Procedure and House Affairs Committee on June 16th, 2016

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

I'm taking notes.

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

On what?

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

He's ready for it.

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

Might I do a brief question here?

[The Chair, Liberal, Larry Bagnell]

Go ahead.

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

It's one of the things you mentioned earlier on. Just before it moves on to different themes, I wanted to dwell upon it.

He quoted verbatim from The Globe and Mail article and also from the CBC coverage. Although the content overlaps very closely, the wording of it suggests to me the possibility that these might actually be two separate leaks.

It seems unlikely that someone would have said to Laura Stone and to whomever the person at CBC was, “Could you get together in one room so that we can do a conference call?” The CBC does not quote The Globe and Mail and say that it was their source, nor the reverse. This suggests to me that there were probably two leaks going on here. Up to this point, we've treated this as if it were a single leak. There may be a single leaker, don't get me wrong, but there is a possibility that these are two distinct contempts, if you will, grouped for convenience as a single contempt. I wonder if Mr. Schmale could comment a little bit on what strikes him in this regard.

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

Yes, that's actually a very good point. It goes back to my previous comment about how journalists try to make inroads in government departments, especially with a new government. As communications staff you're trying to build relationships, and if you want to fast-track a relationship, this is a possible way to do it to build trust, especially given the magnitude of this bill and how many people it affects.

You could see departments possibly not knowing what others are doing and what conversations are happening, and different people having these conversations. You're absolutely right. The CBC did not quote The Globe and Mail. Do we, then, have two sources? Do we have one who seems to enjoy the limelight by talking to journalists when they're not supposed to about legislation that has yet to be tabled?

That's why it's so important that we get this list. The justice minister pointed us in that direction. It was the minister herself pointing us in that direction.

Let's continue the conversation, then. Let's consult. Let's find the people who may possibly have had access to the legislation. We may see something that we're not seeing now.

I say to Mr. Reid's saying that there could possibly be two sources, you're absolutely right. That is a bigger issue, when you now have two people talking about legislation that has yet to be tabled in the House before legislators have a chance to look at it.

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

With your permission, Mr. Chair...?

[The Chair, Liberal, Larry Bagnell]

Yes, go ahead.

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

If I may say so, that does imply coordination. In fact, there is no logical scenario I can imagine whereby, if you have more than one person doing the leaking, there wasn't coordination, which frankly points more in the direction of a deliberate strategy from some political actor, some elected official who is ultimately in a decision-making position here. It just strains credulity to imagine two people, simultaneously and independently, leaking to the media with identical selections of facts.

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

I agree, because as we mentioned, if you want to frame the debate on an issue of this magnitude, how do you do it? They did it quite well, in my opinion. The problem is that they gave very significant details about a bill that had yet to be tabled in the House of Commons, which is why we're discussing this issue and hopefully getting some consensus on this motion.

[The Chair, Liberal, Larry Bagnell]

Do we have any more questions for the witness?

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

Is there any more consulting I can do? I have lots of information to hopefully convince everyone here.

I'm going to speak about privileges and immunities from the House of Commons Procedure and Practice, the second edition, of 2009. It goes to what we're talking about here.

The rights accorded to the House and its Members to allow them to perform their parliamentary functions unimpeded are referred to as privileges or immunities. In modern parlance, the term “privilege” usually conveys the idea of a “privileged class”, with a person or group granted special rights or immunities beyond the common advantages of others. Parliamentary privilege refers, however, to the rights and immunities that are deemed necessary for the House of Commons, as an institution, and its Members, as representatives of the electorate, to fulfill their functions. It also refers to the powers possessed by the House to protect itself, its Members, and its procedures from undue interference, so that it can effectively carry out its principal functions which are to legislate...and hold the government to account. In that sense, parliamentary privilege can be viewed as the independence Parliament and its Members need to function unimpeded.

Here we are, then. Apparently we all saw the article, so are we “unimpeded”? We got a preview of what was in the legislation before it was tabled; that was handy. Are we, then, unimpeded? Well, no, I don't think so. We're seeing clearly that we were given details before it was even tabled in the House.

Privilege has long been an important element of our tradition of government. The practices and precedents of the House of Commons of Canada regarding parliamentary privilege stretch far back into colonial times. At an early stage, the young assemblies of the colonies, modelling themselves on Westminster, claimed the privileges of the British House, though without statutory authority. At Confederation, the privileges of the British House were made applicable to the Canadian Parliament in the Constitution Act, 1867, and for many years the Canadian House continued to look to the experience of the British House for guidance in matters of parliamentary privilege.

Again, in the article, showing language of statement of fact clearly identifying in its language that “sources tell the CBC the legislation will not...”, we're seeing that privilege was violated here, Chair. We're seeing through the justice minister's testimony, her own words, that she gave us this direction, and Mr. Richards asked very clearly, how else we would carry on this investigation. It was her giving us ideas on how to pursue this, because I believe she took it very seriously. I honestly believe that and I thank her for her testimony. I thank her for appearing before this committee. I think it was very important that she did so. I think it was very important that she came out and talked to us and rather cleared the record, because I think she did. I appreciated her assistance in guiding us along as we do our jobs as members of this committee.

For those of you who may need a bit more definition of what privilege is and why it's so important, the definition of parliamentary privilege is found in Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament:

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively...and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.

O'Brien and Bosc then go on to say:

Those “peculiar rights” can be divided into two categories: those extended to Members individually, and those extended to the House collectively. Each category can be further divided. The rights and immunities accorded to Members individually are generally categorized under the following headings: freedom of speech; freedom from arrest in civil actions; and exemption from jury duty;

There are quite a few more, and I'm happy to comment on those as well.

We'll go back here, “Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively…and by Members of each House individually, without which they could not discharge their functions”.

Here we have an article telling us very specific details of what will not be in a bill that has huge magnitude across this country. Why is it that the reporters got the briefing? That goes back to what Mr. Reid was saying about whether it is one leak, one source. Is it two sources? Possibly. If it's two sources that's an even bigger issue we should be investigating. It would be nice to get to the bottom of this, because if you allow this to happen...it's almost like a child. You don't reward bad behaviour, so if we stop, are we rewarding bad behaviour? Are we getting to the end of this? Just saying, no, means the staffer might be thinking, “Wow, I got away with that. Okay, this bill seems pretty important, the press is itching for any details they can get, so what's the harm? They clearly will not get any further. It will go to maybe one witness, and then they will shut it down and say they did their job and it won't get any further.”

How is that actually correcting the problem? You're rewarding bad behaviour by saying, that's good enough, even though the justice minister gave us direction, gave us an avenue to pursue, gave us idea on where to go.

I can talk a bit about historical privilege and how this applies to us here. This, again, is from the House of Commons Procedure and Practice, second edition, from 2009.

Parliamentary privileges were first claimed centuries ago when the English House of Commons was struggling to establish a distinct role for itself within Parliament. In the earliest days, Parliament functioned more as a court than as a legislature, and the initial claims to some of these privileges were originally made in this context. These privileges were found to be necessary to protect the House and its Members, not from the people, but from the power and interference of the King and the House of Lords. Over time, as the House of Commons gained stature and power as a deliberative assembly, these privileges were established as part of the common law of the land. The House of Commons in Canada has not had to challenge the Crown, its executive, or the Upper House in the same manner as the British House of Commons.

That, of course, makes sense.

The privileges of the British House of Commons were formally made applicable to the Canadian Parliament at the time of Confederation by the Constitution Act, 1867, and were articulated in a statute now known as the Parliament of Canada Act. Nonetheless, these privileges enjoyed by the House and its Members are of the utmost importance; they are in fact vital to the proper functioning of Parliament. This is as true now as it was centuries ago when the English House of Commons first fought to secure these privileges and rights.

Chair, this is as true now as it was centuries ago and for a very good reason, as I just pointed out.

There are two articles, very close in detail, one source, possibly two. They're very clearly saying, we have a source. They are statements of fact. I just find it inconceivable that we continue to say, “Good enough, brush this under the rug, and we're fine.”

This weekend I'm going back to my riding and I'm going to attend a bunch of events. Some people may know this is happening. Some people may not, but I think you could ask anybody in any workplace what they would do if a confidential document were leaked. Would they just give up on the investigation? Would they keep going until they possibly found the source? Would they keep investigating? Maybe they find the source or maybe they don't. If they don't, do they put mechanisms in place to prevent this from happening again?

I don't think anyone would say, “Let's give up after one witness.” I can't see anybody saying that's good enough. That goes back to rewarding bad behaviour. If we just say, “Yes, we're good enough”, I think that sets a very bad precedent.

We look at the mandate of PROC. We look at all of the different cabinet committees. There are 57. We did a bit of research. I want to thank my staff for doing a bit of research and helping me out.

The justice minister led us to believe that she and her staff were not responsible for the leak. Now we go on to who possibly had access. According to the justice minister, both the PMO and the health minister and staff had access.

Let's look at the health minister's staff. We're just going to make up a list and see if that works. I apologize for those whose names I get terribly wrong: Danielle Boyle, the executive assistant to the chief of staff; Robert Brown, the senior project officer; Peter Cleary, director of parliamentary affairs; David Clements, director of communications; Jordan Crosby, parliamentary secretary's assistant; Cindy Dawson, scheduling assistant to the minister; Adam Exton, special assistant, parliamentary affairs; Geneviève Hinse, chief of staff; Jesse Kancir, policy adviser; Mark Livingstone, special assistant for the Atlantic region; Janet MacDonald, the CFIA departmental liaison; Andrew MacKendrick, the press secretary—I think that's a pretty important one—Kathryn Nowers, the policy adviser; Caroline Pitfield, the director of policy; Jennifer Saxe, the House of Commons departmental liaison; Mark Thompson, the driver—probably I would say no on that one—and Lydia Turpin, the receptionist.

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

I concur on that.

I think if we ever get the distribution list, I feel confident that Mr. Thompson will not be on that distribution list. That's a bit of a guess, but I feel confident.

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

I would probably concur with that, Mr. Reid.

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

Yes.

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

There are 57 PMO staff. There are 17 staff of the Minister of Health, and that doesn't include any officials that could have access as well.

Let's go over the PMO staff, because there are 57 of them. We don't know what cabinet committees the legislation went to. That's why it's so important to get this list, because there are a lot of cabinet committees and a lot of people who had access to this bill. Let's go through the Prime Minister's staff. We did the Minister of Health's.

We have Gerald Butts, the principal secretary, who is the executive assistant to the Prime Minister. Geoff Hall is the scheduler to the Prime Minister. Probably not the photographer, but I'm going to guess, Daniel Arnold, the director of research and advertising. Roland Paris is the senior adviser to the Prime Minister, but that was on defence, so I'm guessing he wouldn't. The director of operations probably did not. I'm guessing here, possibly the regional desk, because they would be responsible for distribution once it was tabled. We have Lindsay Hunter of the Ontario regional desk. Jamie Kippen is another regional desk for Ontario. Cyndi Jenkins is from the Atlantic region. Jessie Chahal is from the Prairies and northern regional desk. Brittney Kerr is from the British Columbia desk, and Marie-Laurence Lapointe is from the Quebec regional desk. Terry Guillon, the lead media advance, most likely did have access. Probably not the writers of the correspondence, or the members of the deputation, but we don't know. We're just doing some speculation right now.

The Prime Minister's press secretary would probably be one that I'd be interested in hearing from, because I would guess that person would be on the list. The executive assistant to the director of communications would definitely be on it, as well as the lead of media relations and the communications officer. There are two communications officers. The chief of staff, Katie Telford, would probably be one we'd like to have a chat with, definitely. We're going through these names, but without that list, how do we keep going? Why would we reward bad behaviour in not continuing? It's clear and important for this committee to acquire who had access, as well as question other government ministers and senior PMO staff.

Chair, should we not give the same opportunity to the ministers and staff to clear themselves and their staff of any potential accountability for that leak? You go back to hockey, and I'll do another analogy. I know my predecessor liked to use hockey analogies a lot. I know that Mr. Reid does appreciate them sometimes. On any team, whether it's hockey, baseball, or football, the captains are the leaders. The captains speak for their teams. The team members take their lead from the captains. Most of the time you don't run a play based on, “Well, I think this is the right idea. The quarterback said we're going to run this play, but I think it's better if we run this play and not tell anyone”. I'm thinking, and this is speculation on my part, they wanted to frame a story in a certain way with the huge magnitude of this bill, so they said, “Let's start the conversation a couple of days early. Let's get the ball rolling, and let's start forming the conversation as we'd like it”.

That's why it's important to speak to the captains, or the leads, the department heads, and find out where their range of thinking is and where they might direct us.

Without this list we are just giving up and not even continuing in our mandate to carry out this investigation as directed by the Speaker. Without continuing, we don't even know what mechanisms we could send to the House for possible implementation so that this doesn't happen again, or recommendations to the various departments on how they might be able to prevent this from happening again.

Let's see the list, let's talk to those people, and let's have them give us the opportunity to clear them. Maybe they'd like to clear themselves instead of having this cloud hanging over them.

We go back to the Canadian Association of Journalists who have a duty to report the truth. I think it's clear, based on the wording, that they had very good sources to do that.

We'll give some background, and this goes on to why we have to do this. We have to continue this investigation because privilege is something we hold dear in this place.

As to privilege—and this is where it came from in Canada—centuries ago the British House of Commons began its struggle to win its basic rights and immunities from the king. The earliest cases go back to the 14th and 15th centuries when several members and Speakers were imprisoned by the king, who took offence to their conduct in Parliament, despite the claims of the House that these arrests were contrary to its liberties.

In the Tudor and the early Stuart periods, though Parliament was sometimes unable to resist the stronger will of the sovereign, the conviction continued to be expressed that Parliament, including the House of Commons, was entitled to certain rights. The elected Speaker of the House of Commons in 1523, Sir Thomas More, was among the first Speakers to petition the king to seek the recognition of certain privileges for the House. By the end of the 16th century, the Speakers' petition to the king had become a fixed practice.

Despite these early petitions of the Speaker, the king was not above the informing the Commons that their privileges, particularly freedom of speech, owed their existence by his sufferance. James I did this in 1621.

In protest, the Commons countered, “every Member of the House of Commons hath and of right ought to have freedom of speech…and…like freedom from all impeachment, imprisonment and molestation (other than by censure of the House itself) for or concerning any speaking, reasoning or declaring of any matter or matters touching the Parliament or parliament business”.

In rebuke, James I ordered that the Journals of the House be sent to him. He tore out the offending page of protest and then dissolved Parliament

Nor was privilege able to prevent the detention or arrest of members at the order of the crown. On several occasions in the early 17th century, members were imprisoned without trial while the House was not sitting or after the dissolution of Parliament.

In 1626, Charles I arrested two members of the House while it was in session, and in 1629 judgments were rendered against several members for this action. These outrages by the crown were denounced after the civil war, and in 1667 both Houses agreed that the judgment against the arrested members had been illegal and contrary to the privileges of Parliament.

In 1689, the implementation of the Bill of Rights confirmed once and for all the basic privilege of Parliament, including freedom of speech. Article 9 states, “freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

Here we go. We're tying this in. This is from O'Brien and Bosc:

Free speech in the House was now finally established and protected from interference either from the Crown or the courts. In the late seventeenth century and the first half of the eighteenth century, some claims of the House as to what constituted privilege went too far. The privilege of freedom from arrest in civil matters was sometimes applied not only to Members themselves, but also to their servants. In addition, Members sought to extend their privilege from hindrance or molestation to their property, claiming a breach of privilege in instances of trespassing and poaching. Such practices were eventually curtailed by statute because they clearly had become a serious obstruction to the ordinary course of justice. Thus, privilege came to be recognized as only that which was absolutely necessary for the House to function effectively and for the Members to carry out their responsibilities as Members.

Mr. Chair, right there, privilege was recognized as “absolutely necessary for the House to function effectively and for the Members to carry out their responsibilities”.

Here we go again: a bill of huge magnitude, affecting pretty much every Canadian, released in significant detail, and saying what is not going to be in the bill. That provides evidence to the fact that the source had quite a bit of knowledge as to what was in this bill.

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

Mr. Chair, I have a point of order.

[The Chair, Liberal, Larry Bagnell]

Sorry, we have a point of order.

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

I just want to make sure.... I think I am next on the speaker's list, if I am not mistaken. Is that correct?

[The Chair, Liberal, Larry Bagnell]

Are you getting antsy that you are not going to have any time?

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

Yes. I understand Mr. Schmale has a lot to say that is important, and I want him to have that opportunity. Actually, I needed to use the washroom, Mr. Chair, and I wanted to make sure he still had more to say, because I didn't want to miss my opportunity if he was done while I was out of the room for a moment.

[The Chair, Liberal, Larry Bagnell]

Mr. Schmale, do you have a significant amount?

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

I could probably keep going.

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

I just wanted to be sure that I wouldn't miss my opportunity.