Justice Committee on Nov. 23rd, 2009

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I do not. I did not have time to translate it. It will have to be translated overnight or first thing in the morning.

[The Chair, Conservative, Ed Fast]

Okay.

Is there any discussion? Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

First and foremost, I'm afraid that if the motion has been read, I inadvertently didn't hear it. I would be grateful to know precisely the motion I'm being asked to vote upon.

[The Chair, Conservative, Ed Fast]

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I can read the motion, which is the final paragraph of this report. All it says is:

I therefore move that the committee report these facts and this possible obstruction by the Minister in the deliberations of this committee to the house as soon as possible so the house may consider this matter further.

That's the motion part.

The three paragraphs above it set out the facts that I've related in summary. I can read those if you wish.

[The Chair, Conservative, Ed Fast]

Yes, please.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

They read as follows:

On November 4, 2009 - Don Head representing Correctional Service Canada appeared before the Standing Committee on Justice and Public Safety. He was asked to provide to the Committee, via the Clerk, information and answers to a number of questions that were posed to him to which he did not have an immediate answer. He was asked to provide the information within a week or before Bill C-36 was considered clause-by-clause.

The answers were not forthcoming. As a result, my staff followed up with the Committee and was informed that the information had been compiled by Mr. Head within the time specified by Committee, however, it was delayed and, as of the time of this report, still awaiting sign-off by the Minister of Public Safety and National Security.

Whether or not the information was withheld intentionally or unintentionally, the Minister has nonetheless, without reasonable excuse, refused to answer a question or provide information required by the Committee, which created the possibility of a finding of obstruction by the Minister in the committee's work.

Then I go on at the end with the motion itself:

I therefore move that the committee report these facts and this possible obstruction by the Minister in the deliberations of this Committee to the House as soon as possible so the House may consider this matter further.

[The Chair, Conservative, Ed Fast]

We'll go back to Mr. Woodworth, because that was in answer to Mr. Woodworth's comments.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much.

If I understand it correctly, if we support this motion we are alleging that the minister does not have reasonable excuse for the withholding of this information. If I understand it correctly, we are alleging that the minister, intentionally or otherwise, has obstructed the work of this committee.

I want to preface my next remark by saying that I have a genuine respect for Mr. Comartin; therefore, I'm not in any way attempting to impugn anything he has said. However, I would be most reluctant to support a motion that alleges that the minister had no reasonable excuse for doing something and alleges the minister has obstructed the work of this committee without having had some direct indication from the minister as to his role in this matter. I am going to assume that, as nothing has been placed before me, Mr. Comartin has not had any written response from the minister about this. As a general principle, my preference, before I put my name to an accusation of misfeasance or malfeasance, would be to hear from the party that is, in effect, accused of the misfeasance or malfeasance.

Unless there is something in what I've said that is incorrect, or if there is some further information that I don't know about, I have some difficulty supporting the motion.

Thank you.

[The Chair, Conservative, Ed Fast]

Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Similar to Mr. Woodworth, I have some problems with the motion. I apologize that I was not back from the vote as quickly as other members of the committee, and perhaps I missed part of his presentation.

I have a question and a comment. My specific question for the mover of the motion is this. Have you been denied this information, or is it simply your allegation that it is taking longer than you would like? If it is the latter, I would suggest to this committee, through the chair, that the motion is out of order because it's premature. If the substance of the motion is that the member's privilege has been breached because information that's pertinent to the study of Bill C-36, which is what I understand is the essence of the complaint.... If it's simply a matter of timeliness, then I would suggest, Mr. Chair, that this motion is out of order. I didn't hear that Mr. Comartin has been denied information from Corrections commissioner Don Head or otherwise.

My other comment is this. I appreciate that I haven't been sitting at this table or any tables in the parliamentary precinct as long as the mover of this motion has, but procedurally, I don't quite understand why this matter is being taken, whether it is a matter of privilege...and I'm suggesting it's not, because I haven't heard that the information was denied. Even if it were a question of privilege, I don't know why it's being dealt with in the House. In other committees I have been involved with, issues of privilege have been dealt with first by the chair, and when the chair found privilege had been breached, the chair would report that matter to the Speaker and then the Speaker would follow up and provide a remedy if one were warranted.

I am asking him to answer my question, and that will determine where I go, if I go anywhere, with the rest of my argument.

[The Chair, Conservative, Ed Fast]

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'll take this opportunity to advise Mr. Woodworth as well that we are not making a determination of actual obstruction. We are simply raising the possibility that obstruction has occurred. That occurs in the wording both in the report and in the motion. So it reads “the possibility of a finding of obstruction by the Minister” and then in the motion as “this possible obstruction by the Minister”. There is no actual finding by this committee of obstruction, just the possibility of it.

To answer Mr. Rathgeber, there are really two questions there. The role of the chair may be there in terms of prematurity, but it's not the chair's responsibility to make a finding of either privilege or contempt. Only the Speaker has the authority to do that.

The reason it is being brought here at this point—I think you hadn't come in yet; I already said this—is that the Speaker does not have the ability to make any determination like that without a report from the committee where the alleged breach of privilege was said to have occurred. That is why this report is necessary.

The final point I would make is on why now and the whole question of prematurity. It is very clear from precedent that the requirement for a person alleging a breach of privilege has to be raised at the first possible opportunity. That was today. I can't raise it in the House until I get a report from this committee because the wording you always hear is that the Speaker cannot reach into the committee. The committee has to report out.

[The Chair, Conservative, Ed Fast]

Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I appreciate Mr. Comartin bringing his motion forward, and I believe that his motion asking this committee to find that there is a possible breach of parliamentary privilege is one that in fact should engage all members of this committee, because we did receive a determination, a commitment, on the part of Commissioner Head that he would provide the information requested and provide it in sufficient time that the committee would have it before we went to clause-by-clause consideration.

Now, if there was some impediment on the part of the minister, some difficulty in reviewing the information before it was forwarded to the committee that meant he would be unable to provide it to the committee prior to our moving to clause-by-clause, knowing it was asked precisely that it be in the hands of the committee members before we moved to clause-by-clause, it would have been proper procedure on the part of the minister, through his parliamentary secretary, to inform the committee that unfortunately the minister was unable to review the information provided by Commissioner Head to him and to then release it to this committee prior to clause-by-clause.

I have been a parliamentary secretary for one Prime Minister and two separate ministers. I have been in a position where information has been requested, sometimes by government members, other times by opposition members, and that information was requested to be in the hands of the committee prior to moving to clause-by-clause. There have been situations where the minister has been unable to get through the review of the information to then approve its release to the committee, and I have been in a position where I've had to inform the committee, prior to going to clause-by-clause. It was then the committee members' decision whether to delay clause-by-clause until it received the information or to move forward with clause-by-clause. In fact, we were informed that the information had been sent to our offices.

I know I assumed that there was a screw-up in my office and that's why I had not seen the information, and it's quite possible that my other colleagues were under the same misconception. It was only after we completed clause-by-clause that we were then informed that in fact the information had been sent to the minister and that the minister had not completed his review of that information before releasing it.

So I believe there is a possible breach of parliamentary privilege that impedes my ability to work as a parliamentarian, and the ability of my colleagues, and I intend to support Mr. Comartin's motion. I would like to see the members of this committee do so, so that we can make a report to the Speaker of the House that there's a possible breach of parliamentary procedure. The Speaker can then take the process through as the procedures and rules of the House allow.

[The Chair, Conservative, Ed Fast]

We'll go to Mr. Woodworth, then Mr. Rathgeber, then Mr. Jean.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you, Mr. Chair.

I will make two points. The first point is that if this information was promised and was required for clause-by-clause, then in my view, the appropriate course of action at that time would have been to raise an objection to proceeding to clause-by-clause and to have had a vote on it. I don't recall if that happened. Maybe I was asleep through it. Rather than smearing anyone, I would have preferred that we simply waited to do the clause-by-clause until the necessary information was available. In my view, that would have been the earliest opportunity.

Having said that, I wish to comment on the theory that this committee should offer up a decision on possibilities. If we're going to proceed on the basis that we will impugn people on the basis of possibility, one could imagine waiting until Mr. Comartin missed a meeting to raise some point of privilege on some allegation about something Mr. Comartin did or didn't do. He wouldn't have an opportunity to respond. Then we could simply pass a motion saying that it's possible that Mr. Comartin did something despicable and that we would like the House to consider that possibility.

Quite frankly, as people who are charged with matters of justice, it's surprising to me that anyone would overlook that fundamental principle of natural justice and not allow the minister some opportunity to comment on this before taking a decision. That would only be fair, not that we necessarily always proceed in a fair fashion. If we're going to do something that impugns the minister or even possibly impugns the minister, it would be fair to give him the opportunity to respond.

Having raised the matter at this opportunity, I don't think it would be held against Mr. Comartin under any provision that would require him to raise it at the earliest opportunity. I don't think, having raised it now, that it would hurt his case at all if we tabled the matter to a later date to allow the minister to respond. I'm not up on my parliamentary procedure, Mr. Chair, but if you'll accept it, I propose that we table Mr. Comartin's motion.

[The Chair, Conservative, Ed Fast]

First of all, Mr. Woodworth, we may be able to accept that, but I would first have to determine whether the matter indeed relates to a prima facie case of privilege. I haven't ruled on that yet. I will certainly rule on it, but I want to leave it open for the committee.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Then I'll withdraw my motion until such time as that ruling has been made, and we can determine whether a motion to table would be appropriate.

[The Chair, Conservative, Ed Fast]

Go ahead, Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

On a point of order, you do not have the jurisdiction to determine the prima facie case. You simply have to determine, Mr. Chair.... I'm reading from O'Brien and Bosc on page 150:

The Chair, however, has no authority to rule that a breach of privilege or contempt has occurred. The role of the Chair in such instances is to determine whether the matter raised does in fact touch on privilege and is not a point of order, a grievance or a matter of debate.

That's your jurisdiction, Mr. Chair. By the very fact that I've raised it as a point of privilege--you've heard from other members of the committee who are concerned that privilege may in fact have been breached--it only has to be that. Your jurisdiction and authority stops at that point. I don't see that you have much leeway here in making this determination. It's really the committee that will make that determination in adopting the report.

[The Chair, Conservative, Ed Fast]

I agree with you insofar as the section of O'Brien and Bosc you read. I'm not determining whether a breach of privilege has occurred, and that's why I believe my statement said whether the matter related to a breach of privilege. And I believe that's pretty clear in the rules of procedure.

I'm prepared to make that determination, although I disagree with you that I don't have much leeway in making a determination. I think it's up to the chair to determine whether the matter that is referred to, in this case your particular complaint, is something that relates to a point of privilege.

Anyone else? Mr. Rathgeber, Mr. Jean, and then Ms. Jennings.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

I too am not as scholarly with respect to the rules of parliamentary law and procedure as perhaps my friend Mr. Comartin, but I am very familiar with the concept of undertakings as they're applied from the examination for discovery process.

I listened to Ms. Jennings very carefully and I am sure she is mistaken when she recounts what occurred on the day Mr. Head was before this committee. What he stated, if I recollect correctly—and I'd certainly be interested in another member's impression—is that he would provide the information. I don't believe there were any parameters. Ms. Jennings has stated he would provide the information in time for the committee to do its clause-by-clause examination. It's my recollection that he made no such representation.

An undertaking, certainly in the legal context—and there are a lot of lawyers in this room—is as narrow as the undertaking that is given. You can't add parameters to the undertaking after the undertaking has been given. So for Ms. Jennings to say this information would be provided in time for the committee to examine it before we went to clause-by-clause was not what he said. He said he'd provide the committee.

I still have not heard Mr. Comartin tell me that anybody has denied him this information. As I understand the complaint, it's simply a matter of timeliness. To make even a prima facie motion or to use the words of the learned Clerk O'Brien, the one that touches on privilege, I would have to submit to this committee that there would have to be at least a scintilla of inability to comply with what the witness said he would do.

As I recollect, the witness, Mr. Head, the commissioner of the Correctional Service of Canada, said he would provide certain information to the committee. There were no time parameters. He has not failed to comply with what he said he would do. Therefore, I'm asking you, Mr. Chair, to rule that Mr. Comartin's motion is out of order, it's premature. The undertaking has not not been complied with because timeliness was not an element of the undertaking that was given.

[The Chair, Conservative, Ed Fast]

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair.

Obviously I'm coming a little late to this meeting, but it always interests me to participate in discussions to do with Marleau and Montpetit. I would refer the committee and you, Mr. Chair, to page three, which deals with privileges and immunities. I would like to read some of this into the record, if I may. It speaks directly to the issue, and I quote:

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.

I would suggest that in listening to this discourse, we should take note of whether there is a positive obligation on a minister or in fact a negative obligation. Under that context, I will continue, if I may, Mr. Chair:

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—