Procedure and House Affairs Committee on Dec. 9th, 2010

[Thomas Mulcair, NDP, Outremont, QC]

...of precedents. The only thing I know of is the Radwanski case, if I am not mistaken.

I believe that in the Radwanski case, a person who was not an elected representative was convicted of contempt for giving false information under oath at a hearing of a commission.

[Peter Milliken, Liberal, Kingston and the Islands, ON]

The other case the clerk mentioned involves the Standing Committee on Public Accounts and a member of the Royal Canadian Mounted Police.

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

Someone appeared before the Standing Committee on Public Accounts and testified, and their sincerity was in doubt. I can give the committee the details of the precedent in question.

[Thomas Mulcair, NDP, Outremont, QC]

That would be very helpful. That kind of precedent can really guide us in our work and kind of set the parameters, the ins and outs of what we will be doing.

That's all for me for now, Mr. Chair.

[The Chair, Conservative, Joe Preston]

Thank you.

That's great, we've had one round. I would entertain some short, one-off questions.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Thank you, Mr. Speaker, for being with us this morning.

I read over your ruling again. It says that of particular concern to the Speaker in this case was the amount of time that had elapsed, reportedly four days, before the lobbyists had been requested to destroy their copies.

I'm wondering how strong that factor was, how much that played into your decision. Within four days, a lot could have happened—material being photocopied, faxed far and wide. So it may not just be the lobbyist we know of at this point who had access to this information.

[Peter Milliken, Liberal, Kingston and the Islands, ON]

I don't think this was an important aspect of it. To my mind, the important item was the request from the committee that the matter be referred. That was the deciding thing, in my view.

[The Chair, Conservative, Joe Preston]

Mr. Lukiwski.

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

I've been on record saying this from the outset: the biggest service this committee could do Parliament would be to come up with some protocols at the conclusion of these hearings that would prevent this type of thing from ever happening again.

You mentioned in your opening remarks about a time in the not-too-distant past when committees had a completely different set of circumstances to deal with. We didn't have the technological advantages of today. A lot of the time there were hard copies distributed, and the copies were numbered, and there were oaths of secrecy. You've been around here for a number of years and you know the history of this place better than most. In years past, did you find a preponderance of leaks happening when we had the old—what some would consider archaic—system in place, as opposed to what's happening today? Or is this a relatively rare occurrence?

[Peter Milliken, Liberal, Kingston and the Islands, ON]

In my experience, it's a relatively rare occurrence, but then I haven't been on a committee for quite a number of years.

I used to sit on this committee. I chaired it at one time, but that was a long time ago. I don't remember any leaks occurring from the procedure and House affairs committee, as it then was. It's not a subject on which I'm expert by any means. As for leaks, I've heard of them occasionally, but not very often.

And of course even if the pages are numbered, people can repeat what they remember off the pages. People who have seen material in the committee room can repeat it, and I assume there could be a leak for that reason. It's not something that's easy for committees to control. They rely on people to keep their mouths shut, and usually that works, I think.

[The Chair, Conservative, Joe Preston]

I'd like to point out to the committee that this proves our committee was once well chaired.

[Voices]

Oh, oh!

[The Chair, Conservative, Joe Preston]

Are there any further questions?

Monsieur Mulcair.

[Thomas Mulcair, NDP, Outremont, QC]

I would like to come back very quickly to what Mr. Lukiwski just said. Finding a remedy for the future is indeed part of what we are doing.

But we are also all concerned about what has happened. I was a member of this committee. When I got a call from a journalist and the journalist knew very clearly what my position had been on a particular recommendation, that interfered with my ability to do my job, individually and, as the Speaker said, collectively. One of the things I admire in the parliamentary system here is that it is relatively nonpartisan; we are able to work as a group. We would no longer be able do it then.

When I got the call from a lobbyist who knew very well that their request was not part of the NDP's recommendations, but I might have been able to work with the others and let myself be persuaded, that interfered with my ability to do my job.

Part of our function is to change things for the future, but punishing misconduct must also be part of it, if we want to defend our institution's ability to function.

That's all. Thank you, Mr. Chair.

[The Chair, Conservative, Joe Preston]

Are there any comments?

We thank you for coming this morning. We'd be happy to excuse you and put a couple of other witnesses down at that end. Thank you very much for helping us with our work here today.

I will suspend for one minute.

[The Chair, Conservative, Joe Preston]

I will call the meeting back to order, please.

Mr. Walsh, we welcome you today. We hope you can help us again. You were here to observe what the Speaker had to say. I think we'll have some similar questions for you.

Mr. Walsh, if you have an opening statement, we'd be happy to hear it. If not, we'll go right to questions, or we'll have a little of both.

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

Thank you, Mr. Chairman. I don't have a prepared opening statement, as I didn't know exactly what it was the committee wanted to hear from me. But I should say a few things, perhaps.

I read the debates, and I got a sense of what it is that concerns members. I think the member for Outremont, in his point of privilege, pointed out that there was an internal aspect and an external aspect to this matter. I wouldn't define those terms the same way he might. Nonetheless, I think it's a fair analogy.

There is an internal aspect to this, and that's the committee dealing with a matter of privilege and reporting it to the House. The external aspect, of course, relates to the persons--the lobbyists--who received the draft committee reports, the confidential reports, how they obtained those reports, and what they may or may not have done with them.

In that regard, I suppose the question for the committee and me is where the committee goes from here. Well, the road map on privilege is pretty well defined for members of the committee. I don't need to go into that. As to whether it's a privilege that's been breached and what the difference between privilege and contempt is, I'll offer my opinion here. I think you'll find this in O'Brien and Bosc as well.

Privilege, generally, is with reference to a particular privilege and whether it's been breached, whereas contempt may arise from a breach of a particular privilege. It could also be a general, contemptuous action toward the House, an outrage, or an insult to the House or the dignity of the institution. As in any court, they can defend themselves against that kind of assault, if you can call it that, through the contempt process.

So while contempt may arise from a breach of privilege, contempt may also not arise from a particular privilege.

Nonetheless, contempt is contempt. What is contempt? Well, I've said before to committees that it's much like the adage that beauty is in the eye of the beholder. Contempt is in the eyes of the members of Parliament. Contempt is what you think is contemptuous. There is no legal standard of a kind you are held to. If you think something is contemptuous, that's your judgment, you meaning the House of Commons. It's the one that determines whether actions are contemptuous.

That's the internal aspect. We can talk more about that if you wish.

On the external aspect and what can be done there--this was mentioned earlier by a member during questions--you can look to the Lobbying Act. If you were to do that, it might be a disappointing experience for you. Nonetheless, the act is there. And the commissioner of lobbying has a role to play relative to lobbyists. It may well be that the committee might develop thoughts about what should be happening in that direction. Without saying more, if the committee wants to discuss that further, we can do that.

That's how I see the external and internal aspects. Beyond that, I'm in your hands.

[The Chair, Conservative, Joe Preston]

Thank you very much.

We'll use the same five-minute rounds, with quick and succinct questions and answers, if we can. If we have a little bit of time at the end, we'll do some other one-offs.

Ms. Foote, you're up first.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Thank you.

Thank you, Mr. Walsh, for being with us this morning.

I've read some rulings by previous speakers with respect to breaches of privilege. In some instances when it was determined that there was no breach of privilege--in this case, there has been--the Speaker didn't find a prima facie case of privilege because there was no specific allegation of misconduct directed against particular individuals.

Can you elaborate for me the distinction between the two in terms of finding a prima facie case of privilege versus not?

[Rob Walsh]

I've always taken that distinction to be based on the rather straightforward proposition that it's one thing to say that someone's been shot, but it's not very meaningful unless you can say who did it. To say that there's been a breach of privilege may be of interest in passing, but unless you have someone identified, for the benefit of the Speaker, to address the point, it's hard to find a breach of privilege.

If I understood your question correctly, and I may not have done, you need to know who it is that the allegation of breach of privilege is made against so that the ruling, prima facie or by the committee, can address the conduct of that person and whether what the person did in fact constituted a breach of privilege.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Where would Mr. Ullyatt fit into this in terms of the breach of privilege?

[Rob Walsh]

Mr. Ullyatt, like any member of the public, could well engage in conduct of a kind that breaches the privileges of the committee. To take a totally unrelated example, if an individual were to accost any one of you on your way to Parliament and prevent you from getting there, they've breached the privileges of the House. You are entitled to have direct access to the House and to be unimpeded in your attempts to get to the House or a committee for the purposes of assisting or attending those proceedings. In that sense, a private citizen could well be guilty of conduct of a kind that causes a breach of privilege.

In the circumstances of this case, Mr. Ullyatt, as an employee of the member—as all employees—arguably is prima facie acting under the direction of his employer. That may not always be the case, but one might, as a starter, assume that. The employer is responsible for the behaviour of the employee, as arguably there's a vicarious responsibility on the part of the member for the conduct of the employee where that conduct gives rise to a breach of privilege.

Having said that, if the employee were acting without the authority of the member, the employee could well be found to be guilty, if I can use that term, of breach of privilege, in the judgment of this committee or the House, where his conduct is of a kind that frustrates the ability of the House and the committee to do its business.

The usual considerations that might apply to a member could well be applied to an individual employee, that what he or she has done frustrates the ability of members of this committee and the House to do their parliamentary business. That's a breach of privilege.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

What kinds of sanctions, then, can be imposed? Right now we're told that Mr. Ullyatt is no longer an employee of the member in question. What kinds of sanctions can be imposed by this committee with respect to how we deal with Mr. Ullyatt?

[Rob Walsh]

Legally speaking, there's no limit on the sanctions the House could arguably choose to impose, but that doesn't really answer your question. You're really asking what kinds of sanctions are appropriate in the circumstance of this case. That is a matter of judgment for the House ultimately to decide, although the committee may have thoughts on that.

My understanding of circumstances like these is that if the individual is found to have breached privilege or to have acted in a manner that's contemptuous of the House, the individual is given an opportunity to purge the contempt, as it were. That's usually done by an apology. If the apology is found to be genuine and complete, and there are no other lingering mala fides at issue, the House or the committee might be happy with that.

Now, do you want to go further and have a whipping, as it were, or whatever? What do you want to do? How much blood does the House need from any offending party before the matter has been adequately addressed? Your question is that open. It's not that the House can act irresponsibly; I don't mean to suggest that. I'm speaking rather carelessly here, but I'm speaking in this manner to illustrate the point that it's a very open question as to what is the appropriate action—very open. As public office holders, which you are, your judgment is better than mine as to what would be appropriate for an individual the House finds to have breached privileges of the House.

Typically, my view is usually some kind of an apology, maybe calling the person in front of the bar of the House to publicly do that apology, or maybe some other way. I think the judgment is generally that as long as the offence is redressed in some manner, adequately to indicate that the individual acknowledges what he or she did was not appropriate, then that probably is taken as a sufficient answer to the issue in most cases.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. Lukiwski.