Thank you, Mr. Chairman.
I have a presentation that was prepared before I was aware you had these exchanges with the lawyer. But I'll proceed with the presentation anyway; it doesn't make a material difference.
I have been asked to outline the options for further action where a witness has not responded to invitations to appear before the committee and has seemed evasive when attempts have been made to contact her. I understand that some members of the committee feel the committee should immediately report this matter to the House and seeks its aid in bringing the witness before the committee, perhaps including a citation for contempt of Parliament.
I understand the witness is presently outside Canada, and she is not expected back until late April. A lawyer has recently contacted the committee clerk and indicated that he has been retained by the witness but that he too is outside the country. He is not expected back in the country for several weeks, I believe.
Nonetheless, it would appear that a channel of communication with the witness is available through the lawyer, and I would suggest that the committee ask the lawyer whether he will accept service of the committee summons on behalf of his client, the witness. It is an important consideration in this case that the witness, for whatever reason, has not yet been personally served with the committee summons.
If the lawyer is not prepared to accept service of the summons on behalf of the witness, the Committee could attempt to effect service upon the witness directly if the Committee knows where she is. While a House committee has no jurisdiction to exercise enforcement powers outside of Canada, service of a document is not an exercise of enforcement but simply the delivery of a document, which can be done anywhere. The summons cannot be enforced outside Canada, however.
An immediate option for the committee is to report this matter to the House to seek the aid of the House to bring the witness before the committee. In its report, the committee should fully set out the facts indicating the many attempts of the committee to contact the witness, and to serve a summons upon her, and the fact that the witness did not appear before the committee when scheduled to do so.
The report should not fail to also point out that the witness has not been personally served with a summons to appear before the committee, though attempts at service were made.
The Committee report might also express the view that the witness’ failure to appear before the Commitee, as scheduled and, if it is the view of the Committee, that her seemingly evasive conduct touches on the privileges of the Committee and, indirectly, those of the House. As privilege is not within the mandate of this Committee, it cannot itself make a determination that the witness has breached the privileges of the Committee or those of the House or that the witness is in contempt of Parliament. This determination is reserved for the House, usually after the matter has been considered by the Standing Committee on Procedure and House Affairs whose mandate includes consideration of matters of privilege when referred to it by the House once the Speaker determines that prima facie there has been a breach of privilege.
Once a report is tabled in the House, any member of the committee, or the chair on behalf of the committee, can rise in the House on a point of privilege and make the case for finding a prima facie breach of privilege. Usually at the end of his or her presentation, the mover indicates to the Speaker that if the Speaker finds a prima facie breach, he or she is prepared to make the appropriate motion. The usual appropriate motion is to refer the matter to the Standing Committee on Procedure and House Affairs for review and a report to the House.
It is not always the case that matters of privilege are referred to the Standing Committee on Procedure and House Affairs. Upon a finding of prima facie breach by the Speaker, the mover could make a motion calling upon the House to affirm that the witness has breached the privileges of the House and its Committees and is in contempt of Parliament. The motion might go further and declare the witness to be persona non grata within the precincts of the House and to not have access to the precincts, other than for a meeting with the Member of Parliament, until such time as the contempt is purged by an appearance before the Committee.
As the witness has not been served with a summons, a finding of contempt of Parliament would seem premature at this time, although it is not beyond the powers of the House to do so.
In 2003, the privacy commissioner of that time was found in contempt of Parliament for providing misleading information to the government operations and estimates committee. Further action was contemplated against him, but he resigned moments before a motion was made, and so no further action was taken against him--I should say that he apologized and resigned.
In 2008, a senior RCMP officer was found in contempt of Parliament for deliberately misleading this committee in her testimony. No further action was taken by the House.
In this case, the witness is a former officer of Parliament as Public Service Integrity Commissioner.
That concludes my general remarks regarding options, Mr. Chair. I'm pleased to answer any questions that members may have for me.