Procedure and House Affairs Committee on June 9th, 2016

[The Chair, Liberal, Larry Bagnell]

We're in public, so the media knows the cameras have to leave. It is televised, though, so you'll have access to it.

Mr. Reid.

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

Why don't we just wait until the actual appointed beginning time? I just thought it was a good idea to gavel to get the media out of here, but let's give the minister and Mr. Christopherson the time they need.

[The Chair, Liberal, Larry Bagnell]

I'm going to read the mechanics so it's out of the way.

Good afternoon. We are in the 27th meeting of the Standing Committee on Procedure and House Affairs for the first session of the 42nd Parliament. This part of the meeting is televised.

We are resuming our study of the question of privilege related to the premature disclosure of the contents of Bill C-14.

Mr. Reid had asked a question of the researcher on similar types of cases in New Zealand, the U.K., and Australia. The quick answers, unless you want to hear them from the researcher, are that Australia hasn't answered yet, and New Zealand and the U.K. do not have similar provisions. It's totally different. He's going to send you a briefing note with the details of that, if that's okay.

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

Thank you. That's very helpful.

[The Chair, Liberal, Larry Bagnell]

I want to be exemplary in starting on time, which is not yet. It's in two minutes.

We have a couple of special guests coming, so I'll just say who they are now so it doesn't take up committee time. Two of our colleagues who retired in 2011 are sort of icons of Parliament.

Derek Lee will be here. He wrote a book, The Power of Parliamentary Houses to Send for Persons, Records and Papers. That's kind of interesting. He was almost the dean of the House. Except for Mr. Plamondon, he would have been the dean of the House when he left. He's also, I think, the only member of Parliament in history who sat on a committee for 20 years straight, the scrutiny of regulations committee. He has lots of background, there.

Also here is Paul Szabo. If you remember, he spoke more times in Parliament than any other member for the years he was here.

There are very interesting former members here in the audience today.

I would like to welcome our witness, the Honourable Jody Wilson-Raybould, the Minister of Justice and Attorney General of Canada.

Thank you very much for coming. I know all ministries are very busy, so we really appreciate this.

Without further ado, I invite the minister to make her opening statement of 10 minutes, and then we'll proceed to questioning.

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

Thank you to all honourable members here for the opportunity to appear before committee to address the alleged breach of privilege with respect to Bill C-14, a matter that I take incredibly seriously.

First, I'd like to speak to various measures and policies that are followed by my department and my exempt staff to protect legislation prior to its introduction. I want to be very clear that none of my staff nor any of my officials were involved in any alleged leaks in this matter. Second, I want to highlight that the drafting of legislation spanned several departments and agencies. Third, I'll turn briefly to the article in question.

To begin, I can assure my honourable colleagues that my department and my exempt staff take the safeguarding of information regarding the contents of all bills intended for introduction very seriously, and they adhere to all relevant policies and procedures.

My departmental officials, through my deputy minister, are instructed to follow all precautions as outlined in “A Drafter's Guide to Cabinet Documents” and the policy on security of cabinet confidences, both of which can be found on the Privy Council Office website. According to the PCO policy on security of cabinet confidences, draft bills, with the exception of versions used for public consultation, upon agreement of cabinet, are deemed confidence of the Queen's Privy Council. These documents must be marked, handled, and safeguarded accordingly. Documents may only be handled by those with valid security clearance at the appropriate level, and a valid need to know the information to perform their duties. Restricted access to cabinet confidences extends to all stages of drafting.

The following individuals are considered to have a need to know status: employees who are responsible for developing policy and for developing proposals for the minister; ministerial and departmental personnel supporting a minister on a particular policy proposal or issue that is the subject of cabinet discussion; central agency employees who help advance policies and proposals brought forward by departments of sponsoring minister; and legal advisers providing advice relating to a policy proposal or issue that is the subject of a cabinet discussion.

As per PCO policy, these individuals are required to use appropriate means, including IT systems, to prepare, store, and transmit cabinet confidences; mark cabinet confidence information at the appropriate level of sensitivity, and with the caption “Confidence of the Queen's Privy Council” on every page of the document; handle such information in restricted access areas; use security equipment and procedures approved for the level of sensitivity of the information to transport, transmit, store, and dispose of cabinet confidences on paper or in electronic format; ensure that the information is not discussed with, viewed, or overheard by unauthorized individuals; and refrain from discussing such information on cellular telephones or wireless devices, unless approved security means are used.

All my departmental officials who worked on this draft legislation, as well as all of my exempt staff, had valid security clearance at appropriate levels.

As a general practice, any security incident involving cabinet confidences, however slight, must be immediately reported to the responsible departmental security officer. This would include unauthorized disclosures, loss, theft, transmission, and discussion over non-secure channels, unaccounted documents, and other actual or suspected compromises. The departmental security officer, in turn, must immediately report the incident to the PCO security operations division. Unless directed otherwise by PCO, the departmental security officer is expected to conduct an initial administrative inquiry to determine what happened and to identify corrective action.

Generally, an inquiry would include an examination of the circumstances surrounding the incident; if possible, the source of the unauthorized disclosure; the adequacy of the departmental procedures for the protection of sensitive information; an assessment of injury to the national interest arising from the compromise; and an outline of corrective measures that have been or will be put in place to minimize the risk of similar occurrences in the future.

The Clerk of the Privy Council and Secretary to the Cabinet, after consultation with the appropriate department heads, may involve the RCMP. The RCMP will then determine if there is sufficient grounds to investigate. Where appropriate, department heads are responsible for applying sanctions.

Let me be clear. I have spoken with my deputy minister and I can assure you that my department follows all necessary precautions. In this particular matter, I can assure you that no breach of information nor evidence of such a breach was reported from departmental staff, and therefore, no internal inquiry was initiated.

Further, I can personally assure you that I spoke to all of my exempt staff about this matter, and none of them were involved in any breach of information. I believe and trust my departmental officials and my staff, and I take them at their word.

Second, honourable colleagues, it's worth remembering that this sensitive piece of legislation was not crafted by the Department of Justice alone. My department worked closely and collaboratively with officials in other departments, and my exempt staff worked with their counterparts in other offices.

Further, as per PCO guidelines, drafts of memorandums to cabinet containing specific policy recommendations were shared with central agencies and other departments and agencies to solicit feedback and to address any potential concerns from various policy perspectives. As the Minister of Justice, I certainly cannot speak on behalf of other departments or agencies.

Third, I want to briefly address the article in question. As you know, on April 12, 2016, public notice was given for the introduction of Bill C-14 in two day's time. Like my honourable colleagues, I was dismayed to learn that the article was published in The Globe and Mail that same day and made reference to specific aspects of the bill, mainly what would not be included in the legislation, and to a source familiar with the legislation who was not authorized to publicly speak about the bill.

Let me be clear. I did not know the identity of the source at that time, nor do I know it sitting here today.

What I can offer, honourable colleagues, is that the few details about the bill in this article are not entirely accurate, and this inconsistency between the bill and the article may be relevant to your investigation.

Specifically, the article begins by stating that the bill will exclude those who only experience mental suffering, such as people with psychiatric conditions. While it is the case that those who suffer from mental illness alone may not be likely in practical terms to qualify for medical assistance in dying, pursuant to the eligibility criteria set out in Bill C-14 as it was originally drafted and tabled in the House, the proposed legislation in no way categorically excludes such individuals. It is possible, although unlikely, that someone who only experiences mental suffering could meet all of the eligibility criteria, and therefore be able to obtain medical assistance in dying under the proposed scheme.

It is also worth noting that the article mostly speaks to what will not be in Bill C-14 and does not disclose major elements of the bill. For example, it does not address items like the eligibility criteria, the safeguards, and the monitoring regime proposed in the legislation.

Finally, I would highlight that I'm quoted toward the end of the article referring to various principles that our government sought to balance with this legislation, but of course, refusing to go into any detail about its contents.

In conclusion, honourable colleagues, let me assure you that my department, my staff, and I take this issue incredibly seriously. All matters of privilege implicate the foundational principles of our constitutional democracy, and so I commend you on the work you are doing, and I am happy to participate and take questions.

Thank you, Mr. Chair.

[The Chair, Liberal, Larry Bagnell]

Thank you very much, Minister.

We'll go to the first round of questioning. Mr. Graham, you have seven minutes.

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

Thank you, Chair. I may be sharing my time with Ms. Sahota.

Thank you, Minister. Our study here is based on a finding of a prima facie case of breach of privilege by the Speaker, which, as we all know, refers to...at first glance, at first appearance, that there may have been a breach here.

You mentioned in your opening remarks that the article that is the basis of this motion contains inaccuracies about the bill. It did not obviously contain the bill itself. The title of our study refers to the premature disclosure of the contents in Bill C-14 on a prima facie basis.

In your view, Minister, were the contents of Bill C-14, in fact, prematurely disclosed?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Thank you for the question, and again, thank you for the study that you're undertaking.

As I said in my remarks, there were some aspects in the article that was written on the 12th that reflected some of the excluded parts of Bill C-14, those being mature minors, advance directives or requests, and persons suffering from mental illness alone. What the article reflected mostly was what was not included in the legislation. As I commented, the specific provisions in terms of eligibility, safeguards, and monitoring weren't mentioned in the article.

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

So the bill itself was not really disclosed, as far as you can tell.

In your study, you also mentioned the department security officers. Now, this is something I'm not familiar with. I've never been in such a department. Can you tell us a bit more about who they are and when you'd talk to them and about what, and what their powers are in terms of department security officers?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Certainly.

We have within the Department of Justice security officers who, upon my coming into this position, and certainly with my exempt staff and departmental staff, have gone through the necessary security measures in all different forms in terms of documents of a secure nature that have different levels of categorization and the requirements to ensure that those are kept protected and secret. They go through procedures in terms of where those documents can be read, how those documents should be carried, and the responsibilities that one has in terms of the security clearance that they have. They make it very clear to me and the exempt staff, as well as departmental officials in terms of what the responsibilities are upon receiving a specific level of security clearance.

In this case, as I said in my remarks when the article was brought to my attention, and certainly when it was made public in the House of Commons, I immediately acted and asked my staff and advised my deputy to do the same with the public servants to ask and ensure that we were not the source of any breach and that we followed and complied with the strict instructions that were provided by security departmental officials.

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

Thank you.

[Ruby Sahota, Liberal, Brampton North, ON]

Minister, thank you so much for making yourself available and being here before this committee today.

I'd like to talk a bit more about the psychiatric condition that you were referring to that was mentioned in The Globe and Mail article. Correct me if I'm wrong, but you stated that they didn't really get it right, that the description that was in the article was in fact not an element of the bill. Could you get into that more specifically?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Certainly. Thank you for the question.

The article that we're talking about said that the bill will exclude those who only experience mental suffering, such as people with psychiatric conditions, and this was according to that source familiar with the legislation.

I'm pleased to speak about Bill C-14 and the eligibility criteria that we have put into the legislation. The eligibility criteria does not necessarily exclude people suffering from mental illness or psychiatric conditions, but it contains a number of criteria that need to be met and circumstances in terms of the individual patient's situation and health concerns that need to be read in a comprehensive way. A person who has medical conditions, including a psychiatric condition or a mental illness, is not precluded from qualifying to meet the eligibility criteria in medical assistance in dying. A person who's suffering from a mental illness or a psychiatric condition alone would have more difficulty in qualifying. The reality in what we've done in the legislation is to look through amendments, and otherwise that we ensure that we study mental illness and we learn the risks and the benefits with respect to that, and that study in the proposed legislation has a commencement timeline of six months.

[Ruby Sahota, Liberal, Brampton North, ON]

Would the people who worked on writing this piece of legislation within your department and the various other departments have been familiar with that element of the bill? Would it be accurate to say that somebody who has worked on this legislation that was privy to this confidential material would be properly able to explain...that source would have the proper information, if it was in fact somebody from within the department?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

The Department of Justice, as I mentioned, does not develop legislation in isolation. There are many other departments and agencies that would have been involved in some fashion and had some access to the documents, to the draft legislation, because of the need and the reality of different departments contributing toward its development and the public policy framework around it.

People have varying degrees of access to it and differing levels of investment of time, in terms of its development. However, everyone who had access to the draft legislation or the development documents for the legislation would have had, and did have, the appropriate security clearances, and understood the necessities around ensuring that those security clearances and the responsibilities that go with them were followed.

[The Chair, Liberal, Larry Bagnell]

Thank you, Minister.

Now we will go to Mr. Reid for a seven-minute round.

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

Thank you, Mr. Chair.

Thank you, Minister, for being here in what is probably the busiest month, possibly one of the busiest weeks, of your life. We appreciate it.

I want to start by dealing with two things.

The first is what the Speaker said in his ruling when he sent this to us. He was talking about the difference between this issue and that of a former case where a private member's bill was released before its time, and whether a privilege issue is there. He said that, at that time, with the private member's bill, “no doubt existed as to the provenance of the leak”. Thereby, he directed us to the fundamental issue here, which is establishing the provenance of this leak.

Now let me read from The Globe and Mail. It says:

The Liberal government is set to introduce its much-anticipated physician-assisted-dying law on Thursday, a bill that will exclude those who only experience mental suffering, such as people with psychiatric conditions, according to a source familiar with the legislation. The bill also won’t allow for advance consent, a request to end one’s life in the future, for those suffering with debilitating conditions such as dementia. In addition, there will be no exceptions for “mature minors” who have not yet reached 18 but wish to end their own lives. Those three issues, however, will be alluded to in the legislation for further study, according to the source, who is not authorized to speak publicly about the bill.

You made two assertions. One is that only negative information is included. That is not strictly true. That these issues “will be alluded to in the legislation for further study” is positive information about what is in the bill. You also say that the leak is incorrect in some of its information. I have to say that, with regard to the issue of incorrectness, this could well be a result of the journalist, Laura Stone, making a transcription error in an interview, so it may not actually be the source who was incorrect.

Additionally, with regard to only negative information being included, first of all, it is not, strictly speaking, a true statement. Second, I would submit to you that disclosure of what is not in a bill actually implies a greater comprehension of the complete content of the bill than merely being able to point to individual pictures that are in the bill, which could have resulted from somebody who was familiar only with a part of that legislation. It would suggest that, if the government is sincere in its search for the provenance, the source of the leak, it ought to be looking at someone who is familiar with the entire text of the bill.

Let me ask you this question. I apologize for being so direct, but I am sure you will appreciate why I need to do this. Are you the source of the leak?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I appreciate the question, because it gives me the opportunity to be crystal clear. I do not know the source of the leak. I did not know, when the article came out, where the leak came from. It was of tremendous concern to me that somebody had information about a fundamental piece of legislation that I was going to be introducing. Today, as I sit here, I do not have any idea of the source of the leak.

I am confident, however, that my—

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

I want to be very clear. I gave you that question so that you could make that clear. I appreciate that.

You mentioned there were other departments involved. The ones that come to my mind—and I'm asking you if I have the whole list here—are the Department of Justice, obviously, the Department of Health, the Prime Minister's Office, and the Privy Council Office. Would there be additional departments, or is that the complete list of where the leak could have come from?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I'll answer the question, but I'm not inferring in my answer that I have any idea where the leak came from.

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

It wasn't meant to draw that inference.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

In developing the legislation, certainly the Department of Justice was involved and engaged with many other departments and agencies. You're correct in saying that those included Health Canada. Certainly, on such a transformative piece of legislation, the Prime Minister's Office was aware of the contents of the legislation.

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

Are you aware if the other departments have engaged in a similar sort of process to the one you described in confirming where the leak could have come from? In other words, has there been an investigation in any of the departments to your knowledge? Perhaps you don't know that, but I will just ask that question.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I can speak with confidence on behalf of my department. There is no evidence of a breach with respect to my department. I'm confident that the breach did not occur within my department. I can't speak on behalf of any other department.