Public Accounts Committee on June 18th, 2009

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Saxton. Thank you, Ms. Meredith.

I just have a question to you, Madam Stensholt. I agree with Mr. Walsh that the Privacy Act does not apply in this case. As I said before, statutes of general application do not affect the powers and privileges of Parliament.

We had your opinion, or your position, I should say. We checked it with one lawyer, a parliamentary lawyer; we checked it with another one. I checked with Derek Lee, who wrote the book on that issue. I read part of the book. I checked with Marleau and Montpetit, with May. I have two academic experts I use regularly, and they both...everyone is of the same view as Mr. Walsh: this is not a grey area, there's no discussion here. The Privacy Act does not apply. The department has an obligation to provide that material.

What the committee does with it vis-à-vis privacy, that's up to the committee itself. We would hope it would deal with it appropriately. Do you have any--

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

I'm sorry, but as a lawyer myself, and knowing that I'm wearing a hat as a member of Parliament—not as a lawyer, but as a member of a committee, and I have to perform my role as a committee member—I'm wondering about the role of the chairman providing legal advice to our committee, because I can think of several reasons why I would disagree with Mr. Walsh's opinion. I could think of courts that would impose obligations on us if we do receive privileged or private information that would make us very cautious in how we deal with it, in ways we may not be dealing with it even today. But I am not expressing my opinion as a lawyer, because I don't think it's my right role, so I'm troubled.

[The Chair, Liberal, Shawn Murphy]

My question to you, Madame, is whether there is any precedent—and the same principle will be followed in other Commonwealth countries such as Great Britain, Australia, New Zealand, Scotland, Wales—out there in the Commonwealth world that supports your position?

[Ellen Stensholt]

Mr. Walsh alluded to the fact that this issue arises not infrequently, and it very often arises in the context of the Privacy Act, because personal information and the privacy of individuals is a very important value in Canadian society. Departments have come here before parliamentary committees in the past, and they have taken the position that they themselves are bound by the Privacy Act. The parliamentary committee is not.

With respect, I think the way we reconcile the position...Mr. Walsh's position is that Parliament is supreme. I completely agree. When you explained to one of the members how this gets dealt with, you said in fact it ends up being referred to Parliament. This is, with all respect, a parliamentary committee. Marleau and Montpetit, all of the authorities, are clear that a parliamentary committee can order the production of documents or witnesses but cannot compel their attendance or their disclosure. Only the House of Commons can compel the disclosure. On that, I am sure there is absolutely no disagreement in this room. This is in every standard parliamentary text and practice.

[The Chair, Liberal, Shawn Murphy]

My question, though, is this: is there any precedent, any other House of Assembly that has supported your principle? There are all kinds of cases dealing with it. Are you aware of anything that would support your—

[Ellen Stensholt]

My principle, Mr. Chair, is simply that as a department, Public Works is bound to comply with the Privacy Act. When on other occasions other departments have come before this committee—and this I have obtained from the annual reports of the Privacy Commissioner—what happens is they make a determination that it is in the public interest. There is an exception under the Privacy Act, 8(2)(m), that says that we can release personal information without the consent of the individual if it is in the public interest to do so.

To date, my client is of the view that a case has not been made that the release of these five names in fact fits that category. There have been at least four precedents here in Canada, where once a department releases something without the consent of an individual using that exception, it is required, preferably beforehand and certainly as soon after the disclosure as possible, to inform the Privacy Commissioner. So this is tracked, these are statistics that are available, and this has been the route other departments have followed.

[The Chair, Liberal, Shawn Murphy]

Do you have any response, Mr. Walsh?

[Rob Walsh]

First, the courts have no jurisdiction with respect to parliamentary committees, and no court would make an order against a parliamentary committee. That's in response to the earlier member's comments.

On the point about the House versus committees, if I understand the witness correctly, what Marleau and Montpetit or other texts may be saying is that the committee can't punish for contempt, so the summons or a directive to produce information by a committee is not punishable by the committee. They have to report to the House, and it's the House, then, that could visit punishment upon a person if the House agrees that constitutes contempt. But the order for production of information has its origins in the committee, and that's the order to which persons are obliged to respond, failing which it could be the subject of a contempt proceeding in the House.

[Ellen Stensholt]

If the House supports the order of the committee, yes.

[The Chair, Liberal, Shawn Murphy]

Okay.

[Rob Walsh]

That's true, but that doesn't make the offence any less of an offence for happening here.

[Ellen Stensholt]

I think on this we're going to disagree, Mr. Walsh.

[The Chair, Liberal, Shawn Murphy]

What's the pleasure of the committee? It's almost 3:30. Mr. Christopherson has a motion on this issue.

Mr. Kramp?

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

I'd like to have a couple of words. I don't need my full five minutes on this.

[The Chair, Liberal, Shawn Murphy]

We have another issue. No, I have no problem with that, Mr. Kramp. I would propose to allow three minutes for the Conservatives, two minutes for the Liberals, and then we would move to the next issue. Is that okay? I think that's fair.

Go ahead, Mr. Kramp.

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

Being a non-lawyer, I'd just like to get a result. Quite frankly, we're arguing moot points back and forth like this. I see two dilemmas here. Number one is whether or not this can or should be made public to this committee. We have a legal right, arguably, and then we also have a responsibility as a committee to act in a moral and proper manner as well. We as parliamentarians have some enormous responsibilities. We cannot just decide that there is the legal ruling and we'll go ahead and do it. We have other responsibilities as well. Obeying the law is one thing, but we have to pass some mature judgment as to where we go with this case.

In a particular case like this, what we're talking about—if we accept the letter from Public Works—is 12 seconds' worth of tape. If we're talking about 12 seconds' worth of tape, why wouldn't we just go in camera and hear those 12 seconds' worth of tape? We're not worried about the Privacy Act when we're in camera, and we can see if the committee finds it acceptable or not. At the end of that, we know we can pass judgment.

I think it's a totally separate issue whether or not there is more time that has not been reported by Public Works, or by error, or rightly so by Madame Faille. I think we could go down another road with that, and that's something that potentially we should have validated one way or the other with the work that was put into that. Right now, these tapes, I think we're just going around the whistle-jerk here. There's really no reason for this. Let's just go in camera and hear what the words are and then make a decision on that and enter it into the committee's words.

[The Chair, Liberal, Shawn Murphy]

Mr. Saxton, you have up to a minute.

[Andrew Saxton, Conservative, North Vancouver, BC]

I'm not a lawyer. We've been dealing with a lot of legal issues here today. I am a former small businessperson, and I can tell you that the rights of the small businesspeople who did go and were recorded I think are the utmost of what we should be looking at. I can tell you that I would be reluctant to go and have myself recorded now, knowing that it's potentially going to be made public when I wasn't told that in the first place.

Legal arguments aside, do we want to be able to have small businesspeople in future come before various departments and share ideas with them? Because if we do, we're going down a very slippery slope by allowing those recordings to become public.

[The Chair, Liberal, Shawn Murphy]

Okay. I'm going to allow the Liberals two minutes. I'd like to put Mr. Christopherson's motion, and then I'm going to go on to the second part of the meeting. I'll ask for closing comments from Ms. Meredith.

Ms. Hall Findlay.

[Martha Hall Findlay, Liberal, Willowdale, ON]

Thank you very much, Mr. Chair.

I would like to support my colleague Mr. Kramp and my colleague Mr. Saxton. Having the double hats of being a lawyer and a businessperson, I could not agree more with Mr. Saxton. I think if anything can be learned here, it's that the next time consultations are had, they are going to be taped. The easy answer is to say to the participants that these are being taped and could be made public. Sheer participation would then be the consent needed to disclose it, if it were necessary.

I think if anything can be taken here from a positive perspective, it's that everybody has learned something about the process. I would also suggest that in those consultations, we as parliamentarians would have had every right to sit in on those consultations. We as an entire committee could have gone and sat in on those consultations. Therefore, we would have heard those names. That should support Mr. Kramp's view that at the very least we go in camera and we can hear the missing pieces of the tape and the issue should be resolved. With only the support of Madame Faille's incredibly hard work, we look forward to hearing the response from the department as to the discrepancy.

[The Chair, Liberal, Shawn Murphy]

Thank you very much.

What I'd like to do now is perhaps ask for closing comments from Ms. Meredith. Before I do that, I'm going to take 30 seconds and say I agree with Mr. Kramp.

The way this should have been handled, as far as I'm concerned--and I'm just one member who doesn't even have a vote--the tapes, in their altered state, should have been given to Parliament. If there was anything in there the department thought should not have been in the public domain for whatever reason--and this happens quite frequently, national secrets are shown to parliamentary committees--that should have been pointed out to us, and the committee I hope would have dealt with it appropriately. That decision was taken away from Parliament. It was done by somebody in a department, and I think that's where we went off the rails.

It's quite right. This committee does not have the power to.... All we can do is report this to the House. For one last chance, Mr. Christopherson has made a motion that's in front of you. It's pretty clear. It's almost a repetition of a previous motion in this committee. For clarity, I thought it would be better to have it.

[David Christopherson, NDP, Hamilton Centre, ON]

Do I have one minute to speak to my motion?

[The Chair, Liberal, Shawn Murphy]

Yes, Mr. Christopherson.

We'll just wait until people get it.

[David Christopherson, NDP, Hamilton Centre, ON]

Very briefly, I'm not going to go into it a whole lot.

I'm not disagreeing at all with the comments the chair has just made in respect of Mr. Kramp. I agree that's the way it should be. I agree that this 12 seconds, and it may not sound like a lot.... I say to colleagues, you heard the chair ask our witnesses if there is any precedent. These things matter because they do set a precedent, not just in Canada but in our provinces and territories, and in the Commonwealth in particular. The principle matters significantly, particularly to opposition members, to ensure that we can get access to the same information government members can when we're dealing with issues.

The second thing I want to raise is that the process had us raising an eyebrow. There was resistance from the beginning. The first time, Chair, we were told there weren't transcripts. We wanted transcripts. They said we'll give you transcripts. It was too expensive to do the transcripts. Then we went to “the tapes are coming”, and then there was a problem. I'm pointing out that this is not just in the cold. The principle that we receive the material and then we take it upon ourselves as members of Parliament and the committee to decide what we would do with the issue of privacy is the correct process. It starts with the principle of the department responding to a standing committee's request for information in its entirety, untampered.

Therefore, my motion speaks very directly. It's giving the department a chance to go back, give this a bit of a rethink because of what they've heard here, and I hope they'll respond. We'll deal with the issue of privacy. We'll take the responsibility. We're the ones who are accountable to the Canadian people, and then the proper procedures will have been followed.

[The Chair, Liberal, Shawn Murphy]

Okay. It is moved by Mr. Christopherson. I really don't want a long debate, colleagues, because we're out of time, but I'll allow a couple--