Justice Committee on Nov. 25th, 2009

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting 50 of the Standing Committee on Justice and Human Rights. Today is Wednesday, November 25, 2009.

Once again, I will reminder all those present to turn off their BlackBerrys, or at least switch them to vibrate. If you're going to take a call, please take it outside of this room. Thank you.

You have the agenda before you for today. We're continuing our review of Bill C-52, and we have a number of witnesses with us.

Mr. Comartin, we left off at our last meeting with your point of privilege. Are you intending to raise that again?

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

I am, Mr. Chair. I think it was clear, not only from me, but from other members of the committee, that we wanted to resolve this at the start of this meeting.

I reiterate that I am bringing forward that motion asking for a report to come from this committee. I think there was an attempt to have it translated. Could I ask whether we have a translation of the wording that I proposed at the last meeting?

[The Chair, Conservative, Ed Fast]

I'm advised by the clerk that we don't.

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

That's fine, Mr. Chair, I can go ahead without it. I want to do a quick review of the situation.

Perhaps, Mr. Chair, we should indicate to the witnesses that there's going to be a slight delay while we deal with this.

[The Chair, Conservative, Ed Fast]

They may have already noticed that we're doing a procedural matter ahead of their testimony.

To the witnesses, we have a point of privilege that has been raised by Mr. Comartin. That may take some time to resolve, and then we'll move on to hearing from you.

Back to you, Mr. Comartin.

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

Thank you, Mr. Chair.

There are one or two members who weren't here at the last meeting, so I'll just do this quick overview.

I and Mr. Lemay had asked for certain data from Mr. Don Head, Head of Corrections Canada. He in fact had provided that. I now have information, which I didn't have then, that on November 13, having committed to do that for us in advance of the clause-by-clause meeting on Bill C-36 on November 16, unfortunately he sent the letter, although it was addressed to the clerk of this committee, to the minister's office of Public Safety and National Security. That letter then sat there until it was handed to me yesterday; I received a copy of it from the government House leader yesterday. I believe it has been now delivered today to all members of the committee. This is the advice from my office this afternoon, anyway.

So we have finally received it. Of course, we received it after clause-by-clause and after the debate took place in the House on Monday and Tuesday of this week. There was absolutely no reason given, either by Mr. Head or the minister's office, and the minister himself, as to why the material wasn't provided to us as had been promised and undertaken by Mr. Head in the meeting when he attended on November 4.

There is, I think, ample precedent, Mr. Chair, for the fact that when that type of undertaking is given it is to be complied with by a public servant. If Mr. Head felt that he was under some compunction or compulsion to give that to the minister before it got to this committee, I'm not sure where he would have come by that. That's not the proper process. But at the very least, if he passed it on to the minister's office, the minister's office should have been responsible for getting it to this committee in a timely fashion, as had been committed to this committee.

If they couldn't have done that, Mr. Chair, they should have advised the committee and the committee could have taken appropriate steps to ensure that the material was before us before we conducted clause-by-clause by adjourning clause-by-clause to a later date until the information was received.

The information clearly was pertinent. I say that from having only had some time to go over it. It was clearly pertinent to the issues that were contained in Bill C-36 and it would have been very much pointed to, at least by me and Mr. Lemay, as to why Bill C-36 should not have proceeded as prepared.

Mr. Chair, again, for maybe a couple of the members who weren't here on Monday, what is required at this point, if I can go ahead with my point of privilege in the House, is for this committee to send a report to the House to advise the Speaker, who has authority to determine whether in fact there has been a breach of my parliamentary privilege and that of Mr. Lemay's, and I think of the committee as a whole. In order for the Speaker to be able to determine that, the Speaker has to have a report from us as to what in fact occurred. And, again, I had given the committee a summary of the report that I thought was appropriate. I read that into the record on Monday afternoon at our last meeting.

In addition, there is some urgency on this, as I again made the point on Monday. If you are going to pursue a point of privilege, you have to pursue it at the first opportunity. For me, that opportunity arose on Monday morning when I found out that in fact this material that I and Mr. Lemay had requested and committed to receive had never been delivered to us, as I had been informed previously, and as I understand some other members of the committee had. We in fact never got it. We were advised that it had been given to us. We thought we had simply misplaced it or we had simply not seen it.

I became aware that it had never been received and that the minister's office had somehow intervened in this process. My time in bringing my point of privilege started running on Monday. I think the general rule is that you should get this before the House within a day or two. This is now the second day, I suppose you could argue maybe even the third day. The Speaker has made it clear in the past, not only this Speaker but others, that you must move on this quickly.

So it's absolutely essential that we deal with this today, that we issue the report, get it back to the House either tomorrow or Friday, so I can bring my point of privilege before the House.

[The Chair, Conservative, Ed Fast]

Thank you.

As members know, I haven't yet ruled on whether this is a matter that relates to a privilege of a member.

Before I do, are there any other comments?

I'll go to Monsieur Lemay...

Oh, sorry; Mr. Moore was already on the list. We'll go to Mr. Moore and then to Monsieur Lemay, then Madam Jennings.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Chair.

I'll be really quick. We do have witnesses here, and I'd like to see us proceed as quickly as possible.

I was not here on Monday when Mr. Comartin brought this forward. He mentions clearly pertinent information. Well, my position would be, and I think most of us have been around this table long enough to know, that if there is some information someone needs before proceeding or before deciding how to vote, that request should be made well before we proceed to clause-by-clause. If the information that was needed to decide how to proceed with clause-by-clause wasn't available, clause-by-clause could have been delayed. No request was made. Now this bill is no longer with our committee. We're no longer vested with it. It's with the House, and this is not the appropriate time, in my view, to try to bring a bill back to our committee. If the information was necessary, we could have dealt with it at that point.

I think we do have a very busy agenda here. I don't want to delay this any further, so I'm not going to speak on it any further, except to say that on this side we are going to be opposing Mr. Comartin's motion, and think it's inappropriate to bring it at this time.

[The Chair, Conservative, Ed Fast]

Monsieur Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I am going to try to stay calm, which will be very difficult, considering the comments I have just heard from the parliamentary secretary.

It is not our fault if you have overloaded, and I do mean overloaded, the committee. You have introduced nine bills. You want to amend just about the entire Criminal Code, and you would like us to do it expeditiously. That is what I call disrespect, and you are being disrespectful to the members of this committee and the House of Commons, period. The document is now in our possession, we should have received it on November 13. Someone hid it or forgot to send it, and it is the privilege of the members of this committee and the members of this House to speak out against that. I don't know that this will be the decision of the chair—I somewhat doubt that—but it seems to me that this is an attitude we must speak out against. This has to stop.

It is not our fault if you call so many witnesses that we don't have the time to hear them. It's too bad and I would like to apologize personally to the witnesses who have made a long trip to come here today. Everyone knew... I apologize to the chair, but he knew, and you knew as well, that the discussion on this motion would be continuing today. You knew it and you still took the risk of inviting witnesses. When I see the list of witnesses invited to appear today, I am outraged for them. I am telling you that, and I hope you will take note: you are not going to derail us, to bulldoze us. You are going to take your time, you are going to calm down, and we are doing to do it peacefully. These are extremely important bills. For example, in a few minutes, some of us are going to have to go to the House to speak to Bill C-58. That isn't stopping.

So take your time, take a deep breath, and submit the documents. You knew that you had to submit them before November 16 and it could have been done. I have the French version here; it was signed on November 13. There was nothing to stop you from giving them to us and it is that failure that seems to me to be deplorable on the government's part.

Thank you, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Ms. Jennings.

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

Very briefly, I'll simply give my thoughts on whether or not the motion that Mr. Comartin has raised here relates to parliamentary privilege.

In my mind, it definitely does. Members of this committee, while conducting a study on a bill, in this case Bill C-36, properly asked questions of one of the witnesses. The witness said he had the information to be able to answer the questions but not in his physical possession at that time. He was then asked if he could provide that information to the members of the committee through the chair before November 16, as we were going to clause-by-clause at that time. The witness clearly stated that, yes, he could do so.

On November 16 we presented ourselves for clause-by-clause, and some members asked where the information was from that witness. They were informed that the information had been sent to their offices, that it had been distributed to all members.

In answer to Mr. Moore's statement, those members, having being informed they were in possession of the information they felt they needed to properly conduct their duties and responsibilities as parliamentarians and proceed to clause-by-clause as it would inform their decisions on the clause-by-clause, did not make an issue of it because they assumed the fault was theirs or that of their staff.

It was only once we had completed clause-by-clause that we were informed, or at least some members were informed, that this information had been available but had been...I hesitate to use the word “diverted”, but had landed in the office of the minister and had not been distributed to members of this committee. Therefore, these members, Mr. Comartin in particular and Mr. Lemay, proceeded to clause-by-clause based on erroneous information.

I believe it does relate to parliamentary privilege. We have a duty and a responsibility to do what we feel is necessary to prepare ourselves when we're conducting a study of legislation in that particular case. Some members felt they needed certain information prior to feeling comfortable to moving to clause-by-clause. They were informed they would get the information. In fact, they did not get it but were misinformed that they had gotten the information.

My view is that it does relate to parliamentary privilege and to a potential breach of parliamentary privilege.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I just want to put it on the record that, as I understand it, this item was delivered to the minister's office on November 13, which was a Friday. We have no information as to what time of day it was delivered to the minister's office. The clause-by-clause apparently occurred on the Monday, which in effect is the next business day. We have no information that it was even brought to the minister's attention on the morning of November 16.

The fact is that the minister would have had no reason to expect this letter to be delivered to him. The clause-by-clause having been completed, there was no reason to rush it to us. We have now received it. It's a moot point.

Thank you.

[The Chair, Conservative, Ed Fast]

Mr. Lemay, on a point of order.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

The document I have in hand was addressed to Miriam Burke. As far as I know, she is the clerk of the committee, and also an employee of the House of Commons. The document was sent on November 13. Someone stepped in on that date, because the document I have in hand is dated November 13.

[The Chair, Conservative, Ed Fast]

Monsieur Lemay, it doesn't sound like a point of order. I'd be glad to add you to the bottom of the list to speak to this. Unless it's a point of order I'm going to move to the next speaker, who is Mr. Rathgeber.

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

Thank you, Mr. Chair.

Very briefly, with all due respect to Ms. Jennings, I think her argument actually weakens Mr. Comartin's petition for breach of privilege. When she indicated that somehow members on that side, or the members who are claiming privilege, that the fault was their own that this information wasn't provided, it--

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

That's not what I said.

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

That's exactly what you said--and I do have the floor, thank you.

With reasonable diligence, certainly the members would have been able to know that they did not receive the documents. If these documents were so pertinent, as my friend Mr. Moore aptly pointed out, it was incumbent upon the members to know that they didn't have them and that it wasn't some clerical error, or that the fault wasn't their own. That objection should have been raised on November 16. If these documents were so pertinent that they were essential to deal with clause-by-clause, it should have been raised at the first available opportunity—November 16, not today.

This motion is out of order.

[The Chair, Conservative, Ed Fast]

All right, thank you.

We'll move on to Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thankfully Mr. Rathgeber just made the point that I was going to make about Mrs. Jennings' intervention. To say somehow that because you thought your staff had the documents, but they didn't have the documents, then it was okay to proceed to clause-by-clause, because there was important information that you had been waiting for—it was so important—but because you thought you had it you would take a pass and just go to clause-by-clause...

The fact is that all the information that people needed to vote on this bill had been presented. The vote was taken. We went to clause-by-clause and the bill has been passed on to the House.

On Mr. Lemay's point about the pace that we're studying justice legislation, we make no apologies for introducing bills that will improve the criminal justice system. There are many improvements that are needed, so many bills have been put forward. The agenda of this committee and the pace at which this committee studies legislation is set by the opposition, which has more members than we do.

In no way do we control even the scheduling of the clause-by-clause. The clause-by-clause date could have been moved. There was no request made to move it, so one would assume that members had all the information they needed to make an educated decision on how they would proceed with clause-by-clause. We went to clause-by-clause, and the bill is in the House. That should be the end of the matter.

It's inappropriate to now say that members want to hear more witnesses or look at more evidence. That's our responsibility when we set the agenda in the first place, and that decision was made.

Mr. Chair, I would like us to end this matter so we can hear from witnesses.

[The Chair, Conservative, Ed Fast]

Is there anybody else?

All right. I will rule on whether this is a matter that relates to a point of privilege. I'm using as my reference the newly issued O'Brien and Bosc.

I'd like to first of all highlight the fact that the peculiar rights, as they're referred to, I'll divide into two categories. One is extended to members individually, and then there are those that are extended to the House collectively. From everything I've heard, I believe this deals with the rights extended to members individually.

There are five heads under that right. First of all, there is freedom of speech, which this doesn't impact. There is freedom from arrest and civil actions, which it doesn't impact. There is exemption from jury duty, which, again, is not applicable. There is exemption from being subpoenaed to attend court as a witness. The fifth one is freedom from obstruction, interference, intimidation, and molestation. I believe, from the material I've seen from Mr. Comartin, and from the comments he's made both today and on November 23, he's referring to obstruction and interference.

My role is to determine whether the matter raised by Mr. Comartin relates to privilege. I also note that the point of privilege raised is against a minister of the crown specifically and relates specifically to the Minister of Public Safety.

I have consulted with the clerk and have reviewed O'Brien and Bosc. There's no specific case in point that previous speakers have ruled on. There are some cases that are similar, and for those of you who wish to check this later, I refer to page 115 of O'Brien and Bosc , and specifically to footnote 242.

Speaker Milliken on February 25, 2004, was dealing with a prima facie breach of privilege concerning misleading statements in the 1999-2000 report on plans and priorities of the Department of Public Works and Government Services.

What's important are the two sentences I will read right now, again in that footnote 242 on page 115:

The Speaker found no evidence to indicate that departmental officials had deliberately intended to deceive and obstruct Members. He noted, however, that if the Standing Committee on Public Accounts were to present the House with such evidence, it could constitute grounds for raising a question of privilege.

I note there the words “deliberately intended”. I believe the words “obstruct” and “interfere” imply an element of intent and an element of deliberation.

I wanted to refer to some of Mr. Comartin's comments leading up to this matter being dealt with today. I'm going to refer back to his comments on November 23, when he referred to a discussion he had with Mr. Lukiwski, the Deputy House Leader of the Conservative Party.

He said that he--referring to Mr. Don Head--believed he gave it--referring presumably to the information Mr. Comartin was seeking--to “the Minister of Public Safety and National Security. Mr. Lukiwski confirmed early this afternoon that, in fact, the minister had it, has had it since at least last week, last Monday, has not seen it, is reviewing it, and will provide it to us in a week's time”.

That causes me some concern, because I believe Mr. Comartin assumes the information he received from the clerk, as well as from Mr. Lukiwski, is correct that in fact the minister had not seen that information at the time Mr. Comartin apparently was considering this point of privilege. Yet later on he remarks that “there has been direct interference by the minister in a situation where he should not have had any involvement at all”.

Then I go on again to quote Mr. Comartin as follows:

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.

So I have to draw from Mr. Comartin's comments at our last meeting that he's not sure whether in fact the information was withheld intentionally or unintentionally. He alleges “without reasonable excuse”. I'm not aware that the minister has ever been provided an opportunity to answer that claim—certainly not here at this committee. And I'm not sure that simply referring to the possibility of finding obstruction is enough to make out that this matter relates to privilege.

To wind this up, I want to say that a matter of privilege is not simply conjecture. Alleging that a minister has infringed upon a member's privileges by deliberately and with intent obstructing or interfering with a member's work is a very serious charge. Before I would find that a matter relates to a point of privilege, I would have to be confident that the member raising the point of privilege is alleging an actual intentional act to interfere or obstruct.

As I say, I don't have any clear direction in O'Brien and Bosc on the issue. There are no cases specifically on that point. I can just draw from the cases there that are somewhat similar and come to a conclusion on that.

I don't believe a point of privilege was ever intended to be used as a fishing expedition, although I'm sure that was not Mr. Comartin's intent here. This committee and Mr. Comartin himself have means available to secure a clarification from the minister as to the reasons for the delay in receiving the documentation Mr. Head provided on or about November 13.

I also want to note that we often face cases where information is delayed, and for many different reasons. I can think of many different reasons why a minister would not be able to immediately provide information, which would provide a reasonable excuse. The allegation is that there is no reasonable excuse here. I would think it would behoove us to first determine the cause of such delays through other means before resorting to a point of privilege.

It's for those reasons that I am unable to find that the matters Mr. Comartin has raised relate to a matter of privilege. I do want to assure the members of this committee that I take questions of privilege very seriously. If a matter properly deserves to be treated as relating to a point of privilege, I will act accordingly.

I thank all of you for your input into that process.

Mr. Comartin.

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

On page 151 of O'Brien and Bosc, the last two sentences say that

Should a member disagree with the Chair's decision

—this is what the role is of the chair, but obviously I disagree with the decision—

the Member can appeal the decision to the committee ( i.e., move a motion “Shall the decision of the chair be sustained?”). The committee may sustain or overturn the Chair's decision.

I move that motion at this time, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Are you challenging the chair's ruling?