Procedure and House Affairs Committee on May 31st, 2016

[Marc Bosc]

I'd simply draw your attention to the case of March 2001, which again is in your documentation. In that particular case, further steps were taken. The committee obtained documents from the government. It states that in October 2001, the government house leader provided the committee with an updated guide to making federal acts and regulations.

Steps were taken subsequent to that event. I think steps were taken in the government as well to rectify certain things. These are examples of the kinds of things that are possible.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

I'd like to head in the direction of asking the government to respond to what Mr. Christopherson was raising. I think that's a fair avenue to take.

Are there any other witnesses you think we should have here that might be of use to us?

[Marc Bosc]

That's entirely up to the committee.

In the past, if you look at these cases, you'll see different avenues followed: the member who raised the point in the first place, possibly the minister, or government officials. That's what was done in those cases that I'm referring to.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

I think we did put the justice minister on notice that we might be calling her. I guess we have started that process as well.

[Marc Bosc]

That's up to the committee, of course.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Thank you.

[The Chair, Liberal, Larry Bagnell]

Ms. Vandenbeld.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Thank you very much.

I'd like to go back to the idea that there could very well have been many precedents that are very similar to this that wouldn't have come to your attention because they were never raised as precedents in Parliament.

One example that I would like to point out is on the so-called Fair Elections Act, Bill C-23. I'm looking here at an article by Stephen Maher on February 2, which was two days before that bill was tabled in the House. To go back to Mr. Schmale's point, in the first sentence it says the Conservative government will introduce changes. Then, three paragraphs down “Conservative sources”; another one says it promised the government will “close loopholes to big money, and give law enforcement sharper teeth, a longer reach and a freer hand”. Then it goes on to say, “The bill would remove the Commissioner of Elections Canada, where the investigators work, from Elections Canada and set it up as a separate office, sources say.”

Would this not be considered very similar to the issue we're dealing with? But there was never any point of privilege raised in the House, because perhaps this is considered normal and expected when you're dealing with legislation.

[Marc Bosc]

It's hard for me to comment. I'm not familiar with the details of the case.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

We have to be very careful here. I assure Mr. Richards that we are taking this very seriously, because what we decide here is going to set a precedent.

I would be very concerned if we're setting a precedent in which we cannot talk in generalities about legislation that is being proposed, consult with Canadians, and that this may close dialogue in the future. I'm reminded, for instance, of the advice that we're given when doing private members' bills, where we do want to consult broadly with stakeholders and with colleagues. We can't give out the text of the bill, but we can certainly speak about what may or may not be included in the bill.

Could Mr. Dufresne or Mr. Bosc answer what you advise new MPs when it comes to private members' legislation?

[Philippe Dufresne]

When concerns have been raised—talking about the disclosure of the content of bills once the bill has been put on notice—there was some discussion about consultation in advance, the development of policy, and so on.

If you look at the precedent, as we stated at the outset, the reviews from this committee and from speakers looked at what type of information was disclosed, when it was disclosed, how detailed it was, how public it was, and once that occurred, what remedial steps were taken. Were apologies given? Were corrective measures put in place to prevent this recurring? Were directives given, and so on? The whole context is looked at.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

But there could very well be many precedents in which this never came to the attention, because there was never a question of privilege raised.

[Philippe Dufresne]

There may well be.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

I'm sharing my time with Mr. Graham.

[David Graham, Liberal, Laurentides—Labelle, QC]

I was just going to stress Mr. Schmale's point about conjecture. Another more recent example that I thought was quite interesting occurred when the federal government under Harper introduced the citizenship law, Bill C-24. This is a quote from an article on January 24, 2014:

The federal government will introduce several changes to Canada's citizenship rules after members of Parliament return to Ottawa next Monday following a six-week hiatus, says Citizenship and Immigration Minister Chris Alexander.

He goes on to give very specific examples for several pages in the article. I won't read the whole thing. I don't have that much time.

It's clearly the minister saying in advance of the bill what's going to be in it, very specifically, and nobody considered that a breach of privilege at the time. The Conservative caucus itself could have raised this if they thought it was such a big deal. They didn't.

I think there's an immense amount of precedent that says this is not a breach of privilege. That's the position I will stick with. I don't have any further comments.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

On a point of order, it sounded as though Mr. Graham was about to stop. He was quoting from a document. I was going to invite him to give it, as could Ms. Vandenbeld, to the clerk so that we could all look at those things. There shouldn't be a problem with that.

[David Graham, Liberal, Laurentides—Labelle, QC]

That's no problem.

To answer David Christopherson's point very quickly, he asked if I'm challenging the Speaker. No, the Speaker said this is a prima facie case of privilege. It looks like one. It's up to us to decide if there is one. In my opinion, it looked like one at first blush, but when I look at it closely, I don't see one. To answer your point, no, I'm not challenging the Speaker.

To Scott, I don't have a problem with that.

Thank you, Mr. Chair.

[The Chair, Liberal, Larry Bagnell]

Okay. We're going on to Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Sorry. I wouldn't have eaten into Mr. Graham's time if I'd known I was about to go next.

It seems we're moving into debate here. The rules seem to me to be quite clear in this matter, and this does constitute a breach of privilege. We can review the rules.

I think what is being asserted by the Liberals is that a convention has developed of saying that if the rules are violated in this way, it's just a pro forma violation. We can all live with it. We ought not to be objecting to it. Conventions do from time to time develop, both that something that is formally prohibited is in practice permitted and the reverse. Something that is formally permitted is beyond the pale of acceptable behaviour. That then becomes something that is prohibited and practised. We all get the point that if the Governor General started vetoing laws, which in theory he could do legally, we would start looking for a replacement Governor General because he would have gone beyond what is conventionally acceptable behaviour.

I think the Liberals are arguing that a convention has developed. I'm willing to accept that the Liberals have developed this kind of conventional point of view because they did not move questions of privilege when these items they've pointed to.... I think Mr. Graham's case is less convincing than Ms. Vandenbeld's, but that's why I've asked to see the articles, so I can see if the facts correspond with the assertions.

If they failed to move questions of privilege at that point, that suggests that they'd accepted a certain way of behaving, which they now seek to turn into a modus vivendi, a way of operating, all the time in the future. If we say this was okay, then we are saying that this will happen every time. This will become the standard of behaviour. The Liberal government will always be releasing select details—not all the details came out— of its legislation ahead of time. I accept the fact that they will not be doing this on budgets, as clearly there's a very strict rule that we all accept in that regard, but it looks to me as though they are trying to move in that direction.

Therefore I implore colleagues not to go in the direction of saying that this was okay and that this is somehow what the new standard should be. That is effectively saying that Parliament, the House of Commons, will be sidelined. This will be the status quo from now on. Indeed, that is the exact assertion that the Liberals are making right now, that the Liberals were advised to make. Your research bureau did good work and got you those points, but it was an unacceptable practice. If it ever happened in the past, it's unacceptable now. Our convention should be to say Parliament, the House of Commons, is where legislation is revealed.

Let's be clear about the leak that occurred with regard to Bill C-14. It was meant to turn the debate in a certain direction. It was meant to have the effect of causing opposition on the side saying the bill doesn't go far enough to gel rather than opposition on the side saying that the bill goes too far. It's a very clever and, I might say, a very successful communications strategy based on what's happened since that time. But it gutted Parliament's role in this process. It was unacceptable. It was wrong. There is no excuse for it happening. I come down on the side of saying the convention should be that we follow the letter of the rules and not that we deviate from them.

That's all I have to say. Thank you.

[The Chair, Liberal, Larry Bagnell]

Thank you.

Mr. Chan.

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

I want to follow up on Mr. Reid's comments. I thank him for suggesting that perhaps some of the past behaviour of the previous Conservative government was inappropriate, because that seems to be what he's suggesting. At least on the government side, we recognize that.

I'm going to get back to the point that Mr. Christopherson raised, which was with respect to the apology that had been put by the chief government whip, which was...if there is in fact a finding of privilege in this particular case. I think that's our responsibility and our role here today as a committee. It's to determine clearly, so that we have a clear precedent going forward, what the appropriate conduct is. What action should we or should we not take in terms of disclosure of material before the House, so that members have the first opportunity to consider contents of legislation that is before it at first blush, as opposed it being out there in the public more broadly?

That's why I get back to my original point, which is the possession of the bill, because it is the contents of the bill itself that require us, that give us the capacity as members, to determine whether something is in or not in the legislation. We have these media reports that clearly talk about these broad intentions or policy brushes, but it doesn't give us the substantive language of each of the particular elements that we need to consider as members of Parliament.

In fact, you could see all of us debating the issue as we were voting on the various substantive motions that were before the House yesterday, because we ultimately had the content of both the bill and the proposed amendments before us. Again, what I'm struggling with, frankly, is to understand the nature of the privilege. I get the broad brush of it, which is the intention that we get the material first, but in lieu of actually having the substantive bill before us.... Again, when I read the disclosure of the two media articles, there is no clear evidence that the reporters in question or the media sources in question actually had the bill. They may have had discussions, and then we have to decide whether those discussions or those disclosures constitute a breach of members' privileges. That, to me, is the distinction that I'm trying to deal with.

I welcome commentary, because I'm trying to understand. What is the nature of the breach? Did a breach take place and what is the evidence before us?

[The Chair, Liberal, Larry Bagnell]

Thank you.

Mr. Christopherson.

[David Christopherson, NDP, Hamilton Centre, ON]

Thanks.

I appreciate what Mr. Chan is saying. I get a sense the government sort of got.... Talking about privilege, this thing is borderline privilege with respect to being able to do your job, and I don't know why the government would want to put us on edge in matters of privilege. I can't imagine this is helpful to your cause. I leave it with you. I know it's aggravating the hell out of me.

I hear the point Mr. Chan is making. It sounds a bit like the government has two tracks going. One is if they can effectively kill this through some of the arguments that Mr. Reid effectively dissected. In the other case, we get Mr. Chan, who says, “You know, we're in your hands and we're ready to go the other way”. The story isn't about the government trying to kill it—it looks like they're trying to hit that sweet spot. I get it.

Mr. Chan made a very good point, as he usually does. If we look at our notes, though, we see the government in the past said that they reviewed all their procedures—and I think those procedures might have been reviewed by this committee—and they went back and improved those procedures and then published them in the government's response to the committee report.

Clearly, there is an ability to define and identify what information we're talking about. If the last government was prepared to acknowledge something had gone wrong, and they made changes, I don't need to take the argument too far to suggest that this government now has an obligation to also acknowledge that there is a process, that there is information.

I agree completely with Mr. Reid. Either we change the rules so that this is not considered a breach, or we really do something. When it's raised in the House as a breach we know the kind of attention it gets—a whole flurry of activity. It's a big deal inside the bubble, a very big deal.

When the Speaker says he sees a prima facie case, and that means that effectively it would take a motion to refer it to PROC, then the House is saying this is really important and they've dealt with it and it is going to PROC. If it comes to PROC and all PROC does is whimper away and wimp out on the deal and say that it's not a big deal, then what are we doing to our system of privilege? We're watering down our own rights.

Either those rights are there and they're identifiable and supportable and we're prepared to support them all the way through to taking action against those who violate them, or we're not.

If the government wants to suggest that we change the rules, if we follow Madam Vandenbeld's point that these things are fairly routine—and I'm not trying to put words in her mouth—then we ought to make a change. But to me, what we ought not do is go down the road that Mr. Reid said could happen. We make a big deal of it in the House, and we talk about privilege, and the Speaker gets in full flight and does his thing and it gets sent off, and then it comes here and it effectively withers away and dies. That's not helping any one of us.

Given that the last government recognized there were procedures and that they could improve those procedures, I would suggest that if this government hasn't bothered to do any kind of review, what they're doing is forcing us to do it. If we have to take the time to do it, we can. I suggest that one of the places to start is the previous protocol—or ask the government if they have a protocol. But I have to tell you, the government is not doing itself any favours treating this the way they did, especially given the new era that they are supposedly bringing us into.

Thanks.

[The Chair, Liberal, Larry Bagnell]

Okay, we'll open this up a little bit. Does anyone have any more questions for the clerks, so we can let them go?

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

I'm respectful of your time. I want to invite you, at the discretion of my fellow committee members, to stay to deal with the other matter that we are about to discuss—