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

[Richard Denis]

Essentially, it also confirms the importance of recognizing parliamentary privilege.

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

Oh, absolutely, I'm not gainsaying that at all.

Do I have any time that I can pass on to Mr. Martin?

[The Chair, Conservative, Joe Preston]

Sure.

Mr. Martin, it's good to have you here this morning.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you. I appreciate that.

I have had a long-standing interest in the issue of freedom of information. The point I was going to make was exactly the one Mr. Scott just made about the quasi-constitutional nature of the reference we've heard often.

It puts us in a bit of a conflict, even as members of Parliament. We are duty bound to uphold the concept of parliamentary privilege as parliamentarians. But as representatives of the general public, trying to protect and defend this public, what we believe should be a public interest overrides it. If there are going to be competing interests, which ones have primacy should be on the side of the people, I think, and the people's right to know should be considered absolute.

Freedom of information is the oxygen democracy breathes. It is a fundamental cornerstone of our democracy. In trying to consider whether we should follow other jurisdictions and put in place a discretionary exemption versus an absolute exclusion, I don't think we should have to debate that for very long. The idea of a codified discretionary exemption I think should have more weight than the notion of exclusion and having to fight for the public's right to know. I think that should be considered absolute by members of Parliament. The public has a right to know what their government is doing, subject to very few limitations, such as national security and commercial privacy, etc.

How do you reconcile the fact that other jurisdictions have in fact managed to codify those competing interests, and which one do you think does it best?

[Richard Denis]

Well, Mr. Chair, transparency and privilege don't necessarily have to be at odds. The question here is about control, by the House, of the documents it considers privileged. Even if certain situations or documents are considered privileged, it doesn't prevent the House, as a whole, deciding to release them.

[Pat Martin, NDP, Winnipeg Centre, MB]

It's up to Parliament to make that determination instead of going to the courts.

[Richard Denis]

Right. But in the context of documents that touch on the House of Commons, it's for the House itself to decide whether that privilege would be waived. The House could decide that in certain specific situations it would define that maybe what the committee would do—

[Pat Martin, NDP, Winnipeg Centre, MB]

So it should be the Information Commissioner who would make that determination.

[Richard Denis]

No.

[Pat Martin, NDP, Winnipeg Centre, MB]

Why not?

[Richard Denis]

It would be the House developing a process by which it would characterize or qualify different types of requests. Although it would still remain privileged, it would allow them to be released.

[The Chair, Conservative, Joe Preston]

Thank you.

Go ahead, Mr. Reid. We are in a four-minute round, but we have been quite generous.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

My intervention is to seek some clarification from Mr. Scott vis-à-vis his comments regarding quasi-constitutionality. I'm not sure what he thought was quasi-constitutional.

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

Sorry, Scott. I was talking to the real brains here.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Well, we all know that's false modesty.

I was just asking you what you were referring to as being quasi-constitutional.

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

It is the statute.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

It is the statute.

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

It's the same way the courts refer to and approach the Canadian Human Rights Act, for example.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I assume that when you say quasi-constitutional, you mean it in the sense that it is a bill that supercedes any other piece of legislation written afterwards, unless that piece of legislation says “this applies, notwithstanding such and such act”.

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

It can actually be a looser idea than that. It could be the idea that where there are conflicts or interpretive debates on how the statutes interact, the one that is quasi-constitutional would presumptively prevail in a case of conflict.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

You are actually talking about something different from what I am describing. What would be in, for example, the Official Languages Act that applies in the interpretation of any later statute, including one that contradicts it, unless that act specifically says that it applies notwithstanding...?

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

Quasi-constitutional would include the exact dimension you referred to, which doesn't seem to come up here.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Is that actually written into the act? I'm just trying to confirm that. It has some importance to our discussion.

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

No, it's a Supreme Court interpretation, and it's language used by the court. This is where we get the same idea of the Canadian Human Rights Act being quasi-constitutional.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I think the Canadian Human Rights Act says it applies in a manner that requires any future act to specifically say “this act applies notwithstanding”.

It's an important distinction. I'm not saying that the law shouldn't say it, but if it doesn't say it, we're talking about a different concept. It's important to clarify that.

It sounds to me as if what you're saying—you may not be saying this, and it just sounds this way to me—is that the act is dealing with an area that is not actually part of the written Constitution; it's part of what would be effectively the unwritten constitution we've inherited from our Westminster predecessors. When it's dealing with those unwritten areas, one of which would be parliamentary privilege, the act should be read in a very broad, large, liberal manner. Is that effectively what you are saying?