My opening statement is a bit longer, but I'll cut it.
First of all, I'll define “contempt”. To be found in contempt of Parliament, a person must be found guilty by the House of Commons of actions that obstruct or impede the House in the performance of its functions. And that's not the same as privilege.
I think we have to appreciate that, because there is no limit to what might be contempt. Examples of such actions include deliberately misleading the House or a House committee; falsifying or altering papers formally submitted to a committee or to the House; failing to attend before the House or a committee after being summoned to do so; and, especially germane to the matter under consideration today, refusing to produce papers when ordered to do so by the House or a House committee.
Contempt of Parliament is the parliamentary equivalent of contempt of court; after all, a venerable name for Parliament is the “High Court of Parliament”.
The main thing I wanted to say is there is no limit to what could be contempt and there are no defined rules of acts that are contempt. It's simply things that impede the House and its business. So the list I gave is simply examples.
Cases of contempt have been rare in Canada. I found eight of them. Regardless of the number, because people don't agree on that, three striking facts about these cases where persons were found in contempt deserve mention.
First, there were only two findings of contempt between 1867 and 2001, the first 133 years of Canada's existence, compared with six in the next ten. Second, all of the recent ones occurred in majority Parliaments. Third, unlike the two presently under consideration, none of the previous eight cases involved an explicit finding of contempt against a minister or a government.
Now I want to devote my remarks to the question of the right of Parliament to call for persons, papers, and records.
This was an issue before, in the Afghan detainees discussion, when Speaker Milliken ruled that while there were no exceptions to the right of Parliament to send for papers, accepting the authority of the executive to censor information provided to Parliament would in fact jeopardize the separation of powers that's purported to lie at the heart of our parliamentary system and the independence of its constituent parts.
On the other hand, there are good reasons to keep some documents confidential. One of the first studies I did related to the right of Parliament--and this was 40-plus years ago--for a commission examining the security branch of the RCMP. I did a study on Parliament and security matters for them and wrestled with this problem. Again, as we're wrestling here today, you start off with yes, there is an unlimited right of Parliament, but what constraints should Parliament impose on itself in demanding papers and records?
Now I get on to the tricky area of the question of what the government can keep to itself because it constitutes a cabinet confidence or, more formally, a confidence of the Queen's Privy Council.
Speaker Jeanne Sauvé observed in 1981 that the expression “confidential document” had never been defined and that it would be improper for the Speaker to attempt to make such a definition. She stated that it is the government's prerogative to decide which documents are of a confidential nature.
Canada's Supreme Court has also observed that “...all governments must maintain some degree of security and confidentiality in order to function”.
On the other hand, Speaker Milliken ruled on March 9, 2011, that there was a prima facie case for a finding of contempt of Parliament against the government because it had withheld information from Parliament. I shall leave that there.
To the extent that Speaker Milliken's ruling differs from Madame Sauvé's, I side with Speaker Milliken. The government does not have an unlimited unilateral right to decide what documents it will or will not release to Parliament. If nothing else, access-to-information legislation passed by Parliament limits what a government can keep confidential.
I make an aside comment here that it should be noted that there are some systems of government, such as the Swedish, where our notions of cabinet confidence are not recognized; in other words, cabinet documents are fully public and fully available.
In our system, which recognizes cabinet confidentiality, the question becomes, where does the right of the cabinet to keep documents confidential end and where does the right of Parliament to have access to documents begin?
I favour the barrier being set so as to limit as much as possible the documents that are regarded as cabinet confidences. Certainly the actual minutes of cabinet meetings that report what individual ministers said and what else transpired should be respected as confidential, and presumably position papers showing where individual ministers and departments stood on a matter, but not much else.
There is a huge amount of background material provided for the cabinet on major decisions, including legislation, most of which could, and should, be made public. The remoter a document or study is from a record of actual cabinet deliberations, the stronger the argument against confidentiality.
A good study from a department will include both pros and cons and will provide a comprehensive analysis of the costs and other implications of proposed legislation. With rare exceptions, Parliament and the public deserve to see these studies as much as does the cabinet. Parliament and the Canadian public should know the costs and other implications of major government decisions and the bills before Parliament.
An example of talking across rather than with each other--produced by the present arrangements--is the question of the cost of just one of the government's crime bills, where the Parliamentary Budget Officer found the cost to be an order of magnitude greater than the government claimed. But no useful discussion or resolution of this contradiction emerged because the government refused to release their own studies of costs on the grounds that they were cabinet confidences.
As an immediate band-aid solution, I would suggest that this committee consider five reforms: one, that Parliament and government immediately begin to work together to define what documents are cabinet confidences and what are not; two, that the report from this committee recommend that all pieces of legislation not extend beyond first reading unless they are accompanied by an analysis of their cost implications over at least a five-year period; three, that the Parliamentary Budget Officer be provided with the resources to make his or her own independent analysis or evaluation of data provided by the government, and be instructed to do this; four, that the House itself undertake an inquiry into the proper extent of the government's right to declare unilaterally that papers and records are cabinet confidences; and five, that Parliament should review the Access to Information Act and in particular reconsider the current provisions that put the responsibility for administering the legislation in the hands of departmental ministers.
In giving this responsibility to ministers, the present legislation gives to the foxes the keys to the chicken house. Deputy ministers should have the responsibility for administering the access to information legislation, unless specifically, and in a way that is made public so there is no question of who bears the responsibility, they are overruled by their minister. That would pretty well take the ministers--and that even more suspect class, the exempt staff in ministers' offices--out of the equation.
As a final comment, I do hope—but I do not have much faith that my hope will be realized—that the procedure and House affairs committee will reach a consensus in its report on this matter of contempt, even if this consensus extends only to proposed solutions to a very real problem. Access to adequate information is a fundamental requirement for the effective functioning of Parliament and Canada's parliamentary democracy. Without accurate costs and other information, debates and committee hearings in public and political discourse in the country at large risk being debased into sloganeering, name-calling, and pigheaded obtuseness. That is not the right way to run a Parliament, let alone a country.
Both sides of the House should be concerned about this, if only because someday they're probably going to sit on the other side.
Thank you, Mr. Chairman.