Procedure and House Affairs Committee on Dec. 6th, 2012

[Craig Scott, NDP, Toronto—Danforth, ON]

To clarify, in previous instances where it's been operating in that fashion, with the view that it's effectively an implicit procedure within the act, it's also been in cases of parliamentary privilege. There have not been consultations based on, “Oh, we think there are confidentiality issues”, or “They're not picking up privacy or other issues”; it is clearly that there have been instances, apart from the Auditor General situation, where consultation relating to parliamentary privilege has been brought up.

[Richard Denis]

Yes, Mr. Chair, and specifically on the occasions we've had in the past, when situations were directly related to parliamentary privilege, because we also get a lot of situations that deal with things that are not privileged.

In the specific case of documents that we consider covered by privilege, up until this situation the departments accepted our position that the documents were covered by privilege. Of course, we don't know exactly what happens once we tell them that it's covered by privilege, because there's a process for them to go ahead with and we're not informed. We assume that they accept the position; we don't hear back.

So we assumed that the position that had been taken by the House up until then was accepted by many departments, not just one specifically.

[Craig Scott, NDP, Toronto—Danforth, ON]

All right.

Does anything about your analysis change—

[The Chair, Conservative, Joe Preston]

Mr. Scott, you're over by about a minute. I was really interested in the last bit, so I let you go longer.

Mr. Williamson.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Thank you.

And Mr. Scott, thank you. Those were all good questions.

I have two questions, I think, and I'll lead off from the top. It was suggested that if this change were made in the act, it could have unintended consequences. Is that true of...if we step back? If we were to begin as parliamentarians to reinforce this right in certain pieces of legislation, might a future court—if that were not done down the road—say, well, because Parliament didn't explicitly reinforce its privilege, we're going to assume they didn't want it to be there in another piece of legislation?

You could actually have a cascading effect. You maintain, I think correctly, that this right is there. If we follow that up in legislation, what would the ramifications be where it's not done?

[Richard Denis]

The risk is always there, but another solution could be envisaged. As opposed to just amending, for example, the Parliament of Canada Act, as I was proposing, you could maybe have a hybrid solution where you would amend both the Access to Information Act and the Parliament of Canada Act. You would cover most of the situations.

[John Williamson, Conservative, New Brunswick Southwest, NB]

I guess that's where I'm a little confused. Your testimony was actually quite strong and firm that this is a right, and it is a right in the Constitution, and all legislation must fall under that. Where your position weakens a little bit is that you're suggesting remedies to that. But if I had not read your last two points, I would have said that we can actually do nothing, that courts will uphold this right, as they would any other constitutional right. So in fact it might be best—the way the clerk's nodding, perhaps it is best—

[Richard Denis]

I'm nodding too.

[John Williamson, Conservative, New Brunswick Southwest, NB]

—to do absolutely nothing and just uphold this right, close the book, and move on.

[Richard Denis]

I apologize for not having been clear.

Yes, essentially the “doing nothing” solution is one that would definitely work, because as I expressed, the concepts are there, the Constitution is clear, and the fact that privilege is of a constitutional nature is an overriding principle that, in the absence of any change to legislation, would be, I would argue, a process that ultimately a court would recognize.

[John Williamson, Conservative, New Brunswick Southwest, NB]

You kind of pulled back there. Is it the optimal solution, in your opinion, to just leave things as they are?

[Richard Denis]

Well, doing nothing would work, but we'd still be faced with the situation where....

Let's say we dealt with a mechanism by which the House would know how to deal with specific documents, and we went with that. We would claim privilege to certain documents—assuming the department would accept that position, because it would be expressed by the House in a forceful way. So that's assuming they would accept it, but they could still say, “We don't agree with your position”—essentially, they don't agree with the House—“that the documents in question are privileged.”

So it would still end up in the courts, and you would still have that same battle.

[John Williamson, Conservative, New Brunswick Southwest, NB]

True, but—

[Richard Denis]

That's why a solution could cover that by being a little clearer in how to deal with the cases.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Perhaps someone else will pick up on that. I'm running out of time, and I want to ask a broader question out of that.

A change that was made could also open up that unintended consequence as well; this is not a solution that's also going to bring certainty.

[Richard Denis]

It's not a definitive solution, no.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Those are my questions. Thank you.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Williamson.

Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

I wanted to start by asking if Madame Latendresse could begin, and then I'll take over.

[The Chair, Conservative, Joe Preston]

Certainly, by all means.

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Thank you.

I understand quite well that in any case, the Constitution has precedence. However, the problem raised by Ms. Legault when she appeared before the committee is that she does not have a choice. She has to comply with the Access to Information Act. Currently, given the text of the Access to Information Act, in such a situation, she will not have a choice. She will have to go to court to explain that there is nothing in the document she depends on that prohibits her from divulging information because of parliamentary privilege.

I understand that in court, the Constitution will always have precedence. That is understandable. Would there not be some way of preventing that and of arranging things so that they are clear immediately, so that there is no need to initiate long, costly legal action to obtain a final decision that will most likely be in favour of the Constitution?

[Richard Denis]

Without a legislative amendment, the solution would be that the commissioner or the departments recognize the fact that the constitutional status of parliamentary privilege gives it precedence over laws, and among others over the Access to Information Act. Operationally speaking, if the House of Commons affirmed its privilege in a report passed by the House, the departments would have to acknowledge in a formal way, through some practice, that privilege must be recognized in the case of requests involving the House of Commons.

[Craig Scott, NDP, Toronto—Danforth, ON]

Okay. That is a key point, and I think Mr. Lukiwski has made it himself, about avoiding conflict. We have a slightly different legal template going on between the approach you've taken and the approach of Madame Legault. Part of the issue is one of avoiding conflict and lack of clarity for too long. That's at least one reason why we would be considering some form of amendment to the act, as a recommendation. But I understand your view that it wouldn't be necessary.

In the interaction between a statute and constitutional principles, rules around privilege, if that statute is viewed by the Supreme Court as quasi-constitutional in nature, it's in fact giving expression to principles that may have some constitutional basis and putting them in statutory form. Does that change any of the dynamics? Does it make it even more pressing that we create clarity through an amendment?

[Richard Denis]

It makes it more pressing to create clarity. But if you were to look at it from a constitutional point of view, and if you were looking at two constitutional or quasi-constitutional principles, a court would have to look at them and weigh one against the other, or at least ensure that one does not play against the other. That would create maybe a situation under which both would have to be recognized. That was what happened in the Vaid case or in New Brunswick Broadcasting, where the charter and privilege, both being constitutional, both had to be recognized at the same time.

[Craig Scott, NDP, Toronto—Danforth, ON]

Right. That's kind of where I was going, so I appreciate the answer.

The chief justice gave a speech this year reminding us that the court in the Lavigne case referred to the Access to Information Act as quasi-constitutional. If you look at the purpose of the act, in subsection 2(1), it addresses giving effect to “the principles that government information should be available to the public”. If you look at the notion of transparency and how it's connected to the underlying constitutional principle of democracy itself, in the Supreme Court's reference case you can see where the quasi-constitutional idea comes from. I just wanted to make that clear.