Procedure and House Affairs Committee on Feb. 26th, 2015

[The Chair, Conservative, Joe Preston]

I'll call the meeting to order. We are here today with Monsieur Dufresne.

Welcome. I'm happy to have you with us. I think the procedure and House affairs committee may become a bit of a second home for you. If you look back, you'll see that our law clerk visits us often. We're happy to have you for your first visit. I understand that you have an opening statement. Then we'll have some questions from members. We'll try not to be too tough on you.

Please go ahead.

[Philippe Dufresne, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chair, vice-chairs and honourable members of the committee.

It is a great honour and privilege for me to appear before you today to discuss my qualifications and competencies to perform the important duties of the Law Clerk and Parliamentary Counsel of the House of Commons.

Let me first introduce myself. I was born and raised in Montreal, Quebec. I studied there at the Collège Jean-de-Brébeuf and then McGill University, where I completed degrees in civil and common law before becoming a member of the Quebec and Massachusetts bars. Following my articling at the Montreal law offices of McCarthy Tétrault, I joined the Canadian Human Rights Commission's legal team in 2000 to work on pay equity, harassment and discrimination cases involving various federally regulated organizations.

Throughout my legal career, I have developed an expertise in human rights, public and constitutional law, including the law of parliamentary privilege.

I was lead counsel for the commission in the landmark Supreme Court of Canada case of the House of Commons v. Vaid, which clarified the scope and application of privilege. I also had the opportunity to make submissions before the Federal Court and the Federal Court of Appeal in the matter of Pankiw v. the Canadian Human Rights Commission, dealing with the application of parliamentary privilege to the sending of householders by members. Last, I represented the commission in a case raising privilege and human rights issues with respect to the closed captioning of the House of Commons debates.

In addition to the Vaid case, I have appeared before the Supreme Court of Canada on 14 separate occasions in cases raising issues such as the separation of powers, the impartiality of tribunals, the accommodation of persons with disabilities, freedom of expression, employment law, and more recently, the balancing of national security and human rights.

Through the years, my legal and management responsibilities at the commission steadily increased, culminating in my last position as senior general counsel and director general responsible for all of the commission's legal and operational activities pursuant to the Canadian Human Rights Act, the Employment Equity Act, and the Access to Information and Privacy Acts.

In this capacity, I was a member of the commission's senior management team and led a branch of 91 employees, including lawyers, mediators, investigators, auditors, and support staff, with a budget of $9 million. As the commission's principal legal adviser, I appeared before parliamentary committees to provide the commission's position on various human rights issues.

I've always put a high premium on public service and on giving back to my community and my profession. As such, I've served in various capacities of the Canadian Bar Association over the last 10 years, including as president of the constitutional law section of the Quebec branch and as a member of the editorial board of the Canadian Corporate Counsel's CCCA Magazine and the Public Sector Lawyers Forum. I've also served on the board of Big Brothers Big Sisters of Ottawa.

I believe in the importance of education and mentoring. As such, I've been a part-time professor in law faculties and continue to serve as a judge in annual mooting competitions for law students across the country.

Like many of you, my interest in parliamentary democracy has permeated both my professional life and my personal life in subtle yet formidable ways. As a student, I participated in programs such as the Forum for Young Canadians. As a young adult, I met my wife Natalie while we both worked as tour guides on Parliament Hill. As a lawyer, I participated in some of the most pivotal cases on parliamentary privilege.

I have a deep respect for the House of Commons and am very proud to say to my young children, Béatrice and Léa-Hadrien, that I am working with an incredible group of dedicated colleagues to support this fundamental institution in our country. I believe that my combination of legal, senior management and volunteer experience has given me the necessary qualifications and competencies to perform the duties of Law Clerk and Parliamentary Counsel of the House of Commons.

Throughout my career, I've been guided by the values of balance, impartiality, fairness, excellence, and respect for the democratic and legislative processes. Those are the values that I propose to bring to my role as Law Clerk and Parliamentary Counsel.

In closing, I would like to thank the team in the Law Clerk's Office and, in particular, the Deputy Law Clerk, Richard Denis, for the warm welcome and the great support they have given me since my arrival on February 9.

I'll be happy to answer your questions.

[The Chair, Conservative, Joe Preston]

Thank you very much.

If I could just say a couple of things off the top, you're right: Monsieur Denis has done an excellent job of helping this committee and another one I've been working on. We thank him also.

Also, I was at the Forum for Young Canadians last night. It's always a bit refreshing to see the leaders of tomorrow. You can see where some of our forum members go to, right?

We'll go to questions from members.

Mr. Lukiwski, you'll go first, for seven minutes, please.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Welcome, Monsieur Dufresne. Thank you so much for being here.

I must say at the outset I notice with some appreciation your youthful enthusiasm and pleasant demeanour. I hope your interaction with parliamentarians over the next few years doesn't beat that out of you.

[Voices]

Oh, oh!

[The Chair, Conservative, Joe Preston]

We are in public today, Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I was choosing my words carefully. If we were in camera, it might have been slightly different.

You have an impressive resumé, an impressive background, and I say that quite sincerely. As a matter of fact, there are a couple of points in your CV, at least the highlights of your CV, that are certainly familiar to me, particularly the Pankiw privilege case and the householders. Of course, Jim Pankiw is a former parliamentarian from Saskatoon, Saskatchewan. I am eminently familiar with the case. It was interesting to hear you say that you were quite involved with that.

This question I have for you is more one of curiosity for me. I'm always interested in the motivation behind people who join an organization, particularly one such as this. Were you approached or did you actively seek this position out?

[Philippe Dufresne]

I had seen the poster for the position. I was familiar with the law clerk's office through my dealings with the office in litigation. I had always been impressed by the counsel and I always found that the issues involving the House of Commons legally were fascinating. So it was a combination of seeing this poster and then some contacts with some of my colleagues in the community bringing that position to my attention that led me to be consulted and to participate in this process to the headhunting and the normal course.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I assume also that when you first considered putting your name forward for presentation for this position you had done extensive research. Obviously you have made many presentations before Parliament before, so you had some familiarity. But did you have any opportunities to speak, for example, with some of the previous law clerks to try to get their perspective on the job itself?

[Philippe Dufresne]

I did not have that opportunity so I based my understanding and my interest on what I knew of the office, what I had seen the office do in terms of legal participation. As the process progressed further, I was able to speak with people from within the government to get a sense of what the office was responsible for and the challenges that were coming forward. I felt that provided me with enough information. I wasn't sure in terms of the confidentiality issues and so on about that. So I decided to wait until that was completed.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

You've been on the job since February 9.

[Philippe Dufresne]

I have.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Can you share with the committee any perspectives that you have, any thoughts that you may have on your approach to this position? Would they differ radically or even slightly from some of those of your predecessors?

[Philippe Dufresne]

I'm not in a position at this stage to compare my approach to that of my predecessors. What I can say is what I said in my remarks. The approach I will propose to bring to the position is similar to the one I brought to the commission. It's one of balance. It's one of impartiality. It's one of respect for the purpose of the institution and for the role of the members. At the commission we were involved in sometimes visible cases, visible issues—the Pankiw case is one, as is the Vaid case. The approach that I always took was what is legally required but also what's in the public interest and how we make sure that what we put forward is sound in law but also makes sense for Canadians, makes sense vis-à-vis the mission and the mandate of whatever institution is involved.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I thank you for that.

Frankly, Chair, and Monsieur Dufresne, I don't really have much more than that other than to say welcome. You're certainly a welcome addition to Parliament. I'm looking forward to working with you over the course of the upcoming months and hopefully years. If you have any other comments at the end of questions, I'd certainly welcome them. Beyond that, I think you're eminently qualified and I think that your motivations for taking this position, as you mentioned your vast interest in public service, is laudable. So thank you for that. Thank you for your service to Canada.

I'll cede the rest of my time. I don't know if any of my colleagues have any questions. If not, I'll certainly pass it over probably to Mr. Scott for some questions.

[The Chair, Conservative, Joe Preston]

That's where I'm heading, then.

Mr. Scott, take seven minutes, please.

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

Thank you.

Welcome, Mr. Dufresne, to the position.

I concur entirely with what Tom said about how impressive your career has been in an area of great personal interest to me, given my own background as a law professor working in broadly defined human rights fields. It's all the more gratifying to see that you have direct and intensive experience with parliamentary privilege issues. To me, it's all the better that you've had to think about those issues in the context of interacting with the general law of the land, especially human rights law.

So welcome. Frankly, I think we're all delighted that you've been appointed.

I indicated to you earlier that the question I am going to put is a generic one. It has nothing to do, as my comments would suggest, with your own appointment. Your appointment—and this is not uncommon with respect to parliamentary officers generally—is an order-in-council appointment, so it's effectively an executive appointment, and yet you're the law clerk to the legislative branch.

Do you see any problems with respect to how you carry out your job, or with respect to perceptions that need to be overcome, because of the appointment procedure? That's the simple question.

[Philippe Dufresne]

I think that in the case of appointment procedures for some other officers of Parliament, or indeed for judges, some of those appointments are made by the executive branch. What I would look forward to is how my conduct in fulfilling the duties of this position and serving the House and its interests.... This, I would say, is the mandate and is what will guide me. Similarly, an individual once appointed, say, to the bench becomes part of the judicial branch despite the fact that they were appointed by the executive branch, and they fulfill their duties accordingly.

Certainly I view the role of law clerk as being to act as a servant of this institution, the House of Commons, serving the members both with respect to legal advice and legislative advice and representing the institution in litigation. In some of the cases I was involved in, you had the law clerk's office in litigation and you had the Attorney General not always with the same position. I see that as continuing, and it is certainly how I would see the mandate, in light of the separation of powers.

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

Great. Thank you.

I think it's a good analogy you make with how judges are appointed in our system as well. Thank you for responding in a way that puts everything in context.

Regarding the Vaid case, could you briefly describe the issue and the result? I think Tom and a few others may be familiar with it, but it's a very important case. Basically, what was it about and what did it decide?

[Philippe Dufresne]

The Vaid case was a very important case for parliamentary privilege law and also for human rights law. It raised a number of issues. The main one came from the fact that the chauffeur of the then Speaker filed a complaint alleging that there had been discrimination against him in the context of his employment.

The House of Commons and the Speaker took the position that irrespective of the merits of that complaint, which they said was not substantiated, there was a bigger question of whether parliamentary privilege means that challenges of this nature involving employment should not be going to Canadian human rights commissions or courts because they fall under the internal affairs of the House. That was the major legal argument on privilege.

At the Canadian Human Rights Commission we took the view, which ultimately the Supreme Court accepted, that privilege did not apply to the management of every single employee. It could apply to some positions key to the legislative process, but not to the Speaker's chauffeur. The courts set out the test for privilege: that under the Parliament of Canada Act it had to have existed in the U.K. in 1867 or be established via the necessity test, i.e., as necessary for the conduct of parliamentary affairs.

Another issue was, accepting that the Canadian Human Rights Act applied, where those complaints should go. Should they go to the commission or should they go, under PESRA, to the Public Service Labour Relations Board? In PESRA, the Parliamentary Employment and Staff Relations Act, there is a section that said that no other act applies.

Ultimately the Supreme Court of Canada said, not on the grounds of parliamentary privilege but of PESRA language, that those complaints ought to go to PSLRB and not to the Canadian Human Rights Commission. At the end of the day, I think this is one of those decisions about which all parties were happy. The House I think appreciated the recognition of privilege and the constitutional nature of it and also appreciated that such cases would go to PSLRB, which is what the House had argued. The Canadian Human Rights Commission was satisfied that the human rights principles would be available.

It was a very important case in that it reiterated and clarified the test for privilege that would apply to all cases.

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

It did indeed, and one of its more general principles was, literally, the statement that legislative bodies created by the Constitution Act, 1867, which many of us think of as the BNA Act, are not shielded, like enclaves, from the ordinary law of the land. There are more steps necessary before privilege kicks in, and the necessity test that you articulated about it having to somehow be necessary for the dignity and the efficiency of the assembly or its members.... And so that's where I wanted to go.

I just wanted to ask this. The Vaid case didn't necessarily raise it. A slight tension, I would call it, with respect to the law clerk's roles over the years has to do with the clerk having a slightly bifurcated responsibility, one towards the assembly as a whole, the House as a whole, including some direct lines with the Speaker, yet at the same time, the law clerk is also to be the law clerk for each individual member.

So the question is, is this something that you've given any thought to and is there any sort of general position or approach you have to the question of relationship between privilege of the House and privilege of its members, or your relationship to the House as a whole and members and where they may conflict?

[Philippe Dufresne]

Right.

Well, it's a point on which I've been reflecting and my colleagues in the law clerk's office have been reflecting. It's an area that we've identified as one that we could continue to reflect on because, indeed, the law clerk's office is responsible for providing advice and legal representation to the House as an institution but also to members.

I think this is one of those areas where it may be challenging from a purely legal standpoint. Where you have a lawyer dealing with one client, if there's any tension between another client, then you could often say, “Well, I'm going to say no to this client, and I'm going to say yes to this one.”

I think that parliamentary privilege recognizes that the institution needs to have certain privileges, but the members as well have privileges, and that they need some autonomy sometimes perhaps even vis-à-vis the institution. This is something that we will look at, and again, I would bring this approach of balance and reconciliation.

Similarly in the human rights context, oftentimes we would have some tension between human rights and national security. My approach was always to say, “Let's not make it an either-or; we want both of those things”, and so I think in this case it would be a similar approach that I would try to put forth.

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

I just have one more question.

[The Chair, Conservative, Joe Preston]

Go ahead. I'm being really good today.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

The time I have left you can have.