Certainly. Thank you, Mr. Chair.
In terms of the unintended consequences of an amendment to the Access to Information Act, I'll start by stating that yes, there are certainly issues with the act as it's drafted presently because it does not address the question of parliamentary privilege, and that's essentially the reason we are here today: we don't really know how to deal with it. But if the act were to be amended, you would be faced with a situation where only the access to information regime would be clarified, whereas there might be other situations in the general sense where the privilege of the House could be affected.
I'm not getting into too much detail, but there are situations concerning human rights or the Privacy Act, financial administration. There are other situations in the general context of the statute law that could also raise questions about the privileges of the House. So if you were to amend only the Access to Information Act, one of the consequences would be that you would solve one problem, but you could also have others.
We've identified a few here that I could just briefly read into the record. Legally and constitutionally, it is for the House to make the determination on whether documents are covered by privilege. If that were the case, could there be a judicial review of this? That is a question that would have to be looked into as well.
The other problem you would have is.... Remember that the study here is essentially to decide whether or not requests to the House from third parties can be refused or excluded. This is in the context of the definition of proceedings in Parliament and what are proceedings in Parliament, so that question would still remain. How far privilege applies, or how far or what kinds of documents could still be requested, could be clarified through a report of the committee, but these kinds of questions would be lagging.
My point is that by only amending the Access to Information Act, you're limiting the solution.
In terms of proposed solutions, there are a few we have considered in addition to proposing amending the act. In the Parliament of Canada Act there are provisions where the privileges of the House are recognized. I will just briefly quote section 5, which tells you that:
5. The privileges, immunities and powers held, enjoyed and exercised in accordance with section 4
—which recognizes them—
are part of the general and public law of Canada and it is not necessary to plead them but they shall, in all courts in Canada, and by and before all judges, be taken notice of judicially.
One way of maybe solving or proposing an amendment would be to add to the Parliament of Canada Act a recognition of some sort that would make it necessary to recognize the nature of privilege. That way there could be language we could propose to the committee, in the sense that as a general rule the necessity would be imposed to take into account privilege in the application of all of the statute law. So you would have some sort of a head provision in the Parliament of Canada Act that would cover most situations.