Procedure and House Affairs Committee on Oct. 16th, 2012

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

They couldn't actually stop the House from moving forward if they made the decision. They could just slow us down and cause further procedures and votes.

[Marc Bosc]

Correct.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

I just wanted to double-check and be clear on that.

We talked about what if the House isn't sitting. What would happen if an issue like this came up and the House was prorogued, like the Ontario legislature is prorogued right now? What would happen if the House was prorogued and this situation came up?

[Richard Denis]

I'm not sure. Talk to the lawyers.

That would cause a serious problem. Essentially what we would have to do as a representative of the House dealing with legal counsel from the other side is ask for an extension. Sometimes you have a client who cannot attend a court case or whatever, so you will ask for an extension. In this situation we would ask for an extension of time based on the understanding that until the House could itself waive the privilege, nothing else could be done.

As I said before, no officers of the House, not the Clerk, not the Speaker can make that decision. It's really for the House to decide. You need the House to make a decision. Maybe we would go to court if we had to. Again, it's the process in section 44. We would ask the tribunal to wait for the House to resume to give a decision on whether or not we want to go ahead with releasing the document.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Realistically, we're going to have to come up with some process or procedure to deal with this, because we can't predict in the future when these are going to come up and what the status of the House is going to be when they do come up.

[Richard Denis]

No, and I will just go back to your first question about what's happening in other jurisdictions.

Other jurisdictions, even if they have access to information, have a process in place that recognizes the privileges of Parliament and the right for the House itself to make a decision as it relates to specific types of documentation. In the U.K. the Freedom of Information Act applies, but they refer to information that is exempt and necessary to avoid an infringement on the privileges of the House, and the Speaker produces a certificate saying the requested documents are protected by privilege and therefore they don't have to be released.

There's something similar in Alberta. The head of a public office may refuse to disclose information that is subject to any type of legal privilege, including solicitor-client privilege or parliamentary privilege. Only the Speaker of the legislative assembly may determine whether information is subject to parliamentary privilege. There's a process. Often they refer to the Speaker to make a decision about what is covered by privilege.

In our case, the act doesn't apply. What we're proposing is for members to find a way for themselves to make those decisions.

[The Chair, Conservative, Joe Preston]

Thank you.

Please go ahead, Madam Turmel.

[Nycole Turmel, NDP, Hull—Aylmer, QC]

Thank you. You have answered the questions.

If my understanding is correct, we have to find a way to establish criteria that do not violate the Constitution or the law of privilege.

However, a document—which Michel submitted to us—has been produced in the past few years. That document recommends that the Access to Information Act apply to the Senate and the House, while respecting the law of privilege. It appears that things have not gone any further; no recommendations have been made and no study has been conducted to establish those criteria. It was said that the law of privilege was still in force.

[Marc Bosc]

Actually, since the act does not apply to either the House or the Senate, the fundamental criteria of parliamentary privilege continue to apply to all the proceedings of the House and its committees. So the status quo has been maintained.

However, as Richard said, as far as requests by other parties go, the House co-operates with departments as much as possible, especially when it comes to House administration, as that administration is not subject to parliamentary privilege in the same way.

[Nycole Turmel, NDP, Hull—Aylmer, QC]

Why were things not taken further, even though it was recommended that the Access to Information Act be applied while maintaining parliamentary privilege?

[Richard Denis]

The decision to propose a piece of legislation is an executive privilege. The Cabinet decides to introduce bills or move amendments to legislation. That's its prerogative. Why has that not happened? We are not in a position to answer that question. At any rate, even if such a piece of legislation was at some point introduced, parliamentary privilege should be taken into account by the drafters of the bill, as has been the case in other jurisdictions, such as England, Alberta and Australia.

As I was saying earlier, regardless of whether the legislation applies or not, we think the privilege regarding documents or issues discussed at debates and parliamentary work covered by parliamentary privilege should be recognized. So we need to come up with a process that would help recognize that, while also making it possible to provide the requester with information based on the criteria established or determined by parliamentarians.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you, Mr. Chair.

If I have understood correctly, the non-disclosure of information is more of an exception, correct?

Generally speaking, information is transmitted in a totally natural way, without any real problems.

However, should a decision be made to establish the criteria for that disclosure, I think those criteria would rather address exceptions because, constitutionally, House privileges exist, whether the House is sitting or not. They are used all the time. If I have understood correctly, exceptions would be used to establish those criteria.

[Marc Bosc]

For instance, a list should be established of all the documentation held by a department, an auditor general or another officer of Parliament that could be requested by someone for consultation. We are talking about a fairly limited number of documents. Among them are emails, briefs and draft submissions. There is a list of documents that could be requested.

I do want to make it clear that we are not talking about access to information requests made to the committee. It's a matter of requests made to other parties. We're not talking about all the documents the committee has.

[Richard Denis]

That's why it is important, Mr. Chair, to have criteria so that certain situations that may affect other parties can be analyzed. I am referring to confidential information and things we don't want to disclose.

Earlier, I talked about requests regarding the statements of witnesses appearing before a committee. In some cases, we may not be talking about the final version of those presentations, but they would nevertheless contain information that should not be disclosed.

That whole issue must be analyzed so that, when parliamentarian make a document public, they can ensure the protection of their privilege.

[Marc Bosc]

I would also add that witnesses greatly benefit from parliamentary privilege when they appear before the committee and deal with it. That's a very important element.

[The Chair, Conservative, Joe Preston]

I don't do this very often, but I'll ask another question.

You suggested during this process it doesn't matter that it was the AG who had the ask for an access to information, but in this case it was that. They ruled in their thought process that privilege was not one of the exclusionary methods. They had decided parliamentary privilege was not one of the reasons to exclude documents in an ATIP request.

You suggested to them, on our behalf hopefully, that you thought it was a reason for exclusion on an ATIP. They came back and said no, they still thought it wasn't.

Is this where a solution is? Do we just put privilege in that spot where the interpretation is that some privileged documents from committees would be exactly that?

[Marc Bosc]

I have a slight variation on that description in the following way. Really the argument was over what constitutes a proceeding in Parliament. I think the view they took was that the emails were not part of a proceeding in Parliament.

Is that accurate, Richard, or not quite?

[Richard Denis]

Not exactly. Again, I don't want to speak in the name of the Auditor General's legal counsel, but the way the position was presented to us is they did not find an exception for parliamentary privilege in the act, so they're saying there's nothing that allows us not to release the documents because it doesn't talk about privilege. However, the position being that we felt it was, we thought that going to court and asking the Federal Court for a decision about it would be the only way that they would accept that the documents could be released. That's why it ended up as a process in front of the Federal Court. They didn't have the exception in their legislation, which you find in some other jurisdictions, and we thought the documents were covered.

Really it's because there was a lack in the act, not dealing with parliamentary privilege, that did not allow them to find the exception that would have been accepted.

[The Chair, Conservative, Joe Preston]

Thank you. I thought maybe there was a solution there. It looks as if we're a little more distant.

Mr. Garneau.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

I was going to say that Monsieur Denis said it.

[The Chair, Conservative, Joe Preston]

He covered it, yes.

That's all I have on the list. Thank you very much for what you have shared with us today. I'm not certain we haven't asked more questions than we have answered, but it is now up to this committee.

Mr. Lukiwski said that if you have some thoughts on solutions to this perhaps you could provide them to us. I think we're all looking for a light switch to flick that's going to fix this in a more wholesome sense. If you have that light switch, please share it with us. If you don't, or if it's a series of switches, I guess we'll have to get that too.

How can we count on that transfer of information?

[Marc Bosc]

Mr. Chairman, if you agree, we can have our staff talk to the committee analysts and share thoughts and convey some ideas to the committee in that way.

[The Chair, Conservative, Joe Preston]

That would be a great method of doing it. I have been discussing our next steps with our researchers and analysts. I think that's sharing of information so by the time we meet again we can have some discussion on what this committee will do next. I think we're still in the gathering of information stage rather than the fixing stage, so let's have your department talk to our analysts about this. We'll set some time aside as a group to suggest whether that is or is not a solution.

As I said, I wish we could grab this one as a one size fits all, and use it, but it doesn't work that way.

Are there thoughts from the committee on what the chair has just suggested?

Great. Thank you.

Thank you for joining us today.

We have some committee business to cover, so we will suspend and go in camera and discuss it.

[Proceedings continue in camera]