Procedure and House Affairs Committee on May 28th, 2013

[The Chair, Conservative, Joe Preston]

We will start our meeting.

We are here, in the first half hour of our meeting today, pursuant to Standing Order 110 and 111, an order in council appointment of Richard Fujarczuk to the position of Law Clerk.

Sir, if you have an opening statement and you'd like to share it with us, that would be great. Then we'll ask you a few questions.

[Richard Fujarczuk, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chair,

and honourable members.

You have a copy of my statement, but I would like to present it.

Thank you for inviting me to appear before you to discuss my competencies and qualifications to perform the duties of the Law Clerk and Parliamentary Counsel.

Before I speak to these matters, let me say that it is a great honour and privilege to have been given the opportunity to serve this House and its members.

I will do my utmost to discharge these duties in a manner that justifies the trust you have shown in me.

You have before you a copy of my curriculum vitae. I do not intend to take you through it in detail, but instead wanted to touch on the major themes as they relate to the duties of the Law Clerk.

When I first reviewed the description of the position, it was apparent to me that there were two very different roles. One role, borrowing from a text of the Speaker of the House, is to act as "In-House Counsel" to the House of Commons and Members of Parliament.

The other role relates to the specialized support provided in the legislative context particularly in respect of private members' bills and amendments. To take on this role, a candidate has to be well-grounded in one or the other of those domains. Finding someone with mastery of both sets of skills would be a challenge, I think.

Frankly, my strengths lie on the in-house corporate counsel side of the ledger. In this role, many of the functions are very like those I performed while with two federal crown corporations: the National Capital Commission and Atomic Energy of Canada Limited. These involved, among other things, providing legal advice and support in matters related to contractual obligations, labour and employment law, and litigation, while also serving as part of senior management in terms of corporate governance and planning.

What is different about the position of the Law Clerk is that legal advice and support must also be provided in respect of matters that are unique to the House. Matters of privilege are first and foremost here, but also matters of constitutional and parliamentary law that would not typically arise in other entities or contexts.

However, when I moved from private practice to the NCC, and again from the NCC to AECL, I had to very quickly become adept in areas of the law that previously I had no personal hands-on experience in. I'm a quick study, and whether it was access to information and privacy or the legal implications for my client of the differing approaches of nations to dealing with nuclear liability, these were areas in which I became conversant reasonably quickly.

I want now to touch on the area of legislative drafting support.

Both at the National Capital Commission and the Atomic Energy of Canada Limited, I was involved with the legislative and regulatory drafting process in matters related specifically to those two crown corporations.

However, I was also involved with the project undertaken by the Minister of Justice to ensure that all federal legislation spoke equally in English and in French, and in both juridical contexts, the common law and the civil law. I have some experience here, but will need to strengthen my abilities in this area, and have the confidence that I can do so.

I wanted to highlight something else that is unusual about the NCC. It owns real property and assets and conducts programs on both sides of the Ottawa River and therefore in both legal systems. Although my formal legal studies were of the common law and I am a member of the Ontario Bar Association, I have had more than a passing exposure to the civil law regime. I think this is a valuable asset in the in-house counsel role.

A final note is that at both the NCC and Atomic Energy of Canada I practised in a highly regulated environment and one that was subject to considerable external scrutiny. I believe that too will bear dividends in my new role.

I would now be happy to answer any questions you may have for me, in English ou en français.

[The Chair, Conservative, Joe Preston]

Thank you very much.

We'll go to questions. We have seven-minute rounds. We'll try to do one of them.

Mr. Reid.

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

Thank you very much.

I want to start by asking if you'd agree with this general characterization of one of the aspects that makes your job unique. I could be wrong and I'm genuinely interested in what you have to say on this. It seems to me that an unusual situation exists. There is an unusual tension inherent in our Constitution in that the written Constitution discusses the idea that Parliament carries on and inherits privileges associated with Parliament from the United Kingdom. We have a Constitution modelled on and similar to that of the United Kingdom, which implies that Parliament's privileges have some kind of protection and that there's a need to draw boundaries around them to ensure that they are respected.

However, ultimately, unlike in Britain, those boundaries, if push came to shove, I suppose could be resolved through the courts. Thus, someone who deals in the law, as opposed to the conventions relating to parliamentary privilege, would have some say in the matter and presumably have to develop some opinions on it. I'm curious about your thoughts on this. Is it a serious area of concern?

[Richard Fujarczuk]

You've touched on an important area. I will say this is my eleventh day in the role. I haven't yet developed the level of mastery of the nuances of constitutional and parliamentary law that I need for this role. What I'm sensitive to and what I'm alive to is that there are domains in which Parliament has enacted legislation to carve out areas that would historically have been the subject matter of privilege.

I'm alive to this issue. I can tell you that the briefings I'm getting from my staff are sort of like sipping water from a fire hose right now, as I try to develop the fluency I will have to have with these concepts. I can only assure you, as I said in my opening comments, that I'm alive not just to this but to an array of other issues that raise profound questions that my staff and I will be expected to respond to.

Maybe that's another thing I need to point to. The good news for me is that I'm not alone in this position. I have a team of people and a long tradition of having worked on these very sensitive questions, and I intend to make full use of that. I believe I have the full support of the team, and I am encouraged and pleased by the kind of welcome I've received from them and the kinds of briefings they started providing for me even before I arrived.

I'll ask you to give me a little time to develop the kind of mastery I need. I understand you have considerable experience in this domain, and it is an important issue, but I think it would be a bit premature for me to try to expound on those issues right now.

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

Right. Out of curiosity, could you expand on your team, who they are? I know they're very good, very professional. We've seen them at work in the past. If you would, please tell us a little bit about who they are and what they do.

[Richard Fujarczuk]

The team breaks down into two distinct functions: we have what I'll call the legal side of the team and the legislative support side of the team.

I'm sure you have dealt with Richard Denis, the deputy law clerk. Amongst the other lawyers, we have Steve Chaplin, Catherine Beaudoin, Anne-Marie Genin-Charette, Greg Tardi, and Louis MacHabee. We have a good group of lawyers with an array of both calls to the bar and experience in different domains who form that side of the House, I'll call it.

Then we have the legislative side of the House, who are providing the direct support for the private members' business. They're headed up by Marie-Andrée Roy. We also have Doug Ward, who is one of the drafters there.

To be frank, I've been taking things in little bites. I started on the legal side and I have not worked as closely yet with Marie-Andrée and her group, and for a good reason: they are quite occupied right now with a lot of private members' business that's coming forward at this point in the sitting.

I have a lot of confidence in what I've seen so far in their abilities. I can see their capacity to respond to demands in a timely fashion, and this is something that is very encouraging for me.

That gives you a bit of the flavour. Of course, there's a team behind them, supporting the administration of the office.

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

Thank you.

Do I have any time left, Mr. Chair?

[The Chair, Conservative, Joe Preston]

You have a minute and a bit.

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

I'm curious. Obviously we are not the only parliamentary body in the country. There are 10 provincial legislatures. Do each of them have a parallel office to your own, or do they structure it differently from the way you do here?

[Richard Fujarczuk]

My understanding is that they do. I have reached out to the association that represents that group. I'll be meeting with all my colleagues and peers in Edmonton in September, for a couple of reasons, frankly: to build that network with them and to learn what I can from them. There are like offices in the other jurisdictions.

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

Thank you very much.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Reid.

Mr. Cullen, you have seven minutes or any portion thereof.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Good morning. Thank you.

Any portion thereof? I'm in politics, Chair. It will be the entire portion, trust me.

Mr. Fujarczuk, I offer a sincere welcome from the official opposition, the New Democrats. You have a very challenging job. You have an impressive resumé.

Members of Parliament, and therefore Canadians, rely a great deal on the advice we receive from your office: that it's of the highest quality, which it has always been, and that it is non-partisan, as it has always been.

Parliament is a unique body. We like to think of ourselves as unique, compared to other institutions, and it's a highly charged environment—I'm sure you appreciate that.

As I said, you have an impressive CV, and you made some mention of this in your comments. I'm searching for what you're going to rely on from your experience to make those decisions you'll have to make when offering us legal counsel in this unique and politically charged environment. Have you had other experiences you'll be able to draw on in which you've had to make those kinds of decisions in that kind of context?

[Richard Fujarczuk]

If you're talking about the politically charged environment, I'm not going to make equivalent the experience I had, for example, working at the National Capital Commission. There are several different quantum steps between the two; nevertheless, there were issues that polarized the local community in which the NCC was involved during the 19 years I was there. Certainly dealing with very strongly held views, frequently on opposing sides of issues, was a real learning experience for me, and learning how to navigate in those waters was important.

I want to bring this nuance to it. As legal counsel you end up giving different types of advice. The rule I always held first and foremost was that if I'm acting purely in the role of legal counsel and there's a decision to be taken, the objective I want to achieve is that the decision-maker is a fully informed buyer at the time of making the decision. It's frequently not the case that the lawyer is making the decision; he's providing the legal analysis that supports the decision-maker in moving forward.

That's not always the case, depending on where you are in the management structure of the organization. As I became part of the management team at the NCC, it became one thing to have my lawyer's hat on and advise on the legal implications of what they were proposing to do or the options they were considering. My job was to make sure they were fully conversant with them. Then, as a member of the management team, I had a role to play there in offering my thoughts on the preferred way to go.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

What qualifications do you have to help you face very political decisions? We have to make some decisions at this time regarding the Senate and the scandal involving Mr. Duffy and Mr. Wright. The answers are not very clear from a legal perspective.

As you say, with your legal hat on there's not always an answer you can give as counsel to say, “This is absolutely where the law lands and you will be correct in saying this.” You present options, risks, and whatnot.

In the role you're playing right now, incorporating constitutional aspects of this, which are different from corporate aspects, a similar affair of a cheque or some potential malfeasance would look different under an NCC lens, under AECL, under a corporate lens from how it does here in Parliament.

You mentioned earlier about relying on corporate knowledge, I suppose, to use a term, that exists within your team right now. That gives me some assurance, to be frank. Again, your resumé is very impressive, but the application of those experiences to this particular environment, when the advice you will be offering us could potentially be so important to the sanctity of Parliament and its ability to do its work, to hold government to account....

Do you follow me? I want to be very respectful, absolutely.

[Richard Fujarczuk]

I appreciate that. I guess my response is this. As I said, I'm not going to pretend that I have experience I don't have. I've offered you the kinds of experience that I do have. That's the closest touch point to the kind of thing you're talking about.

What I can offer you is this, and I think the CV bears this out. I'm thorough in terms of preparing and responding to things. I have a good work ethic. I have a good team work ethic as well, with the group that's around me. What I have found is that the thing that best serves me, whatever the situation, is the preparation, to have the best possible understanding.

I'm not going to pretend, as I said, that the kind of nuanced advice that I may have been giving in the previous context compares, but it gives me some touch points for this. As I said, I'm a quick study, not just on the legal side, but on the broader dynamic, and I will rely a lot on that corporate knowledge in the group to inform my ability to respond to these kinds of challenges.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you for that.

This is an unusual type of job interview. It's not really, but it is, by the acts of Parliament and how you come to the role you have. In this committee we ask questions that you may see in a normal job interview but in a different context.

One of your roles in offering advice to parliamentarians on all sides of the House is the ability to speak truth to power, where a member of the opposition presents your office with some legislation that is unconstitutional, according to your advice, yet it may be politically important for a government or an opposition member to present that bill. What experience have you had in having to speak that truth to power, in giving advice that people don't want to hear, yet is important for, again, protecting Canadians' right to have a Parliament and a government that actually respects their Constitution?

[Richard Fujarczuk]

I think what you're asking is...it's the essential role of what the lawyer does for the client always. I've had many times, within private practice and in public practice, where the clients didn't want to hear what I was telling them. It goes back to that opening rule that I stated for you, which is that I view my role, when I'm wearing the hat of lawyer, especially when there are competing options, as making sure that the client is fully apprised of all of the risks and consequences of what they're going to do. I have no difficulty telling them that.

In a sense, I have the ability to stand off and say, “I'm giving you legal advice. You're going to be making the decision, but when you do it, you're going to be an informed buyer; you're going to understand the implications that flow.” I think that's the best I can do as the lawyer.

I remember when I first came into public practice, it was very common to hear this kind of conversation: “He doesn't want to hear that.” I found that totally absurd, because the consequences of someone not hearing and being ill-prepared or blindsided, in my view, would be far worse than being confronted with your honest take on what the story is.

That's been a guiding principle for me throughout private sector days and public sector days. It's the way I view my role. As I said, I take very seriously the trust you're placing in me. I consider this an incredible honour, and I'm going to do everything I can to discharge the function in the fashion I spoke about.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Cullen.

Mr. LeBlanc, you have seven minutes, please.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you, Mr. Chairman.

Mr. Fujarczuk, welcome. Welcome to Parliament. I share my colleagues' views that your resumé, your experience, is impressive. We're lucky that somebody of your experience was interested in assuming what I'm sure you'll find at some points is a nightmare function.

I note that in 1975 you graduated from St. Michael's College at the University of Toronto. A decade later, I got my first choice of colleges and I went to Trinity.

[A voice]

Oh, oh.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

I'm glad to see you're a U of T grad.

I wanted to follow up perhaps on Mr. Cullen's questions. I had a brief experience in the private practice of law in New Brunswick, and I've often wondered about people who work as legal advisers in a context as complicated and as treacherous as Parliament or the House of Commons. You'll have people asking you, and I hope in good faith, for legal advice or a legal opinion with perhaps completely contradictory objectives. They're hoping you'll say that such-and-such is possible, or such-and-such is not, or that something is wise or is unwise.

On the exact same issue, probably more than any other function...and I was trying to imagine a large crown corporation like AECL or an organization like the National Capital Commission, which, as you correctly noted, at various times on various issues becomes politicized, often around different development initiatives, different policies, or decisions they make obviously in this city.

In my experience as a parliamentarian...and it's different, to be fair, in a minority context than in a majority context, where there's a bit more predictability, both in committee deliberations and in votes of the House itself. But one thing that I was struck by, albeit in the minority context of either Mr. Martin's or Mr. Harper's government before 2011, was the ability of parliamentarians or committees to get access to information.

This is not in the context of the legislation, of the statute, but to be able to dig out or tease out particular information from governments or in some cases from other parliamentarians. The Senate process that may be undertaken in the coming weeks will again sort of touch on this idea of the ability of people to get information that people claim as parliamentary privilege or, in the solicitor-client context, as solicitor-client privilege.

In your experience, either at the NCC or at...and you'll forgive me if I don't understand the extent to which access to information applies to the National Capital Commission or to AECL. I see in your resumé that you were involved in the access to information and privacy context, so I assume it fully applies to the NCC.

[Richard Fujarczuk]

It fully applied at the NCC. There was an area that was carved out of the application of ATIP in the context of AECL, for obvious reasons.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Sure: business and commercial—