Procedure and House Affairs Committee on June 16th, 2016

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

I would be reluctant to stop him before he gets to the key points, which I feel are coming closer by the minute.

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

They are.

Chair, could you let me know when there are two minutes left?

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

Could we call a vote at that point?

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

That's true; at fifteen seconds or less, then.

Thank you to Mr. Richards. I actually didn't see you sneak in behind me.

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

I can be like that sometimes.

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

You're stealthy.

Where was I on this? Yes, the reporter identified someone in the know who had provided specifics to this bill. As we're going through this step by step, I think we can say they're referring to the source in both cases. I think it's clear, and I think maybe we all agree, that there are specific elements of the legislation in these articles, with very similar details. I think we've established that it proves these just weren't picked out of the air. I don't think you can have two articles.... Well, The National could have the same details, but they would have to quote their sources, which would at that point have been The Globe and Mail, “According to The Globe and Mail this, this, and that”.

To Mr. Reid's point, are there one or two sources of the leak? Maybe, but we don't know until we get on this. Was it a coordinated effort to leak this information and to frame the story as the government wanted? We don't know until we get this list.

Going back to privilege, and again why it's so important, I do stress that privilege came to be, and it was absolutely necessary for the House to function effectively and for the members to carry out their responsibilities.

The late eighteenth and nineteenth centuries also saw, for the first time, the systematic study of the history of privilege and contempt with the publication of several manuals on parliamentary procedures. The culmination of these efforts to understand and elucidate better the constitutional history of Parliament was achieved in 1946 with the publication of the 14th edition of May.

I cited that a little earlier.

This edition presented a thorough and elaborate examination of parliamentary privilege based on an exhaustive examination of the Journals and the principles of the law of Parliament. It also cited instances of misconduct of strangers or witnesses, disobedience to the rules or orders of the House or committees, attempts at intimidation or bribery and molestation of Members or other Officers of the House as cases that more properly involve a contempt of Parliament rather than an explicit breach of an established privilege. The British House of Commons now takes a more narrowly defined view of privilege than was formerly the case, with the emphasis being placed on parliamentary proceedings. The change became apparent in 1967 when the Select Committee on Parliamentary Privilege accepted the need for the radical reform of the law, practice, and procedure relating to privilege and especially contempt, agreeing that they required simplification and clarification and to be brought into harmony with contemporary thought. The Committee went further to express the conviction that the recognized rights and immunities of the House “will and must be enforced by the courts as part of the law of the land”.

Now I'm not saying this applies in this case, but I think the point about privilege is very much clear:

While the House took note of the Committee’s report, it was never adopted. In 1977, the Committee of Privileges re-examined the meaning of privilege and contempt, and the general thrust and conclusions of the 1967 report were reiterated in its report, later adopted by the House. The Committee recommended that the application of privilege be limited to cases of clear necessity in order to protect the House, its Members and its officers from being obstructed or interfered with in the performance of their functions.

Now, Chair, to do our duty, as I've stated a couple of times already, and to do our duty properly, as members of Parliament, to leak a bill, in this case a very important bill, but to leak any bill before parliamentarians have had a chance to take a look at it and examine it blocks us from effectively carrying out our responsibilities as members of this place.

If we all have the heads-up that one or two sources of the leak find it okay to go on their own, maybe with direction from their team captain, and we do not investigate, which is what I think the other side is implying, that we just call it a day and shut down, then that is not letting us do our job. Without mechanisms in place to either stop it from happening, or to find the source of the leak, this could actually prevent us from doing our job. Could this happen again? Quite possibly it could, because there doesn't seem to be a consequence. Again, it's rewarding the child's bad behaviour.

This will say why it's important here:

Privilege in the Pre-Confederation British North American Colonies From the establishment in 1758 of the first legislative assembly in Nova Scotia, the common law accorded the necessary powers to the legislature and its Members to perform their legislative work. “Members had freedom of speech in debate and the right of regulating and ordering their proceedings, and were protected from being arrested in connection with civil cases, because the legislature had first call on their services and attendance.” As to the power of an Assembly in the colonies to punish and more especially imprison for contempt, the situation was not at all clear. In effect, the rights enjoyed by the Assemblies in the pre-Confederation period were quite limited. However, as early as 1758, the House of Assembly of Nova Scotia had an individual arrested and briefly confined because of threats made against a Member of the Assembly. In Upper and Lower Canada, the Constitutional Act, 1791, adopted by the British Parliament, was silent on the privileges of the Legislatures, although by 1801 the Speaker of the Legislative Assembly in Upper Canada claimed “by the name of the Assembly, the freedom of speech and generally all the like privileges and liberties as are enjoyed by the Commons of Great Britain our Mother Country”. ...the Assembly of Upper Canada proceeded to fight for and assert many of the same privileges, such as freedom from arrest while sitting and freedom from jury duty, claimed by the British Commons. The Assembly also claimed the power to send for and question witnesses and to punish any individual who refused to appear or answer questions, using its power of imprisonment to ensure obedience of its orders. Although challenged on occasion, the Assembly was successful in enforcing its privileges.... In the period prior to responsible government, the Assembly in Upper Canada guarded its reputation by punishing libels against it in the newspapers and also fought for the right to initiate money bills, that is, bills for appropriations and taxation. In general, the Assembly of Upper Canada was satisfied that it could discharge its functions with the privileges it had. In the same period, the Assembly of Lower Canada also asserted both individual and corporate privileges—freedom from arrest and freedom from the obligation to appear in court with respect to civil suits brought against Members, and the right of the Assembly to punish for contempt, no matter the offender. The Assembly was not afraid to put forward its claims of privilege against the Crown. In 1820, it blocked the conduct of business at the opening of a new Parliament because of a dispute over the return of election writs and again in 1835 over comments made by the Governor about the privileges of the Assembly. With the Union Act, 1840 which created the Province of Canada out of Upper and Lower Canada, and especially following the achievement of responsible government, issues of privilege were less frequent or serious. This can be attributed to the fact that responsible government acknowledged the supremacy of the Assembly.

Chair, it's right there.

[The Chair, Liberal, Larry Bagnell]

That's very interesting.

Mr. Schmale, given that we all have a copy of that book—I know you're reading it into the record and it's 1,471 pages long—maybe you might just refer to the pages you want us to read into the minutes.

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

Mr. Chair, I might respond to that.

I think there is some legitimacy to it. I think I might object if he were to try to read the whole book, but I assume he's not going to do that. If, in order to build the point, he needs to have that in front of him, I think asking people to read it later would make it difficult to make the point he's trying to make.

[The Chair, Liberal, Larry Bagnell]

Okay.

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

I would argue that maybe it would be appropriate to let him continue.

[The Chair, Liberal, Larry Bagnell]

Okay.

Mr. Schmale.

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

Thank you, Mr. Richards.

As was mentioned, Chair, that's why I tried to tie this in. I appreciate what you're saying, and I will not read this whole book. When you talk about privilege, it's in place for a reason, as I pointed out. It's there to allow us to do our jobs as members. Without these rules, we find ourselves in an interesting situation, because how many times can this happen, or how many times will we allow it to happen, before we take it more seriously than we're taking it right now? We want to continue with this investigation. There are others who don't. What does this say to those who possibly might want to foster their relationship with certain reporters, with the media? It says that the privilege I was mentioning doesn't mean much, because the investigation is going to be short and sweet, and probably not get to the meat of it, which is about who had access. Question those people, and try to find out who did it.

Chair, with any investigation, which may slow it down from happening again, if the people who have access to the legislation knew that should a leak happen again in the future they would most likely be called before this committee, would they be more likely or less likely to do this type of activity again? I would say, probably not.

Although we are a friendly bunch, being called before a parliamentary committee and asked to face questions on whether or not they were the source of a possible leak probably isn't that much fun, and probably quite uncomfortable. It probably causes loss of sleep and probably causes a whole bunch of stress they don't need.

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

Would that be different from the loss of sleep you had with the cat meowing last night?

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

Then the mind starts running. Your mind starts running when you're up. It's hard to get back to sleep.

If you were the source of the leak and you knew that you were going to be called before the committee—because we will find out who has the access—I don't think you'd want to do this again. However, rewarding bad behaviour.... If you were the source of the leak and you knew the investigation wasn't going to go very far and you knew that there was a very good chance you were not going to be called before the committee to answer questions about this leak and the actions you may have taken, why wouldn't you do it again?

If privilege is so important, and I think we all agree it is, and if we all don't want it to happen again, how is ending this investigation going to solve anything? It will solve nothing. You might as well take this book and say, well, it only works in certain times, in certain circumstances.

It's like the rules of hockey. As a referee, you don't get to choose the rules. You're there to enforce them. You may not agree with certain rules, but that's not your job.

We have a job. There are rules. Our job is to get to the bottom of this. Our job is to make sure the rules are enforced. To basically give up goes against everything. How many times can this happen or will this happen until we stand up and say enough is enough; at what point? Some could argue, and I would actually say that this bill is probably the most important, as I said before, but how many times do we say, “It's okay, that bill doesn't have much magnitude”? Do we just start leaking legislation to the media beforehand? That's what will happen. That's what will happen because we are not clamping down on it, because we are not taking these steps to find out why.

I can't remember who said it last time, maybe Mr. Richards or Mr. Reid. We might not get to the cause of the source, but to put some fear into that person I think is one way to make sure they think twice about doing this again.

Again, Chair, I'll mention this, and I know you don't want me to read the whole thing, and I understand why. Here we go. This is from chapter 3, at page 85:

By far, most...cases of privilege raised in the House relate to matters of contempt challenging the perceived authority and dignity of Parliament and its Members. Other cases have involved charges made by the Member about another Member or media allegations concerning [other] Members. The premature disclosure of committee reports and proceedings has frequently been raised as a matter of privilege as has the provision of deliberately misleading information to the House by a Minister and the provision of misleading testimony by a witness before...committee. Finally, the denial of access of members to the Parliamentary Precinct.....

That obviously doesn't have relevance here.

I think this goes to show, Chair, that we take parliamentary privilege very seriously. Do we, though? If we don't pursue this, do we actually take it seriously? Do we just say, “We had one witness; that's good enough”? As Mr. Reid pointed out, we have one source for sure, because that was the first one, in The Globe and Mail article. Do we have a possible second source?

If yes, were they working together on a way to get the message out before the legislation was tabled in the House in order to shape the discussion the way the government wanted it? If you're looking at it as that serious, which I believe it is, why shut it down? Why not let us go and continue to ask these questions?

As I pointed out, Mr. Chair, when I read those names, I believe I said there were 57 in the Prime Minister's office. With the Minister of Health, I can't remember exactly. There were 20-odd people who obviously cared, but not all of them are going to have access to this legislation. The ones who would have an advantage to leak this information would have access, and that's who we want to talk to. That's why it's so important that we see that list. If we're talking about the openness and the transparency of the government, and how they're going to do things differently, okay. I wasn't here in the last Parliament, but okay, let's say we're going to do things differently. How is shutting down this investigation going to prove that we are open and transparent?

There's a quote here in the Ottawa Citizen mentioning that the opposition has been unable to offer any evidence that there was premature disclosure. I sincerely disagree with that. I think we're laying out our case bit by bit here on how important parliamentary privilege is, why it's so important, why journalists strive for accuracy and fairness, why they keep their promises, why they are accountable, and why members of Parliament need to have these rules in place in order to do their jobs properly.

If we're not taking it any further, then why would we go? We need to have these rules in place for a reason. There's a reason why. I'll quickly quote here:

The manner in which questions of privilege were raised following Confederation was vastly different from today’s procedure. Dozens of cases between 1867 and 1913 followed the same, simple course. A Member would rise, explain the matter of privilege and conclude with a motion calling on the House to take some action—usually that someone be called to the Bar or that the matter be referred to the Standing Committee on Privileges and Elections for study and report. At that point, without any intervention on the part of the Speaker, debate would begin on the motion, amendments might be moved and, finally, the House would come to a decision on the matter. The House would then take whatever further action was required by the motion. Perhaps because of the immediate recognition given to Members rising on “questions of privilege”, it was also common throughout this time for Members to take the floor ostensibly to raise such a question, but in fact to make personal explanations. Members used the claim of a breach of privilege as a ready means to be recognized by the Speaker and to gain the floor in order to state a complaint or grievance of whatever kind. Here, too, they met with little interference from Chair Occupants.

That's good. Thank you.

From 1913 to 1958, while the number of “questions of privilege” blossomed for such purposes as the recognition of school groups in the gallery, congratulatory messages, complaints, grievances and a plethora of procedural matters, in addition to the continued “personal explanations”, the number of legitimate matters of privilege dealt with by the House declined dramatically with only three being referred to the Standing Committee on Privileges and Elections and one to a special committee.

Let's look at my point. How do you stop this from happening again? We have direction from the Speaker to look at this.

I think everyone wants to make sure this doesn't happen again, and I'm sure that when the members opposite, or possibly over on this side.... I don't think they would appreciate its happening. I know we don't, so let's start looking at ways by which we can stop this from happening again in the future, so that we are not dealing with it over and over again.

We're also looking at committee time, Chair. How many times could this be referred to us, so that we just keep dealing with it and dealing with it? Otherwise, we would just say, “What's the point of the rules? It doesn't matter; they're not going to be enforced. Nobody is going to be called on it.” Then what happens? That's probably a very extreme case, but these rules are here for a very good reason.

[The Chair, Liberal, Larry Bagnell]

On a point of order, I'll hear Mr. Reid.

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

Is it acceptable for me to make an inquiry to the member vis-à-vis one of the points he made, or would that be out of order?

[The Chair, Liberal, Larry Bagnell]

That's fine.

I'd just like Mr. Schmale to know that he has only left half an hour for his two colleagues to speak.

However, Mr. Reid, go ahead and ask Mr. Schmale a question.

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

I wanted to go back to one of the items he raised. After he made the point, I was interested enough to go over and pick up the article. This is from Kady O'Malley's live blog. She had quoted from a statement from the Prime Minister's Office that was provided to the Ottawa Citizen, which contains the following wording, and this is the justification not merely from the members here, but we know this is from the PMO—the same PMO that would almost certainly be the source of authorization for any leak, so that makes the wording particularly interesting. It says:

Since the opposition has been unable to offer any evidence that there even was a premature disclosure of the bill during six different committee meetings, the government members on the committee have decided to oppose any motion that randomly calls anyone as a part of their fishing expedition....

Leaving aside the unnecessarily snarky wording in that.... I myself have managed to never snark even once in 16 years in the House of Commons, as everybody knows.

At any rate, I just wanted to ask this. Is it reasonable to assume that the opposition can provide evidence, when the Liberals and the PCO are the ones who have the evidence and they're withholding that evidence by refusing to allow this motion to go forward? Isn't this a perverse situation, in which they're saying, “We have evidence that could settle this matter. You haven't provided it, because we're refusing to provide it to you; therefore, we want to shut down the hearings in which you have failed to produce the evidence that we actually have in our back pocket?”

Does that seem as odd to you, Mr. Schmale, as it does to me?

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

Mr. Reid, that's exactly correct. That's what I'm getting to with this. I appreciate that I'm convincing you on this.

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

You're starting to.

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

You're absolutely right; they have the evidence. We would like to see it in order to complete our investigation or continue it or move forward. If we don't see this evidence, then....

They're actually admitting to having this evidence. We know they are. The justice minister said they did, and the list is pointing us in that direction. You don't have to go very far, then, to look at the minister's own words, in which she basically said that the people who had it were the “need to know”. She also laid out here:

...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....

We're being very well led in a direction, and I think she wants to see this come to an end, and possibly see a culprit found, or as we mentioned, see measures put in place to reduce the chance of this happening again, or not happening again.

Let's face it, if we do nothing, this will definitely happen again. If we put mechanisms in place to prevent its happening again, I think that's a good thing. I think everyone wants to see that.

The minister—and I can read the names because I didn't do the justice department—said all her departmental officials who worked on this draft legislation, as well as her exempt staff, had the valid security and the clearance at appropriate levels. That's a fairly narrow line. We're not talking about hundreds. To get this list, to say that there are hundreds upon hundreds of people we can call in here, well, that's not true. It's a very narrow list of people we can call in on this.

I don't think this investigation is going to take forever, but it will take forever if the opposition feels that we are not being allowed to carry out our parliamentary functions on this committee and we report back to the House that one witness was good enough, although she gave us information pointing us in a direction, and they claim they have the evidence or the information we need to allow us to continue our investigation, but we'll just shut it down and end it.

Does that not seem a bit odd to anyone else here, that we would just put the blinders on and say, “Yes, we're good”?

We're getting there. We're getting to the end here. We want to take the next step. I know that we on this side want to take the next step. The Minister of Justice pointed us in this direction. By just saying, yes, we're good....

Again, she said here, and I quote, that she has “spoken with [her] deputy minister”. She can assure that the “department follows all necessary precautions”, and she can assure us “that no breach of information nor evidence of such a breach was reported”. Therefore, here we go again, “no internal inquiry was initiated”.

That, Chair, brings me to my hockey referee analogy.

Of course you're going to say no, if I just ask in passing. I don't know whether everyone was called into the office and put on the hot seat, but of course you're going to say no.

I actually believe the justice minister when she says she has no idea or that she was not the source of the leak. I believe that. I actually quite respect her for coming to this committee and talking to us about what her thoughts were on this situation.

Here it is again, Chair, and this is again saying why we need to continue and why we need that list. She said:

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

She also goes on to say, as per the Privy Council 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, she can't comment on other departments or agencies, but that goes back to Mr. Reid's point that they have the evidence. They have a list that will point us in the right direction. We know that journalists have principles, a guideline for ethical journalism, and they follow that. Both articles, within a day of each other, cited sources, both to the CBC and to The Globe and Mail, with very specific details of the legislation that you would have to have in order to speak with some confidence and some accuracy.

Let's get that list. The Minister of Justice pointed us in that direction. Again, Mr. Chair, it wasn't us making this up. She pointed: here you go; this is the direction you have to follow in order to continue your investigation.

It makes me question why we're shutting this down. Do we wait until this happens again? Does it become the Wild West? What happens here? You're having articles showing statement of fact, and as Mr. Reid correctly pointed out, if we have a second source, that's a big problem too, because now we have additional people speaking out of turn.

That's a pretty soft reason for doing it, if they didn't take direction from their team captain. Who knows whether that's the case? Again we can't find this out. Did they do it on their own to further their own careers? Did they do it to further their relationships with journalists? Did they do it because they had direction from above giving them instruction to form the story that they wanted?

Putting that all together, how are we not continuing? I ask the question, how do we not continue with this? I'll point out this and then I'll go on to my next tangent here.

There were two cases, one in 1993 and one in 2005. The Supreme Court of Canada established the legal and constitutional framework for considering matters of parliamentary privilege.

Since parliamentary privileges are rooted in the Constitution, courts may determine the existence and scope of a claimed privilege. However, recognizing that a finding of the existence of a privilege provides immunity from judicial oversight, the courts may not look at the exercise of any privilege or at any matter that falls within privilege. Once the courts have determined the existence and scope of the privilege, their role ceases. Matters that fall within parliamentary privilege are for the House alone to decide.

We know it's not a legal matter. We know it's for us to decide. One witness? That is probably not a pretty thorough investigation.

Are we welcoming this to happen again?

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

I have a point of order, Mr. Chair.

Would it be permissible if I could just briefly ask a question of Mr. Schmale with regard to something he's referring to right now?

[The Chair, Liberal, Larry Bagnell]

I have no problem with that.

Mr. Schmale, just so you know, you only have 15 minutes left for your two colleagues who are on the list to speak, but I'll let Mr. Richards ask you a question related to something you just said.

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

I might say, Mr. Chair, as anxious as I am to speak, I do understand what Mr. Schmale is saying. I do have a lot of points I want to make as well. There are a lot of important facts in here. I've found it illuminating, and I'm sure that many of the other committee members have as well.

Certainly, I don't hold any ill will for his using the time he needs to make his arguments. Don't feel as though it's necessary to caution him on that. I do understand and appreciate.

[The Chair, Liberal, Larry Bagnell]

I appreciate your sensitivity.