Public Accounts Committee on Oct. 21st, 2024

[John Nater, Conservative, Perth—Wellington, ON]

Thank you, Mr. Chair.

Through you, thank you to our parliamentary law clerk for joining us today. I appreciate your advice and guidance on these important matters when it comes to the privileges of Parliament.

Before I get into my line of questions, I want to step back a little and begin by noting that what I'm about to ask has no bearing on our ability to request documents. However, to put some people's minds at ease, could you indicate to the committee what steps you have taken in your office to respond to concerns about security clearances for you and anyone else in your office with regard to documents that are being provided to you?

[Michel Bédard]

Excuse me; there was some noise, so I could not completely understand the question.

[John Nater, Conservative, Perth—Wellington, ON]

Basically, what steps have you taken in your office to protect the documents that may be provided to you, including security clearances for you or members of your team?

[Michel Bédard]

First of all, the documents were produced and deposited with me under the authority of a production order that was adopted by the House, which constitutes the exercise of a parliamentary privilege to compel the production of documents. It is a parliamentary privilege, which, like all the other privileges, is constitutional in nature, and that has been recognized as such by the courts.

Our role under the order was limited to receiving the documents and providing them to the RCMP. We made sure that we limited the circulation of documents, so only two persons in my office with top secret clearance, I and another counsel, had access to documents.

That said, as they were obtained through a production order, the top clearance requirement was not a requirement per se, but we nonetheless took that step.

[John Nater, Conservative, Perth—Wellington, ON]

I appreciate that, and I appreciate the clarity, too, that it isn't relevant, but it is nonetheless an extra step that you have taken in your office.

I want to begin now with this morning's tabling of the recent update.

Included in that report this morning was the comment that redactions were made pursuant to the Access to Information Act. Could you confirm with this committee that those redactions made pursuant to the ATIP are not permitted under the House order, that the House order supersedes and goes beyond any type of restrictions that an ATIP law may put into place?

[Michel Bédard]

As you summarized well, the power of the House to compel the production of documents is a constitutional power that is a parliamentary privilege. It supersedes ordinary law, so it will prevail over the Access to Information Act, the Privacy Act and, for example, solicitor-client privilege.

[John Nater, Conservative, Perth—Wellington, ON]

I don't want to put you in a position of going beyond the focus of this meeting, but it is clear that the Speaker of the House of Commons has found a prima facie question of privilege on this matter because of the failure to produce certain unredacted documents. To see an excuse being used that is clearly not relevant to the documents in the House order is quite concerning from the standpoint of this committee and from the standpoint of Parliament as a whole.

There's a phrase that's often used that Parliament is the “grand inquest of the nation”. Part of that is that we are able to compel the production of documents and require witnesses to appear before this House. From a constitutional standpoint, from the standpoint of the grand inquest of the nation, can you explain to this committee why it's important that those privileges, those important rights of Parliament, be maintained for us to fulfill our duties as parliamentarians?

[Michel Bédard]

It goes to the very raison d'être or reason for parliamentary privilege that the House of Commons, or Parliament in general, has the autonomy it requires to perform its functions to hold the government accountable, to legislate and to deliberate. That's the root of all parliamentary privilege. As part of its function to investigate and hold the government accountable, if a committee or the House requires documents, it can order the production of these documents.

[John Nater, Conservative, Perth—Wellington, ON]

Can you confirm whether a committee has the same power as the House of Commons itself to compel the production of documents?

[Michel Bédard]

The privilege belongs to the House of Commons. It's delegated through the Standing Orders to committees. If there is a breach of this privilege, committees cannot themselves impose sanctions. They have to report the matter to the House.

[John Nater, Conservative, Perth—Wellington, ON]

The power is still there for committees to do that, but we would have to go through the House to impose sanctions.

Going down that route, what sanctions are available to committees to recommend to the House as a whole to hold accountable those who may not be complying with production orders?

[Michel Bédard]

There are various sanctions available. For example, one sanction we saw recently was when a witness at the bar of the House was admonished by the Speaker. In 2011 another sanction was that the House of Commons removed its confidence in the government because they had not provided all of the documents.

Those are two examples of sanctions that are at each extreme of the spectrum.

[The Chair, Conservative, John Williamson]

Thank you very much.

Mr. Erskine-Smith, you have the floor for six minutes, please.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

I am entirely supportive of the idea that Parliament reigns supreme in demanding documents. I sat on a committee that worked alongside the Parliament in the U.K. to pursue a Canadian company, AIQ, which was a smaller player in the scandal around Cambridge Analytica. As the U.K. was dealing with that fallout, we were dealing with a smaller amount of that fallout. We worked hand in hand to make sure that documents were properly disclosed and witnesses were compelled to testify. We were able to work collaboratively as parliamentary committees pursuing parliamentary investigations.

At the same time, with such significant power, in this particular case I'm at a bit of a loss. One has to use that power responsibly. This is where I would welcome your thoughts. We have a situation of a former law clerk, Rob Walsh, calling this an “abuse” of the House's powers. He says it's an abuse because the purpose of the House's powers is to enable the House to carry on its proceedings.

How do you respond to that? What do you make of that?

[Michel Bédard]

As I indicated in an answer to a previous question, the root of parliamentary privilege and the reason for it is to allow Parliament—the House of Commons and its committees—to perform their functions of deliberating, investigating and legislating without any interference from outside, be it the executive or the judiciary.

The order of June 10 has two components. First, there is the component that documents be provided to me as law clerk. The second component is that they be made available to the RCMP. It doesn't go further than that. If you look at the order, you'll see that this is the only thing that is in the order.

What the RCMP could do with the documents potentially could—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Let's pause that. I want to get to that, but I actually want to deal with the powers of the House.

A law clerk, Rob Walsh, is saying that it's an “abuse”, he says, because the purpose of the House's powers is to enable the House to carry on its own proceedings. He's saying that the active intent to request documents for the sole purpose of turning those documents over to a third party is inconsistent with the power of the House, because the power of the House is to enable the House to carry on its own proceedings, not to simply pass that work on to a third party.

What do you make of that?

[Michel Bédard]

As I indicated in my remarks at the beginning of my testimony, I need to be mindful that there is a question of privilege right now before the House of Commons that has been debated for two weeks and that the matter could be referred to the Standing Committee on Procedure and House Affairs as a question of privilege. In the assessment of the question of privilege, if the matter is ever referred to the committee, it could look at the fact that the order is indeed unprecedented and unusual.

Now, if you look at the order—many things have been said about this order, but one needs to look at the text of the order and the paragraphs of the order—you see that it does not require the RCMP to do anything with the documents. It's—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

It doesn't need to, but I want to get to what the RCMP could do or should do. How could these documents be used in any investigation?

We have the RCMP commissioner saying:

...the RCMP's ability to receive and use information obtained through this production order and under the compulsory powers afforded by the Auditor General Act in the course of a criminal investigation could give rise to concerns under the Canadian Charter of Rights and Freedoms. It is therefore highly unlikely that any information obtained by the RCMP under the motion where privacy interests exist could be used to support a criminal prosecution or further a criminal investigation.

If I'm defence counsel and there's been no search warrant approved on reasonable grounds, will my client's charter rights have been circumvented?

[Michel Bédard]

Even before getting to protections under charter rights, one needs to look at the issue as a question of parliamentary law and whether these documents would be admissible in a court of law as documents obtained under the authority of a House order and are directly and closely connected to parliamentary proceedings.

Also, the House and its committees need to consider the potential impact of such an order. Witnesses come to committees and testify. They're told they have immunity while testifying. It will destroy the root of the privilege itself if testimony or documents were, as a matter of principle, referred to the RCMP once the evidence has been given—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I understand that, but let's deal with the charter question as well.

You're a lawyer. In what world could this evidence be admissible, given that it was not subject to a search warrant on reasonable grounds?

My former colleagues at the Canadian Civil Liberties Association are going to point and laugh at this. In what world could this ever be used? It's a clear violation of one's charter rights.

[Michel Bédard]

As I indicated at the beginning, my role under the order was not to proceed to an analysis or evaluation of the documents. I had to receive the documents and make them available to the RCMP. I also had to report to the House on whether or not the order had been complied with. I did not read the documents. I just had to look and make sure I could inform the Speaker about whether or not redactions had been made.

In conducting this role, I was able to see that some documents would have been publicly available. Other documents, in my opinion, would not necessarily raise charter issues.

That said, there are indeed concerns, as I think the RCMP, the Auditor General and other lawyers have expressed. I concur with their concerns that there might potentially be charter issues, because there might be an expectation of privacy for certain documents obtained without any search warrant or production order. Before we get to charter rights, Parliament needs to look at this order and its rights under parliamentary law for obtaining documents.

[The Chair, Conservative, John Williamson]

Thank you.

That is the time.

Ms. Sinclair‑Desgagné, you have the floor for six minutes.

[Nathalie Sinclair-Desgagné, Bloc, Terrebonne, QC]

Good afternoon, Mr. Bédard. It's nice to see you before the committee again.

You said that you reported to the Speaker of the House of Commons this morning about Sustainable Development Technology Canada, or SDTC. Could you give us a quick update on the documents we have received, the ones we are yet to receive, and also on the ones that were redacted by certain departments or were missing pages?

[Michel Bédard]

To date, I have made four reports to the Speaker and they have all been tabled as sessional papers. As you know, my first report, the one in July, was more substantial because it was the first one. After that, the reports were basically updates.

To summarize, so far, eight government entities have produced unredacted documents, and 22 government entities have produced redacted documents. With respect to SDTC, some documents were withheld, while others were redacted.

[Nathalie Sinclair-Desgagné, Bloc, Terrebonne, QC]

What reasons did SDTC and the government entities give for the redactions?