Public Accounts Committee on May 26th, 2009

[David Christopherson, NDP, Hamilton Centre, ON]

On the pivotal point of whether the privacy issue was going to legitimately prevent us, we dealt with that, and you're alluding to that procedure now.

[The Chair, Liberal, Shawn Murphy]

Yes, that's right.

[David Christopherson, NDP, Hamilton Centre, ON]

It passed, right or wrong.

Now there's a motion being put before us that goes in the exact opposite direction, and I'm asking for a ruling from you. Is this not tantamount to a double jeopardy? You vote on one matter one week, and then you roll back the next week and put in the same motion that goes in the opposite direction. I'm just asking for your ruling on whether that's in order.

[The Chair, Liberal, Shawn Murphy]

It's up to the committee. I'm a servant of the committee.

If you go to the first few words of the motion, “That, notwithstanding the motion adopted on May 12, 2009,” you're quite correct that, if we adopt this motion, we are taking a 180-degree turn.

Madame Faille.

[David Christopherson, NDP, Hamilton Centre, ON]

Are there not procedures for that, though, as to who can introduce a motion when it's the exact opposite of where we've already been?

[The Chair, Liberal, Shawn Murphy]

The committee is the master of its own....

Madame Faille.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

We were told that the tapes would be provided. Is this motion null and void?

[The Chair, Liberal, Shawn Murphy]

Let me say at the outset that I find this disturbing. I listened to what the lawyer said. I have researched this point, and it's my opinion that the Privacy Act and interests of privacy have no bearing on this issue at all, none whatsoever. But somebody over at Public Works thinks otherwise.

They haven't filed the tapes. They've reduced them to CDs. We have about 12 of them. We got them about two hours ago. The information we're getting from Public Works is that we're going to get the rest of them prior to the end of the week. We don't know if they've been altered or are unaltered. If they haven't been altered, then of course they've met their obligations under the previous motion, and they will be recorded and circulated to all members of this committee shortly.

That's where it stands, but we don't know if they've altered them or not.

[David Christopherson, NDP, Hamilton Centre, ON]

There are 18 minutes missing.

[The Chair, Liberal, Shawn Murphy]

There could be.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Chair, if we have the tapes, this motion becomes redundant. I do not know why we're going to circular motions.

[The Chair, Liberal, Shawn Murphy]

We have a situation right now where the Department of Public Works and Government Services is in violation of an order of this committee. We asked them to provide them by May 12. They didn't do it. They did it this afternoon at 3:30. So they're in violation of a motion of this committee, and they are continuing to be in violation because they say they won't get it in until Friday. And again, we don't know whether they've been altered.

We'll entertain three more interventions.

Had you finished, Madame Faille?

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I don't want the floor, but I'm opposed to this motion.

[The Chair, Liberal, Shawn Murphy]

We have two or three more interventions. Is there anybody else who wants to speak?

Mr. Young, Mr. Kramp, and then I'll put the question.

[Terence Young, Conservative, Oakville, ON]

As I said about the motion the last time, the previous motion, I was very uncomfortable with it and wouldn't be supporting it.

I was very uncomfortable. I didn't want to be a part of it.

For the same reason, I'm supporting this motion. In my view, the Privacy Act is pretty clear.

Thank you.

[The Chair, Liberal, Shawn Murphy]

Mr. Kramp.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

That argument as well, Chair, and I absolutely did not want to put us in a position where I'm going to suggest this committee go contrary to the Privacy Act. We have a legal argument that suggests it's not on that particular point. But you're suggesting, Chair, that you had a private conversation with legal officials who advised you of one thing. Well, that could be, but certainly if that's the case, that's one set of lawyers. Chair, you've been a lawyer yourself. You recognize sometimes lawyers have different opinions. I can certainly assure you we probably haven't heard from the lawyers from Public Works, because they might have a different take on this.

I think the point being made is that the government members on this side, and certainly I as an individual member, are not party to moving forward with a motion—I did not vote for it in the past and would not vote for it now—to suggest that we would just automatically go and ignore the Privacy Act, regardless of the situation.

I think it's moot, in a way, the simple reason being that they apparently have 12 of the 18; the rest are coming within the week. Well, wonderful, but I don't think we need to go down that road. If for some particular reason the tapes aren't what we wanted and/or the tapes weren't produced, then we would go through the route and ensure we would have access to them, but I don't believe that's the problem.

[The Chair, Liberal, Shawn Murphy]

Mr. Weston.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

On a point of order, Mr. Chair, I think what Ms. Ratansi was raising was really a point of order as well. Is this a moot issue? If we find that either we or the ministry is in breach of a law, then we shouldn't be reviewing those tapes that we have received. I would say that even though some of them have been delivered and more may be on the way, we ought to thoroughly investigate that before either we or the ministry commits an offence we would all regret.

[The Chair, Liberal, Shawn Murphy]

Well, just to go back to Mr. Kramp's point, the legal issue I was talking about was with Mr. Tardi, who appeared here, and he's given us his testimony and opinion on the issue.

Mr. Christopherson.

[David Christopherson, NDP, Hamilton Centre, ON]

I won't be long. When Madame Faille first raised this, no one really knew exactly what road the honourable member was going to go down, but she's a respected member of this committee. She's never done anything that suggested actions that wouldn't be supported by all of us, so we said yes—and we usually do unless we have a reason not to. Then it kind of proceeded, and there was a little resistance. Then Madame Faille brought it back again. She's very tenacious. She brought it back again. Most of us, again, weren't focused on this; it wasn't a priority, but it was a concern she was following on behalf of some concerns that had been raised to her. So then we pushed a little more, and then finally we're told, “No, we can't give you that.”

If you recall, it would cost too much money to do all the transcripts, and suddenly it just started to look as if there were blockades put in front for some reason, out of nowhere. So we pushed past that and said, “Look, just give us the tapes, then.” We accept that we don't want to spend a lot of money, but we have a member who wants a piece of information that's relevant to an issue in front of us and we're going to support her in that.

Then we get into this stuff about, well, they can't give it to us now because there are privacy concerns. Okay, well, the last thing any of us wants to do is infringe on the rights of a Canadian citizen. What would be the logical step? We call in the parliamentary law clerk's office. Now, I'm not going to go into details of the advice we got, but I think it's fair, and suffice it to say that what he suggested to us was because he had meetings with their lawyers. At some point you have to pick a lawyer you're going to follow. He came to us, after having consulted with the others, and gave us a rationale as to why he didn't think the arguments stood the test.

I'm not a lawyer, so I'm not even going to enter the fray, but I have to decide who I'm going to follow. At the end of the day, the majority of the committee decided, based on the legal advice of the parliamentary law clerk's office, that we were entitled to all that information and there were no privacy issues per se.

Now we get this kind of letter, just ignoring our decision and saying, “We're going to do this, anyway.” I have to tell you, as one member peripheral to this issue, more and more I'm starting to wonder what you are hiding. What is the big deal that this department is prepared to block a legitimate decision of this committee to receive information? This stuff about privacy, there's nothing there beyond the members of the government saying it. We have all the information I think we need to stand by the decision we made.

Chair, we may be into a situation where they're in contempt of this committee. It's one thing to call you or to call the clerk and say, “We still have ongoing problems; we have to do something”, but to send us a letter that just basically says, “We really don't care what you've decided, we have made this decision, and therefore we will decide what information we're going to spoon-feed you. We're not necessarily going to give you all the information you asked for.” Suddenly we're getting a major federal case out of one member simply asking for information and the majority of us backing her up.

[The Chair, Liberal, Shawn Murphy]

I'm going to spend 30 seconds reading what I consider to be the law on this issue, and it really goes right to the supremacy of Parliament:

Parliament, and by extension its committees, has the constitutional right to initiate inquiries, to call witnesses, and to demand papers and records. This right is not limited by any ordinary statute, including the Access to Information Act and the Privacy Act.

Although the House has not placed any restriction on the power to send for papers and records, it may [that's the House] not be appropriate to insist on the production of papers in all cases. ... ...considerations of public policy, including national security, foreign relations, and so forth, enter into the decision as to when it is appropriate to order to production of such documents.

Where a committee meets with a refusal to provide a document it deems essential to its work, the committee may pass a motion ordering its production.

That has been well known. It's in Marleau and Montpetit. It's in the other books dealing with parliamentary procedure.

I think we've said enough. I'm prepared to put the question right now on the motion as amended.

Mr. Saxton has called for a recorded vote. I will turn that over to the clerk.

[The Clerk of the Committee, Ms. Joann Garbig]

There is an equality of voices. It is a tie.

The chair votes nay.

(Motion as amended negatived: nays 6; yeas 5)

[The Chair, Liberal, Shawn Murphy]

I remind all members that Thursday afternoon we will be dealing with four reports. I won't be here. Mr. Kramp will be chairing the meeting.

The meeting is adjourned.