Procedure and House Affairs Committee on May 31st, 2016

[The Chair, Liberal, Larry Bagnell]

Let's try to keep up our tradition of being mostly on time.

Good morning. This is meeting number 24 of the Standing Community on Procedure and House Affairs for the first session of the 42nd Parliament. This meeting is being held in public.

I want to informally welcome three people who know me from elementary and high school from 50 years ago. You can guess which ones they are.

[Voices]

Oh, oh!

[The Chair, Liberal, Larry Bagnell]

The other one, as you can probably guess, is a student. A lot of MPs are being shadowed today by students, and Maris is here. Welcome.

We welcome Marc Bosc, Acting Clerk and Philippe Dufresne, the Law Clerk and Parliamentary Counsel, and our visitors.

Just so the committee knows, our long-awaited family-friendly interim draft report will come out on Thursday afternoon. It's in translation.

In terms of our first item of business for this morning, for anyone who wasn't here at the time, we have already had the Clerk and the Law Clerk here to give their opening remarks on the question of privilege on Bill C-14, but they had just got through their opening remarks when we got called to a vote. They're back to do that question and answer round. In the second hour, we'll do the other question of privilege. More than likely, it's committee business. We'll do that in the second hour, as well as any other committee business people want to do.

Without further ado, I think we'll go to the first round. We'll start with Mr. Chan.

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

Thank you, Mr. Chair.

Again, I want to thank Mr. Bosc and Mr. Dufresne for appearing. Also, I apologize. I wasn't present when you made your opening statements, but I've had a chance to review the transcript of your statements.

Obviously, those of us on the government side take very seriously any matter that's referred to this committee with respect to members' privileges. In terms of my question, I didn't get a sense of this in your opening statement, Mr. Bosc, and I think it would be very helpful to me and to my colleagues on the committee, with respect to the nature of previous findings of premature disclosure of information before it has been tabled in the House, whether this requires there to be an actual proactive disclosure of the actual bill or simply merely the discussion of the contents of what may or may not be in a bill.

Again, I just wanted to understand, from your perspective, based upon historical precedent, any evidence that you can shed on this for us, which would help me understand whether in fact this is actually a breach of privilege or not.

[Marc Bosc, Acting Clerk, House of Commons]

If I could, I will start by referring you, Mr. Chan, and other members, to the document that was circulated some time ago by the committee staff, which highlights four different cases.

What I would say as well, before I get into it, is that each case is always a little different. There's no direct comparison possible easily, because each circumstance is different. The cases that have been found by the House to constitute privilege and were sent to committee include the ones from 2001, which I would say would be the most likely to be akin to the present case.

There are other cases you could consider. Again, they're in the documentation you have. There's one from 2010 involving a private members' business issue, and again in 2009 a government bill, although in that case there was no prima facie finding.

The key element for the committee to consider is whether the committee feels, given the evidence it gathers, whether the right of members to have first access to legislative information was respected. The idea there is for members to be able to perform their duties. The principle is that members ought to have first access to information about bills and that the membership as a whole as well ought to have that first access to that information.

Those are the broad outlines of the issues as I see them. I don't know if that goes where you wanted it to go.

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

I'm just struggling with this a bit, Mr. Bosc. I simply wanted to get a sense of this. If you take the March 2001 case, that was a very specific instance where the government actually engaged in the briefing of the media to the exclusion of other members from the opposition. I don't see that necessarily happening in this case.

What I'm also struggling with is this. When I look at the two specific media reports that we are dealing with, again, I don't have any clear evidence that the reporters in question or that the two media outlets in question were actually in possession of the contents of the bill before it had been disclosed to Parliament. Again, what I'm struggling with is the concept of physical possession of the actual document or a discussion about what may or may not be in a bill in advance of the tabling of the bill. I've seen plenty of instances in the past where various governments have been discussing bills that they're proposing to introduce into the House, where they talk about what may or may not be in a particular bill. I don't see that as necessarily being a breach of members' privileges in that particular instance. I could see it being very directly the case if a copy of the bill was in the possession of someone before it had been tabled in Parliament. That's what I'm struggling with. Within the examples that were provided in the paper I'm trying to get to the heart of that particular issue.

[Marc Bosc]

I understand your difficulty.

At the same time we really need to say at the outset that it is not for us to make that determination for the committee.

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

No, I agree.

[Marc Bosc]

It's really up to the committee, based on whatever evidence it gathers, to come to a conclusion one way or another. That's really what it comes down to. You could call witnesses. You could invite various people who might have information about how this information got out and so on.

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

Sure.

At the end of the day we're also very much governed by the practices of Westminster. Were there any examples in other historical instances of premature disclosure of information that would also be helpful to this committee in terms of giving us some guidance with respect to the situation that we're faced with today?

[Marc Bosc]

It may be. We could look at that, but I'm rather dubious that this would be the case.

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

Each one is quite unique.

[Marc Bosc]

Yes, but it's not only that. Every parliament has its own practices and usages, and they differ considerably on matters like this. Again, a direct comparison would be difficult, I would say. I can look at what we can find but I'm not hopeful, let's say.

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

Thank you.

I appreciate your comments so far.

[The Chair, Liberal, Larry Bagnell]

Thank you very much.

We'll go on to Mr. Richards.

[Blake Richards, Conservative, Banff—Airdrie, AB]

Thanks for being here today. I have a few questions.

On the first one, I'm getting the sense that there is some attempt here to claim that there were no details of the legislation actually put before the media prior to the bill being introduced. If you look at the articles, I think you can see clearly that a number of items from the bill were put forward. Of course, the articles themselves indicate such things as “according to a source familiar with legislation” or “according to a source who is not authorized to speak publicly about the bill”. Look at the CBC articles: “sources say that the Liberal cabinet” or “sources tell the CBC that...”. No one knows who those sources are, but at the end of the day that's sort of what our task is. It's to try to determine whether there has been a breach and by whom.

Also, when you look at the article itself, you see that it indicates a number of items. I could go through them here. I'll quickly pull a few quotes just to indicate this:

...a bill that will exclude those who only experience mental suffering, such as people with psychiatric conditions....

The bill also won't allow for advanced consent....

I could go on with that one.

It continues:

The government's bill is set to take a much narrower approach than recommended by a joint parliamentary committee....

It also says that the government's plan will put off the issue of those who suffer from psychological but not physical illness.

A number of items that certainly are contained in the bill were disclosed.

Then we see an article this morning, an iPolitics article, where the government House leader is asked about another piece of legislation that may be coming forward, and he says:

If I talk about potential legislation before it is introduced then we'll have a very irate question of privilege from the opposition that I'm talking about a bill before it's introduced.

Now, it's great that he recognizes this, but also, I think the tone of it is almost one that the government isn't really taking this very seriously, and that is a concern. I think it's something that the committee needs to deal with. I know it's not your place to give us advice on what we should or shouldn't do, necessarily, but it certainly is something that I think the committee here should deal with.

Therefore, a point needs to be made so the government understands that these are serious matters, that this has to be taken seriously, and that we won't see this kind of thing happen in the future. If the committee is looking to try to make that point, what are some of the options available to us in order to make that point so that it's clear and an example is made, if that's what the committee chooses to do?

[Philippe Dufresne, Law Clerk and Parliamentary Counsel]

Maybe what I can say is that in looking at the precedents, the previous decisions of the House, and the previous reports of this committee, as Mr. Bosc said, they looked at the extent of the information that was shared and the amount of detail, whether it was the content of the bill or information that was already publicly available, so that's part of your fact-finding.

But it also looked at and was influenced by the apologies that were given and any corrective measures that were put in place. In those previous decisions, those were commented on in the report of the committee or in decisions by the Speaker on prima facie. That's what I would say in terms of previous decisions.

[Blake Richards, Conservative, Banff—Airdrie, AB]

The committee currently has another question of privilege that has been sent our way. For me, at least, this is a new situation. I'm not sure if it's one that the committee has experienced before. I'm wondering if you can give us some advice on how we should best handle this.

Obviously we have this one, and we have the physical molestation one that we are all aware of, where the Prime Minister made physical contact with another member of Parliament, and that apparently prevented her from voting. How should the committee best handle having those two questions of privilege? Should those be dealt with chronologically? Should they be dealt with concurrently? What would be your advice on what would be appropriate for the committee to do in order to handle those two appropriately?

[Marc Bosc]

The committee has before it a number of items, I presume, on its agenda. It's dealing with a number of priorities, and it's entirely up to the committee how it wants to proceed. It's not for us to say what the committee should or shouldn't do.

[Blake Richards, Conservative, Banff—Airdrie, AB]

Okay. Is there any advice you have or any other examples that you're aware of in terms of points of order—whether they be in provinces or other Westminster parliaments—in regard to physical molestation of a member by another member, so that we can have some sense as to what that might be and that would guide us in terms of how we would deal with that question of privilege?

[Marc Bosc]

Again, Mr. Chairman, are we covering both cases here today or just the one? Are we going to be invited again?

[The Chair, Liberal, Larry Bagnell]

You've been invited to address Bill C-14 today if you want to address the.... I'll leave it up to you. I know you weren't prepared.

[Marc Bosc]

Essentially Mr. Chairman and Mr. Richards, the process the committee will follow in both cases is the same or likely to be the same. In other words, you gather information, you assess that information, and you make a recommendation based on what you find. It's not very different in one case or another.

[Blake Richards, Conservative, Banff—Airdrie, AB]

I noticed in some of the other examples that we had before us of previous cases like this, the premature disclosure of the contents of the bill, there seemed to be some differing opinions on whether the contents of the bill had been released. Sometimes it can be difficult to determine whether someone just had a lucky guess or whether contents of the bill were released.

In the absence of being able to determine that, is there any advice on how the committee would proceed? Obviously it would be important for the committee to try to make sure it's taken as a cautionary tale for any future government bills.

[Marc Bosc]

Again, as part of the documentation that the committee received earlier in its study, a number of avenues are outlined that are available to the committee, ranging from deciding not to proceed, finding that there has not been a contempt or a breach of privilege, all the way to the other end of finding that there is and recommending some form of discipline. All those options are available to the committee. But as Philippe indicated, in some cases the apologies or actions already taken in the House are deemed sufficient by the committee. That can happen as well. That's part of the range of things the committee can look at.