of the options you've been talking about, then conceivably that might be adopted in a report by the committee and then presented to the House and concurred in by the House. I don't think it would have to be enshrined in Standing Orders for it to have weight.

[The Chair, Conservative, Gary Goodyear]

Colleagues, I just want to make sure again, that you have this paper dated April 17, that reads, “Release of Transcripts of In Camera Committee Meetings”. They all look the same from this distance, but if you have this, if you don't raise your hands, on page 2 at the bottom we do list....

Obviously, the clerk is fully correct. The Senate does have a number of criteria they use to hold in camera meetings. That information is there, again, and it suggests to me that we might want to defer this and give colleagues a chance to digest all of this information and come back and continue what is clearly going to be a healthy conversation.

Madame Redman, please, and then Monsieur Godin.

[Karen Redman, Liberal, Kitchener Centre, ON]

Thank you, Mr. Chair. I have just one other point. I think somebody else raised it at a previous meeting.

Were a witness to be called before any committee and say they would only come if it were in camera, the committee would always have the option of subpoenaing that person and having them come. They may give non-answers, but it would never be an option for a witness not to appear. We could always compel them, could we not?

[The Chair, Conservative, Gary Goodyear]

Monsieur Godin.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Thank you, Mr. Chairman.

Exactly. The committee makes its own decisions, and it assumes the consequences for such a mistake. If the committee prefers to meet in camera because an individual will only appear in camera... Here, we're talking about "considering draft reports or hearing substantive information". If the committee decides to meet in camera, that decision has been made. However, it doesn't have to do so. I agree with Ms. Redman about this. In that case, the committee need only subpoena the witness to appear before it. The witness's comments will then be made public. I think that people want to change the Standing Orders when we don't need to. The Standing Orders are clear on this matter: in camera means in camera. I will not change my position.

Committees must be very careful when deciding to meet in camera. If a committee decides that it has made a mistake, it will learn from that mistake, that's all. I think that this is what happened in this case. If we want the public to know something, we don't unnecessarily meet in camera. There is another way of proceeding. Mr. Guité could have appeared again before the committee, and the members of that committee could have asked him questions, without saying that he had said something else during a previous committee meeting. He was tried by a court in Canada. I don't think that we are here to do the job of the Federal Court or the Provincial Court.

[The Chair, Conservative, Gary Goodyear]

Order. Thank you.

I'm not cutting you off, Monsieur Godin; I'm just trying to get members to quiet down a little bit so I can hear you.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

I think that people want to change the Standing Orders because of one case. We don't need to do that. The committee need only act judiciously. It should not unnecessarily hear from witnesses or hold meetings in camera if it intends to make that meeting public. I don't like sneaky games being played under the table. We should be honest with our witnesses and everyone else. If we don't like what's happening, then we shall suffer the consequences. It's as simple as that.

[The Chair, Conservative, Gary Goodyear]

Mr. Lukiwski, one final comment.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thanks, Chair.

I was just going to underscore your suggestion that perhaps we defer the discussion and come back after members of this committee, perhaps in consultation with other members within our caucuses, have a chance to take a look at this. I think Mr. Godin and others have made very good points here. And I just reiterate, again, my position. I believe that in camera discussions should be in camera. But I agree with Mr. Owen that we restrict the use of in camera.

Maybe there are some suggestions, as a general guideline, rather than hard and fast rules as to what constitutes an in camera session. But I think it needs a little bit more examination, so I would suggest that we defer the discussion for now.

[The Chair, Conservative, Gary Goodyear]

I'm going to look around the room at committee members on that suggestion that we defer this to another time and continue the debate and discussion on it.

Am I seeing a lot of yeses that it's the way we want to go? I'm not seeing a lot of yeses, and as the chair, I'd like to see a few more physical interactions. Thank you very much.

Colleagues, as always--and I know we have a very committed group here--have a deep read of both documents that are before you and give it some thought. Discuss it with your members. This is obviously a very important matter, and I wouldn't want to do the job half right.

Let's come back and have a very healthy discussion on this and pound it out until we get the job done, whatever that may be. So we will defer that to another meeting.

Colleagues should be in receipt of the revised motion for the suspension of committee meetings for votes in the House. The draft standing order is before you in French and English. Would members please have a read of that? And I will have our clerk read it to you.

Madam O'Brien, please.

[Audrey O'Brien]

Mr. Chair, if I might, I'll just point out that I think this goes a long way to doing what the committee wants done. I should point out, however, that all it does is give the chair the duty to suspend if there isn't unanimous consent to continue sitting. One can envisage a situation where the committee might unanimously want to adjourn rather than suspend and come back after the vote. So you could add to that, if you want, “continue to sit or to adjourn”.

[The Chair, Conservative, Gary Goodyear]

Go ahead, Mr. Guimond.