Procedure and House Affairs Committee on May 10th, 2007

[Karen Redman, Liberal, Kitchener Centre, ON]

I think it's a real lack of faith that breaks the collegiality and shared purpose that all Parliamentarians have. I raised this initially. I guess my problem is how you absolutely prove that person x is the source of the leak?

I would point to something that has been in the papers. I don't mean to press a bruise on the government, but there's that poor Environment Canada employee who was taken out in handcuffs. I think it has not been proven that this person was the leak. I keep thinking how I would have felt if someone had slapped handcuffs on me at my desk and taken me out. I think it's an incredibly humiliating experience. Clearly somebody thought there was a substantive reason to do that.

I guess, Joe, I just don't know how you.... The sanctions are almost aside from how you prove beyond a shadow of a doubt that person X is the leak.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

I'll give you two examples. The one you discussed is up to the police. That certainly is a police matter. But we're talking about members of Parliament who, for example, discuss a draft report from an in camera session.

I know Yvon is not here, but he has been pretty adamant about not releasing in camera information. If someone on the committee said, “That's not right and we need to release this”, and the rest of the committee said, “No, it's an in camera situation”, if that person stood outside the door and gave the information to the press, I think it's beyond proof. The person has just done it. I've given an example that has clearly happened in the past.

If that happens, then what? I'm not looking for us to be the judge and jury; I guess I'm looking for us to be more of the judge. This is about the sanctions, not about our proving it happened or didn't happen.

[The Chair, Conservative, Gary Goodyear]

Just to clarify then, Mr. Preston, you're not specifying in your motion how we go about proving or disproving, you're talking about the case where it's already--

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

I believe those areas are already in place. This is about the sanctions.

[The Chair, Conservative, Gary Goodyear]

Okay, so we're dealing with the sanctions issue on those cases that have been proven.

I don't see any other hands going up. I'm going to just indulge the committee so we can maybe try to get discussion going.

The sanctions available to the House right now include an apology by the member, reprimands--and I'm not sure what that means--censure, suspension, and imprisonment. I'm not sure there's any evidence that that's ever been the case.

I'm still looking for hands to go up.

Seeing none, I'll just draw your attention to page 4 on the document, where there are some reasonable suggestions as to some of the ways that we can protect the private areas, such as documents being individually numbered, with each page numbered; individuals having to sign for the documents and returning the documents; limiting the number of folks in the room at the time, meaning staff; limiting the technology in the room, meaning cellphones with pictures and recording devices. These are all ways to help protect meetings. If they're not clear, we might want to add them to whatever report we end up with.

I still see no hands going up. Colleagues, we have had discussions....

Oh, thank you very much, Madam Picard. You're certainly my favourite today. Please.

[Pauline Picard, Bloc, Drummond, QC]

In my opinion, members sitting on committees are not sufficiently aware of the importance of their comments. Often, the chairs themselves are not familiar with the Standing Orders. Some kind of information session should be held for all committees to inform members sitting on those committees the serious consequences of disclosing information or providing documents when the committee members agree to sit in camera.

I think that the members are not taking in a lot of the information. Many committee members are new members who are not familiar with the Standing Orders and procedures of the House. It takes some time, even when you sit in the House itself, to learn various Standing Orders, procedures and strategies.

I have sat on a number of committees and I noticed that the members are not familiar with the role and importance of in camera meetings. I also note what happens when witnesses are questioned. Witnesses are not appearing before a committee as if they were in court. Sometimes, members question witnesses as if they were guilty. For those sitting on committees, there is a huge lack of information on the role of members and on the Standing Orders.

[The Chair, Conservative, Gary Goodyear]

That's a very good point. Thank you.

Mr. Hill.

[Jay Hill, Conservative, Prince George—Peace River, BC]

Just so that I fully understand here, we're going to deal with proposals for sanctions only if someone is proven to have leaked from an in camera meeting of a committee. Is that what we're up to here?

[The Chair, Conservative, Gary Goodyear]

I'm going to be clear. The motion wants us to deal with sanctions only, but the discussion is quite clear on how we prevent it in the first place, and hopefully we'll bring it around.

I see a report, perhaps, being developed that might deal with educating members, educating chairs, restricting the in camera meetings. These are discussions that we've had all along. So I suspect the end result, Mr. Hill, will be a little bit broader than just sanctions, but I will keep the committee talking until we come up with some kind of conclusion on sanctions, if any.

[Jay Hill, Conservative, Prince George—Peace River, BC]

I would make two points, then. One point is on trying to determine who may or may not have done it, and it's always difficult, as Madam Redman was suggesting in her opening comments to this discussion.

I raised this at a previous meeting. I think we should have some procedure in place that is standard for the committees, or at least suggested to the committees. We all recognize, as soon as we get into the area of the House dictating to committees, that in that quicksand we don't want to tread too heavily. I think there is a need, because committees themselves have grappled with this issue and they've tried to look for some direction. Maybe we could help provide that.

Obviously it has to be communicated to all members well in advance so they clearly understand the gravity of the situation if they were to leak, for example, a draft committee report, which is often the case. It needs to be impressed very severely upon them what the consequences would be. That's the first thing.

Secondly, I think there should be some process. I'll just throw this out for discussion, because I know some committees have done this, but they've done it in camera and it doesn't provide any potential fear of disclosure--I'll put it that way--because then it too is subject to confidentiality. So it doesn't accomplish anything, but they've taken the step of saying, “Okay, enough members around the table are upset. We've worked damned hard on a report, and one of us obviously went out to the media and leaked it. What do we do?” So they say, “Let's swear an oath just like you would in a courtroom.” So you put your hand on the Bible and you swear an oath like when we were sworn in as members of Parliament. It's very serious, as it is in a court of law, because you know that if you perjure yourself and it's ever proven....

For example, let's say, an individual leaks a draft report, swears an oath saying that they didn't, that they're completely innocent, and then it comes forward that there's a tape recording from a journalist, for whatever reason, although journalists always try very hard to protect their sources. Obviously you get into that whole business, too, of freedom of the press.

Let's say, for argument's sake, that it was revealed later, irrefutably, that this individual not only was the culprit--if I can call them that--who leaked the report, but they had also lied under oath saying they weren't. I think we should have a process in place whereby the members know that if there's a question of something like that that's leaked, there's a majority of the members of the committee who feel it's serious enough. So you would have to have a good discussion at the committee that it's serious enough that you take a swearing of the oath in public.

Obviously if the person who leaked it was required to swear an oath, they would be reluctant to do so, just as any citizen is reluctant, I would suggest, to go on a stand in a courtroom and perjure themselves. It's very serious. I don't know why you wouldn't take that very seriously. There are serious legal consequences if you're found to have perjured yourself. We all know that. It should be no less serious here, I think, if we're going to get serious about this issue. So that's the first thing.

As to sanctions, whether a person was to admit that “Yes, it was me, I was the one who did it”, or it was proven later, as I said, that this individual was the one who leaked something that was confidential, that he or she knew it was confidential and they knew how serious it was, I think there should be financial consequences. I would support, at the least, considering your being docked a week's pay or something like that, as a member of Parliament, and having it right in the rules, the Standing Orders, that if it's proven that you're the one who did this, there is a financial consequence to it--not only the public humiliation that should come from it, but a financial consequence as well, so that people take this seriously.

I think the vast majority of members of Parliament in all parties want to take this seriously. All of us have considered it a personal affront at different times when we've served on committees and this is done. If it's done accidentally, we have some empathy for a colleague, whether from another party or our own party, because we are all human; we all make mistakes. But when it's wilfully done--and many times it is wilfully done. People do this for their own agenda. It might not even be their party's agenda. Indeed, that particular individual's own leader might be as upset about it as anyone else, any other member of Parliament. As for those people who would do such a thing, I think in many cases their own caucus colleagues, their party colleagues, are more upset with them than even their opponents are.

So we need to impress on them that this is serious, that there is some mechanism whereby we will endeavour to determine who it was. I am just throwing this out: having a standard process of taking an oath that the committees can avail themselves of if they believe it's serious enough; and then secondly, that there are serious consequences, both the public humiliation that justifiably should come and the financial penalty.

[The Chair, Conservative, Gary Goodyear]

Colleagues, I have three names on the list, but I see where we're going with this. It looks as if we are going to have a report drafted and brought back to the committee. It will include such suggestions as the possibility of a committee, under its own authority, by a majority vote, asking for all members to take an oath as a way of proving or getting toward this issue. Then if that is proven, if members take an oath or there is other evidence, the committee would then refer it to the House for sanctions, which would then include a financial penalty. The suggestion on the floor is one week's pay.

Does that summarize what Mr. Hill said? Thank you, colleagues. Let's move on.

Mr. Lukiwski, then Madam Redman, and then Monsieur Godin.

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

Thank you, Chair. I'm not sure if I'm going to add any clarity to this discussion or just muddy the waters a little bit, but I'll make a couple of observations, perhaps.

Number one, I think there has to be a bit of a distinction. We're talking about leaked committee documents. There's also been the case from time to time where it hasn't been actually a document; someone's gone out and given a verbal description of an in camera discussion on a confidential matter. Sometimes it's been inadvertent, and we've all seen that. I think there have been examples from all parties where someone inadvertently or just through...you put the term on it...has gone out and done a media report or interview and inadvertently leaked something, said something that occurred in an in camera discussion. So I think we have to distinguish that. In other words, the level of sanction should be commensurate with the level of the offence.

As far as process is concerned, I think it would probably always be a good idea that if it has been proven that one committee member, either verbally or by giving a written document, has breached confidentiality, the first step should be that the member should be brought back before the committee--at a public presentation, not in camera, I totally agree with Jay there--to explain his or her actions to the committee. Now again, this is only if the commission of a breach of confidentiality has been established. They should have the right to tell a committee, of which they were a member, why they did what they did. Sometimes it might be just, “Look, I screwed up. I did an interview with a local radio reporter. I forgot it was in camera. It was my mistake. There was no malice intended, and I throw myself on the mercy of the committee.” Or they may be, frankly, unable to explain their actions because they were quite guilty of committing a fairly serious offence.

I think your comment, Chair, when you were saying maybe it goes back to the House for sanction.... You know, I don't want to get too bureaucratic about this or anything, but I think maybe the committee should be the one to determine whether this is considered a minor, moderate, or severe offence, depending on how that committee member explains himself or herself, trying to justify, in some cases, his or her actions. And then sanctions can be put in place.

So there may be a sort of sliding scale, if you will, of penalties or sanctions, because I think from time to time you're going to find that a member makes a mistake, an honest mistake--not with any malice intended, but just an honest mistake.

I could think of the example of when there's a confidential document. We all see them from time to time. We take them; we're supposed to protect them, file them in our office or whatever. But perhaps the committee member inadvertently leaves it on a table, a member of the media picks it up and does a story on it, and right away the committee member knows, “Oops, that was mine. But I didn't do it purposely; it was a mistake. I want to explain myself to the committee.” It's a serious offence, a serious breach of conduct, but it wasn't done deliberately. I think the committee should have an opportunity to review that, to listen to the member, and say, “Okay, I believe you. It's still serious. Make sure you don't do it again.” We're going to sanction the member, but the level of sanction is down on the minor level because it was an honest mistake as opposed to somebody who deliberately goes out there with a confidential document, hands it to the media, and says, “Report this.”

So I think there has to be something the committee does to determine the level of offence.

Thank you, Chair.

[The Chair, Conservative, Gary Goodyear]

Thank you, Mr. Lukiwski.

Just to remind the committee, if my understanding is correct, committees do not have the authority to sanction members. But I suspect that you're recommending a particular sanction from the list that's available in the report that would go to the House.

Thank you, Mr. Lukiwski.

Madam Redman, please.

[Karen Redman, Liberal, Kitchener Centre, ON]

I thin we work from a premise that all members are honourable. I'd like to pick up on Madame Picard's point, which goes back to the awareness level.

I really like some of the things the Senate does, as listed on page 4, to help reconfirm and remind everybody in the meeting that this should be taken very seriously. I really like the numbering of the report. I like the fact that there's a number assigned to each individual, and I like the fact that they may sign for them. I think all of that is worthwhile putting into practice as a good reminder to all of us that this is not something to be taken lightly.

To answer Mr. Lukiwski's point about someone saying, “Oh, I forgot it was in camera” or “I didn't know”, one can plead ignorance, but it doesn't ameliorate the damage. I'd be interested in hearing from Ms. O'Brien on whether the Senate does it. I'm wondering what costs would be associated with that and if that would be particularly onerous.

But I have to tell you that we're also becoming judge and jury here in ascribing motive, because anyone can come in and say, “Gee, you know, I just lost my head.” As I said, I think we all assume that we are honourable members, but let's face it, from time to time people do things very politically, but I would underscore that it's not just leaking documents--a point that's already been made. Regarding a subcommittee of this committee, I've heard from individuals, from non-government people, that they know exactly how everybody on that committee voted. I tell you, I find that highly damaging. I find that disrespectful of that subcommittee. I'm not about to point fingers, but that action was clearly motivated by politics, and I find that incredibly egregious.

None of this is going to cover that off. They're not going to tell me who told them that, but they know who raised their hand and what arguments were made in that in camera subcommittee meeting. I find that a real affront to this place, to this establishment.

I question how anything could happen automatically, and maybe that's been clarified by the chair. It would seem to me that any sanctions or menu of sanctions would really have to be dealt with by the House as opposed to just by a committee. I would be interested in hearing from Audrey about some of the things suggested at the Senate.

Do you have any idea if that would be onerous or a financial burden in any way?

[The Chair, Conservative, Gary Goodyear]

Go ahead, please, Madame O'Brien.

[Audrey O'Brien, Clerk of the House of Commons, House of Commons]

Mr. Chair, through you to Mrs. Redman, thank you.

Some of those measures outlined there are already in place. For example, if a draft report is sent around to members' offices, we ask for a signature so that there's proof that the document actually reached there. The business of numbering the copies wouldn't be difficult, so it wouldn't really create an administrative burden.

I think more problematic for the enforcement of the regime that's being discussed is, first of all, attributing guilt with some degree of certainty as to who has done this, because in some cases you have a blurring, where clear positions have been taken in the public sessions in which witnesses were heard and no doubt those public positions also manifested themselves in the in camera hearing. So it becomes a judgment call as to whether you're divulging what went on in camera or whether you're talking about something that is already on the record in some other form.

Committees themselves, I think, have a very good sense of that. They have a good sense of when they've basically been betrayed. The terrible thing with all of this is that it really does rest on the notion that one's word of honour means something.

I agree with Madam Picard. I think there's been a trivializing of the notion of confidential documents, perhaps partly because things are stamped “confidential” when it really makes no sense; it's just a proliferation, and nobody takes it too seriously. But I think we need an aggressive education campaign of members to say this is something we take seriously and this is basically the linchpin on which everything depends, because if we can't depend on one another's word, then where are we?

That's my little cri de coeur there.

With regard to the question of sanctions and the earlier discussion that this committee had about the whole question of how to handle parliamentary language and unparliamentary carryings on in the chamber, I worked with the advisory committee to Mr. Fraser many years ago, and in that context we had recommended that there be sanctions. They were basically financial penalties. That never really got anywhere, but maybe it's something you might want to revive.

Right now, really, in all of the precedents we have, the apology of the member in question is taken. A member is taken at his word. A very laudable example of a situation in which someone made a mistake and the committee was prepared to accept that person's word occurred last October, when there was a problem with the subcommittee on the review of the Anti-Terrorism Act. A member raised it on the floor of the House, and then the other member came in later to say that, yes indeed, he had been responsible and it was completely inadvertent, and he apologized unreservedly. That seemed to me a best example of what might happen and how it could be dealt with.

The difficulty occurs, of course, in the case that somebody has deliberately leaked the information. With the 24-hour-a-day media circus, whoever gets out there and gets the message out first is thought to have some kind of advantage. When I looked at the newspapers today, there was a discussion of a government bill as though it was absolute fact; it's on notice today. This is common coin in the media.

There is trivialization of discussing these matters. I think people perceive themselves, in a sense, if they really do respect the rules, as ultimately being penalized in the larger political gamesmanship that's going on, so you look for every advantage and you do whatever it takes. That's always, I think, particularly unfortunate. But it does seem to me that the culture of each committee very much belongs to the committee, and the committee itself can, I think, demand a certain level of behaviour or of integrity from its members. If the integrity isn't there, then the committee should be able to call someone to task on it and report back to the House.

The only thing the House really does now, in the two instances we found in terms of our precedents recently, is censure by the Speaker. Those were two incidents involving the mace. The trouble with the incidents is that, because it involves the mace, it is highly symbolic. It almost seems like a bit of a circus. Nobody takes it too seriously, and it all looks very arcane and peculiar to the viewing public. You then wonder whether someone being called to the bar of the House or whether someone having to stand in place to receive an open censure from the Speaker is something that would be a sufficiently shaming situation in order to be a deterrent to this kind of action.

But you would be better placed than I to know whether it might work.

[The Chair, Conservative, Gary Goodyear]

Thank you very much.

Monsieur Godin, Monsieur Proulx, and then Mr. Hill.

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

I missed the first part of it. Is there evidence that this is happening a lot?

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

It's only anecdotal.

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

Mr. Owen may remember this. A journalist came to interview me on an issue that the Standing Committee on Procedure and House Affairs was considering in camera. He seemed to know everything about what we were doing. I asked Mr. Owen if this individual had gone to see him and I told him that this individual seemed to know a lot of things. Mr. Owen reminded me that it was something that had occurred almost a year earlier and that this individual had perhaps consulted the committee minutes to see what had happened a year prior in committee and had more or less guessed what we were discussing. This individual seemed to have a lot of information, but it had nothing to do with our in camera meeting.

Quite frankly, I very nearly slipped up. I started to say things and I had to ask myself whether we had sat in camera or not. Sometimes, we can no longer remember. We know that we sat in camera for such and such a Bill or report. But since we sit in camera nearly twice a day, it is extremely difficult to remember which meetings were in camera. We discuss really serious issues in camera and sometimes a member no longer remembers which end is up.

How many investigations will we need to do? We can take this seriously and draft new Standing Orders, but we would completely paralyze our work by conducting all these investigations. We might as well build prisons next door and lock people up. We're going to impose $9,000 or $10,000 fines; France even talked about a $15,000-fine and one year in prison!

If we adopt a Standing Order, we must comply with it. Otherwise, people will laugh at us. If someone violates a Standing Order and we do nothing, we will have adopted all these Standing Orders and sanctions for nothing.

To what extent are we serious when people disclose information related to in camera deliberations? I do not disagree with what you are saying, I simply want us to think about it. If an issue is important enough to be presented to the committee, to Parliament and to the public, perhaps people would think twice before doing it again.

[The Chair, Conservative, Gary Goodyear]

Thank you.

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

Those were my comments.

[The Chair, Conservative, Gary Goodyear]

Merci. I appreciate the comment.

Monsieur Proulx, and then Mr. Hill.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Thank you, Mr. Chairman.

I find it difficult to believe that we are going to implement a system that would enable us to conduct investigations, issue convictions and apply sanctions. It is already difficult for us to enforce the Standing Orders of the House through the Speaker. By this, I do not mean to say that I blame him. Nevertheless, members make inadmissible statements in the House, but never lose their right to speak. I find it difficult to see how we could implement a system and apply it judicially.

However, we all took an oath of office and of allegiance when we were elected. When members are re-elected, they must take this oath again. I think that we should remind members of this oath of allegiance. We should instead rely on new or refreshed education methods. Often, documents are distributed during a committee meeting and members, as Mr. Godin mentioned, forget that the meeting was in camera.

As Ms. O'Brien said, it is so frequent that we no longer pay attention, when we get documents from the House concerning changes to the Standing Orders or to our expense account rates, since all these documents are marked for members only or confidential. The notion of confidentiality or privileged information is lost. I think that instead we should make recommendations to the House, so that these terms are used with a great deal more diligence and care.

Mr. Lukiwski said earlier that there was a difference between those situations where someone accidentally made a mistake and where somebody deliberately did something. A sin confessed is half forgiven, as they say. Does this mean that we would impose a $5,000 fine to those who do not admit their mistake, but we would reduce this penalty to $2,500 for those who do admit it, as if the confession made the transgression less serious?

We risk finding ourselves in an impossible administrative maze with a system like that. I don't see how we could avoid paralyzing the work of our committee and other committees. We would have to apply the system to all committees. I don't think other committees have the necessary abilities to enforce such a Standing Order or sanctions. This would ultimately become the responsibility of the Standing Committee on Procedure. I think that we're wasting our time and that this system would lead to problems.

However, I insist on the fact that there should be, both for new elected members and other members, a training or education period. Special attention should be paid to identifying truly confidential documents. I am not talking here about the agenda or the document index, but rather an indication about the whole document, even if it is repeated on every page. There are now electronic tools for this. All members should also be reminded of their oath of office and of allegiance.

[The Chair, Conservative, Gary Goodyear]

Mr. Hill, for a final comment, by the looks of it.