Procedure and House Affairs Committee on Sept. 29th, 2016

[The Chair, Liberal, Larry Bagnell]

Good morning, this is meeting number 31 of the Standing Committee on Procedure and House Affairs for the first session of the 42nd Parliament. This meeting is being held in public. If we want to pick up where we left off, before the summer adjournment on June 16 at meeting 29, we were debating a motion moved by Blake Richards as well as the amendment by Jamie Schmale. He had lots to say on this amendment.

That, in relation to its study on the question of privilege related to the matter of the premature disclosure of the contents of Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) and pursuant to the Handling and Safeguarding of Classified and Protected Information and Assets guidelines, and the requirement to maintain a distribution list of all SECRET information, the Standing Committee on Procedure and House Affairs request that the Government provide a full distribution list of all persons who had access to any copies of the legislation on Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) prior to its introduction, to the Committee no later than June 21st, 2016.

Then the amendment to the motion reads, “That the motion be amended by deleting the words 'no later than June 21, 2016'.”

No decision had been made at the time we adjourned, so I'll pass it over to Mr. Richards to start.

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

Thank you, Mr. Chair, I appreciate that.

My understanding is we're having a debate on the amendment to delete the “no later than”. Correct?

[The Chair, Liberal, Larry Bagnell]

Yes, if you want.

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

I think given the indications we had in June from the government members that they planned to kill this and not try to be accountable or transparent in regard to the leak of the Bill C-14 contents, what I will do is make some of my points in relation to the motion as well as the amendment because I'm concerned that they will just simply choose to vote down the amendment and therefore kill the motion.

What I want to do, Mr. Chair, is to start with a little bit of a review of parliamentary privilege itself.

[The Chair, Liberal, Larry Bagnell]

Just before you go on, I apologize, but I would just draw to people's attention, in case they didn't open their emails, to the fact that Mr. Reid had asked for some research on what happens in the other parliaments like ours, Australia, England, and New Zealand. The Library of Parliament sent a memo out to all of you yesterday that explains, or lack thereof, provisions in those parliaments for that. I wanted everyone to know that.

Sorry to interrupt. Go ahead.

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

No problem. I appreciate that.

I will just set some context on it. This is from the briefing we received and I just want to read a couple of small short passages from it. I don't intend to be as lengthy as Mr. Schmale was by any means, in fact nowhere near as lengthy in terms of my remarks, but I think the quality will be nearly there anyway.

It indicates:

Canada's Parliament and its members possess rights, immunities and privileges, collectively referred to as parliamentary privilege, which have been claimed over centuries of parliamentary tradition. These exist to assure the institution and its members have the necessary independence to perform their constitutional functions without outside interference.

[The Chair, Liberal, Larry Bagnell]

Please tell us what you're reading from.

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

It's one of the briefing notes that we received. I'm not absolutely certain if it was from our analyst here or if it was the law clerk briefing.

[The Chair, Liberal, Larry Bagnell]

Okay, carry on.

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

If that clarification is needed, I'm sure I can get that for you.

Further, from that same briefing document, in regard to making a ruling in general on parliamentary privilege, it states:

In making a ruling on the matter, it is the Speaker's role to determine whether or not a prima facie case of privilege exists;

It goes on:

The Speaker “is limited to deciding whether the matter is of such a character as to entitle the member who has raised the question to move a motion which will have priority over the Orders of the Day. If the Speaker finds that a prima facie case of privilege exists, he or she will invite the member to move the appropriate motion, which is usually to refer the matter to the Procedure and House Affairs Committee.

The motion of course is debatable.

That's what has happened in this case.

In a moment, I will lay out some of the wording that was used by both the mover and the Speaker in making the ruling, because I think that's important context for this.

You'll note that one of the things that was key in here is that when the Speaker has made the ruling of a prima facie case, this indicates that it warrants further inquiry. In my mind, as parliamentarians, those responsible for dealing with such a matter here at this committee, it's important for us to ensure that we are doing our full due diligence, making sure we've done that further inquiry to the degree necessary to have done our job appropriately.

I'll move down just a little further in the same briefing note as well with an example about similar situations. It states:

In similar situations in the past where the Committee has received an order of reference in relation to the premature disclosure of a bill, the Committee has heard from the Member who raised the question of privilege and the minister sponsoring the bill.

Among others. And depending on the nature of the matter, the committee may also decide to invite additional individuals to give evidence.

Of course, we did hear from the minister who was sponsoring the bill when she was here, and I'll get to this in a moment. She very clearly indicated to us that there were others who had access to the bill, that there were others who had some responsibility in relation to the bill. It seemed quite clear to I think a number of the members of the committee, certainly to myself, that there was a necessity to call additional individuals to give evidence. We have some motions of course that will come before us today, I hope, Mr. Chair, that look specifically at that. The motion that we have in front of us now would help us to indicate who else might potentially need to appear or give us some sense at least to the numbers of those who had access.

In terms of this briefing note that I have here—as I've mentioned, I have a number of them, but this one looks like it was prepared by the Office of the Law Clerk, I believe, back in April, and it gives a bit of a chronology of the ruling on this particular point—I'm just going to read very brief passages from it, Mr. Chair.

On April 14, 2016, Bill C-14 was introduced in the House and given first reading.

Later that sitting, Mr. Andrew Scheer, the then House Leader of the Official Opposition rose on a question of privilege regarding the alleged premature disclosure of the contents of Bill C-14.

In his intervention, Mr. Scheer stated that the details about Bill C-14 found in The Globe and Mail article went beyond “journalistic speculation,” and that the details indeed matched the content of the bill.

On April 19, 2016, the Speaker ruled that the question raised by Mr. Scheer constituted a prima facie, or “at first sight”, question of privilege.

It continues, “(In his ruling, the Speaker told members that the House occupies a pre-eminent role in the legislative process”, which is a key point, “and it was contrary to well-established practice to allow precise legislative information to be distributed to the public before being made accessible to Members.”

In making his decision, the Speaker referred to past precedent, in particular, to a Speaker's ruling of 19 March, 2001, in which the Speaker had ruled that once notice had been given for a public bill, confidentiality about its contents must be maintained until the bill was introduced in the House. The Speaker therefore ruled that the premature disclosure of the contents of Bill C-14 impeded the ability of all members to perform their parliamentary functions.)

That's a serious matter when we're looking at that here, Mr. Chair.

A little further down in this same note, and this discusses his ruling again:

...once a bill has been placed on notice, confidentiality about its contents was necessary because of “the pre-eminent role which the House plays and must play in the legislative affairs of the nation.”

Again, this sets out a very, very important point.

The Speaker further told the House:

To deny to members information concerning business that is about to come before the House, while at the same time providing such information to media that will likely be questioning members about that business, is a situation that the Chair cannot condone.

Having referred that to us to make sure we do our full study, investigation, and due diligence of it, when the Chair indicates he cannot condone such an action, and for the government to simply say that they heard from the justice minister, we have all of these questions left hanging here, and they'll just sweep it under the carpet, to me does not sound like taking it as seriously as the Speaker did.

I want to refer to the words of the chief government whip as well, when he acknowledged that there was a problem that existed here in his remarks immediately upon the matter being raised in the House. He said, “...our government takes any breach of the privilege of members and of the House very seriously.” He also committed at that time to ensuring that it would not happen again.

Now, those words are fine, Mr. Chair, but it seems to me as though that's part of a pattern we've seen from this Liberal government. It has been one of words and not actions. This just seems to fit very well with that theme. It's unfortunate that this theme exists, and I would certainly hope that maybe some of the government members today will choose to change that course of action from this government, so that the words might start to match the actions.

When you say a government takes this seriously and will commit to ensuring it doesn't happen again, but then chooses to sweep under the rug concerns that are there, opportunities that are there to try to get to the bottom of a situation, to try and ensure that this won't happen again.... Again, the chief government whip indicated that he was committing that they would ensure it would not happen again. Well, if you don't actually get to the bottom of what happened and try to determine ways to ensure it won't happen again, those sound like hollow, hollow words.

I want to refer again to a Speaker Milliken ruling on a similar matter:

As honourable members know, one of my most important responsibilities as Speaker is to safeguard the rights and privileges of members, individually and collectively. Central to the matter before us today is the fact that, due to its pre-eminent role in the legislative process, the House cannot allow precise legislative information to be distributed to others before it has been made accessible to all members. Previous Speakers have regularly upheld not only this fundamental right, but also expectation, of the House.

Again, a clear ruling, a clear statement.

When we talk about this, again I'll refer to a point that was made relating to the March of 2001 ruling as well, that:

The convention of the confidentiality of bills on notice is necessary, not only so that members themselves may be well informed, but also because of the pre-eminent rule which the House plays and must play in the legislative affairs of the nation.

Again, that's another clear statement on this.

I guess where this leads me to is really quite a concern that you have a government saying that it takes this seriously and they want to make sure it doesn't happen again. We've had the justice minister come before us and certainly indicate, and I'll use some words from her testimony here before the committee.

She was asked on couple of occasions who else may have had access, who else maybe we should be hearing from, and who might be the source of the leak, because she made it very clear that there had been some work to determine this and she felt that she was confident in saying that the source of the leak had not come from anyone in her office. While we appreciate that she came before us and indicated that, when questioned by both Mr. Reid and myself, she made it quite clear:

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.

She went on to indicate also that there were drafts of memorandums to cabinet containing the specific policy recommendations, etc., which were shared with central agencies. She mentioned other departments and agencies, again, where they sought out feedback, and then also in relation to a question that I had asked of her as well where I indicated that based on her statements I felt that if she was indicating that her office hadn't been the source of the leak then it would seem like it must have occurred likely from either the PMO or the health minister's office. Her comments to that were:

Given the references in terms of the departments that were involved in the development of this legislation, there's a substantial number of people who were involved. Given the magnitude and the transformative nature of this legislation, of course the Prime Minister's office saw the legislation...

I think it would be fairly clear from all of this that if this committee is going to take seriously its obligations to take seriously its role, its job, to ensure that we are making sure that the Speaker's ruling is respected, making sure that the words of the chief government whip are not just hollow words but actually mean something and there's actually action behind them, it would be the job of this committee to ensure that we've reviewed and had an opportunity to have on record the testimony of the Minister of Health, have on record officials from the Prime Minister's Office. As I had indicated to the government members last time when they were seeming to resist the idea of calling staff members from the Prime Minister's Office, although in the motions that will follow we do seek to call some of the senior staff, if the members of the government are still insisting that they feel that calling senior members of the Prime Minister's Office is inappropriate, then the only other person that we could simply call would be the Prime Minister himself. I'm certainly open to that if it would make the government members more comfortable, but at the end of the day somebody needs to come, just as the justice minister, did from the Minister of Health and from the Prime Minister's Office to indicate what steps were taken there to ensure that this doesn't happen again.

Again, the chief government whip said that they will ensure“ that this does not happen again”.

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

How do you do that?

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

I'm sorry, but based on some of its previous actions it's pretty hard to take this government at its word—we'll just make sure it doesn't happen again—without having some indication that there was something done to look into whether they were the source of the leak in those offices, as was done in the Minister of Justice's office, to ensure that they were doing something to make sure it's not happening again. If that has actually happened and that has taken place, I don't understand why government members would be so afraid of letting those people come here and tell us what has been done, what steps have been taken, and tell us and tell the Canadian public what they were doing to make sure something so serious does not happen again.

I would certainly hope that there will be a change in tune, that there will be an openness to being open, and accountable, and transparent on the part of the government members here today.

I'll just remind members one last time of something, Mr. Chair, and I think then we can move on and hopefully come to a positive resolution on this. But I'll just remind members one more time before I do yield the floor. When this was raised in the House of Commons, the chief government whip indicated, “Our government will work to ensure that this does not happen again”. All we're simply doing is giving the government an opportunity to indicate what it is doing and what it has done to ensure that this doesn't happen again. To be able to hear from who has had access to the contents of the bill would be a first step in that.

Of course, there are other motions on which we need to hear from some of the specific people who were mentioned by the Minister of Justice. I would certainly think that knowing that they had access to the bill at their departments—that the Prime Minister's Office and the Minister of Health had this access—I would assume the government members wouldn't want to leave the clouds hanging over the head of the Prime Minister and his office; they wouldn't want to leave the clouds hanging over the Minister of Health.

The Minister of Justice was able to come here and indicate what she had done to take steps to ensure that the leak wasn't from her office, to take steps to ensure it wouldn't happen again, and we appreciated that. Why would we not want to afford the same opportunity to the Minister of Health or the Prime Minister's Office? The only thing I can imagine—and I would certainly hope this isn't the case—would be that there's something to hide. That would be the conclusion that any reasonable person would draw if they're not called to come here and have the same opportunity that was given to the Minister of Justice. Certainly I would think that government members would want to ensure that they clear up those clouds that hang over the heads of the Minister of Health and that hang over the Prime Minister and his office. So I would certainly hope that we will see a change of action and a change of tune.

I know that the government has made in the past—and I'm sure it will make again today—all kinds of justifications such as, some of the things that were in these media reports were items that were not specifically in the bill. That was one of the justifications. Certainly, Mr. Chair, I think that being able to talk about what specifically isn't in the bill would imply that someone has the information about what is in the bill. So that's not a credible argument that's being made on that part.

I know certainly there were also some arguments made by some of the government members that the information that was printed wasn't exactly the same as what was in there. But it was along the very themes of the bill, and key themes of the bill. To have that knowledge of the key themes of the bill would indicate that someone has given some information that wasn't available to all members of Parliament, which obviously—as has been ruled by the Speaker—would be a breach of the members' parliamentary privilege.

I certainly hope that these government members today will decide to enable their government to be open and accessible, and accountable and transparent, and give those officials—the Minister of Health, the Prime Minister and his office—the opportunity to clear up those clouds hanging over their heads. If they don't do that, this will be a permanent stain on their government.

I certainly hope that they are going to change their tune today and choose to vote in favour of these motions, so we can continue the investigation. Nobody here wants to do anything other than to ensure that these kinds of breaches do not happen again. I would hope that government members would join with us as the opposition in trying to make sure that those rights and privileges of all members are respected and that those clouds hanging over the heads of the Minister of Health and the Prime Minister are cleared up.

[The Chair, Liberal, Larry Bagnell]

Thank you, Mr. Richards.

Mr. Chan.

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

I want to thank Mr. Richards for his contribution to the debate. I would simply put, just for the benefit of everyone who is present, the government's response, again simply because we haven't visited this matter since last June.

To be honest, from what I'd heard from the official opposition, I haven't actually seen any new evidence that would make me change, at least in my case, my particular position with respect to the matter that's before this committee, that is, the question of whether, in fact, the actual contents of Bill C-14 were prematurely disclosed in terms of the actual substantive bill itself being in the public before it appeared before Parliament.

I would agree that it is problematic that someone would discuss the broad parameters of legislation in advance of its being tabled in the House. But, again, the distinction in what makes it a matter of privilege is that the actual bill itself is in the possession of someone prior to it being tabled in the House. To date, there still remains absolutely no evidence before this committee that that actually took place. That is the distinguishing point from previous cases of privilege where it was established that there was in fact a breach of members' privileges. That is the distinction that exists in this particular case. We simply do not have the evidence before us that the bill was, in fact, in the hands of this reporter from The Globe and Mail before it was tabled in the House. We have a media report that there was a conversation. But that is all.

To me there is a fundamental distinction between that conversation and the actual substantive bill itself being in the possession of the reporter. On that basis, I still remain of the position that this is not a matter that constitutes a breach of privilege, and that has been the position of the government. Again, I point out that there is no specific reference in the media reports of the specific contents of the bill being quoted. Again, it's high-level information that was reported. As I said, I don't think that is a proper practice, but it does not mean that it is a breach of privilege. It remains my position that until the bill was actually tabled before the House, there was in fact no breach of members' privileges.

If my friend has something or some other evidence that he could table to suggest that was not the case, then we would be prepared to look at it, but from my perspective right now, that is not the case. And so, from my perspective, it simply remains to be nothing more than an attempt to go fishing. That's my view.

I think we are prepared, if my friend is prepared to do so, to allow his six motions to come before this committee now for a vote.

[The Chair, Liberal, Larry Bagnell]

Is there any further debate on the amendment to Blake's motion?

I call the question on the amendment.

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

Can we call for a recorded vote?

[The Chair, Liberal, Larry Bagnell]

A recorded vote on the amendment.

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

Just for my clarification, can you just read in what the original motion is and what the amendment is?

[The Chair, Liberal, Larry Bagnell]

I read the original motion. It's very long. But the amendment was just to change the date because it originally expired on June 21st.

The amendment reads:

That the motion be amended by deleting the words “no later than June 21, 2016”.

(Amendment agreed to: yeas 9; nays 0)

Now we'll go to the motion.

Is there any further discussion on the motion?

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

Can we do a recorded vote?

[The Chair, Liberal, Larry Bagnell]

Sorry, I forgot to welcome Mr. Sopuck and Mr. Sarai to the committee. This is a very great committee. We're delighted to have you two with us today.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

I'm enjoying it today. It's riveting.

[The Chair, Liberal, Larry Bagnell]

We'll have a recorded vote.

(Motion as amended negatived: nays 5; yeas 4)

[The Chair, Liberal, Larry Bagnell]

Can we go to the next motion that's outstanding?

Mr. Richards.

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

Mr. Chair, just for the information of members, I intend to move the motions in exact reverse order to how you have them in front of you. The back page will be the first one I'll move, then we'll move forward from there.

I will move the first motion:

That the Procedure and House Affairs committee invite the Minister of Health to appear to answer all questions related to its study on the question of privilege related to “the matter of the premature disclosure of the contents of Bill C-14 (An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)”.

I'll just speak very briefly to it.

I think it's quite clear that the intentions of the government members are to sweep this under the rug. That is very unfortunate. I heard the arguments of Mr. Chan just now, and I will just remind members, once again, the job of this committee is to try to get to the bottom of this, to try to ensure, as per the words of the government whip, that this doesn't happen again.

If these were the arguments the government wanted to make, then they should have made those arguments prior to the Minister of Justice appearing. They seemed to be okay with that. What this would indicate to me is that they don't take this very seriously, and there may be something to hide. That would be a reasonable conclusion for someone to draw, that there may be something to hide.

The Minister of Justice was here to clear up the clouds that would hang over her and her department. I would certainly hope that the members of the government would want to give the Minister of Health and others who may have had access to this bill—who were specifically referenced by the Minister of Justice when she came before this committee, including the Minister of Health—the opportunity to clear up those same questions.

I'll leave it at that. I certainly hope the government chooses to be open, and accountable, and transparent here.