Public Accounts Committee on Oct. 21st, 2024

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

We've seen a lot of influence from misinformation and disinformation and their impact on our democratic institutions. How do you think this kind of a political move impacts our core democratic institutions and their separation, and the rule of law, in how we conduct ourselves and maintain a free and fair democracy here in Canada?

[Michel Bédard]

I won't answer the general question, because it invites.... House officers are impartial, non-partisan, non-political.

I mentioned earlier that parliamentary privileges are for members. They belong to the House committees and all members. It's for the members to assess how they want to exercise those privileges.

There's currently a question of privilege being debated before the House of Commons. The motion is to refer the matter to the Standing Committee on Procedure and House Affairs, and that will provide the appropriate forum to discuss those issues.

[The Chair, Conservative, John Williamson]

Thank you very much.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you very much.

[The Chair, Conservative, John Williamson]

Ms. Sinclair‑Desgagné, you have the floor for two and a half minutes.

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

Thank you, Mr. Chair.

Mr. Bédard, regarding what we were discussing earlier, you had started to talk a bit about the Parliament of Canada Act, which requires the government to provide the documents to the House.

What are the various possible scenarios when you receive documents ordered to be produced by the House of Commons, as is the case here? What can be done with these documents?

[Michel Bédard]

With respect to the order itself, there is no precedent for the House directly ordering the production of documents to be turned over to law enforcement.

In terms of possible scenarios, there are several. I know there's been ongoing debate in the House and in the public domain, which is entirely legitimate. However, if we rely solely on the wording of the current order, nothing prevents another order from being made concerning these documents or an appearance by the Commissioner of the RCMP before this committee to share his assessment of the substance of the documents, to the extent that the RCMP has agreed to review them. This is all within a parliamentary context.

Now, as I was saying, if these documents are expected to be used by the RCMP in an investigation and as evidence in front of—

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

No, I'm not talking about the RCMP. Rather, I want to know how they could be used in Parliament, particularly in committees.

[Michel Bédard]

If we limit ourselves to Parliament, the documents currently exist only in my office and are accessible to only a few people. Since they haven't been tabled in the House, neither the Official Languages Act nor the Standing Orders of the House of Commons apply. These documents exist in only one language, which is entirely consistent with the legislation, and the versions that I provided to the RCMP are only in one language. If the documents were to be referred to any committee or used for any other purpose, they would have to be translated, because most committees have adopted routine motions in that regard.

Furthermore, since I received the documents pursuant to a House order, my hands are tied, and I can only distribute them or do something else with them if I receive a direct order from the House. If the committee asked me to show them the documents, I would unfortunately have to refuse, because I received them under an order of the House and, if I may say so, the committee is a creature of the House and reports to the House.

The situation would be different if the question of privilege were referred to the Committee on Procedure and House Affairs. In my opinion, if the committee were to study the question of privilege concerning compliance with the order of the House, it would mean that it would also have an idea of certain excerpts of documents so that it could conduct its own examination.

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

Okay. Thank you.

[The Chair, Conservative, John Williamson]

Thank you very much.

Up next is Mr. Cannings.

You have the floor for two and a half minutes.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Thank you.

Again, I'd like to try to figure out what the bounds to these powers are.

You said in your letter that when we ask for production of documents, that is a privilege that's unfettered and unbounded. In a sense, the House of Commons is above the laws that it creates for the rest of the country.

I'm wondering if there are laws that do bind those privileges. Are there any laws? If you can answer that, I'll finish on a different tack.

[Michel Bédard]

In terms of laws that will limit the privilege of the House to send for records and papers, there's no explicit law that diminishes or limits this power.

As the privilege is constitutional in nature, the parliamentary privilege is not amended or modified by implication or indirectly. There needs to be an explicit provision in the law that will override the privilege.

There are some privileges—the privilege of freedom of speech, for example—that create some limitations, but those limitations are very explicit. There are none in relation to this power.

We know of some circumstances in which the law of parliamentary privilege does not apply. For example, the House cannot compel the production of Senate documents and the Senate cannot compel the production of House documents, but these are exceptions that arise from the law of parliamentary privilege and not from any acts of Parliament.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

You're saying that there are restrictions within Parliament, but not between Parliament and the rest of the world.

[Michel Bédard]

Also, in terms of restrictions, within Parliament there are always the restrictions that the House or committees will impose on themselves.

As indicated, and you referred to examples earlier, there are documents provided with redaction. It's up to each committee, on a case-by-case basis, to decide whether they want to accept the redactions that have been made and whether to insist on some and not on others and, if they're still dissatisfied, to report to the House.

[The Chair, Conservative, John Williamson]

Thank you.

Do you have a brief question?

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

No, it wasn't a brief question.

[The Chair, Conservative, John Williamson]

I appreciate your candour.

We'll turn now to Mr. Stewart. You have the floor for five minutes, sir.

[Jake Stewart, Conservative, Miramichi—Grand Lake, NB]

Thank you, Mr. Chair.

Thank you, Mr. Bédard, for being here today.

Finance, the Department of Industry and BDC are all sending in redacted documents. These are key departments up for public discussion here with certain hearings and many motions. These are departments that are present at our standing committees on a very regular basis.

Are they complying with the House order when they redact?

[Michel Bédard]

The June 10 order did not contemplate any redactions. Had the House wished for any redaction, it would have been stated explicitly. I think that was the substance of the Speaker's ruling that the matter constitutes a prima facie case of privilege.

The answer is no, there was no compliance.

[Jake Stewart, Conservative, Miramichi—Grand Lake, NB]

What about cabinet confidences? At times, they're being redacted as well. How do you feel about that? Are there any rules being broken there? Can you explain that process?

[Michel Bédard]

Do you mean in terms of...?

[Jake Stewart, Conservative, Miramichi—Grand Lake, NB]

You can speak in generalities.

[Michel Bédard]

In terms of the power to order the production of documents, as I indicated, this power is absolute.

When a document is ordered, there might be a legitimate privacy concern or other legitimate concerns not to provide the document in full. If there are redactions, it's really for the House or committees to decide whether or not they accept the reason that was put forward not to see the information. If the House or committees are still unhappy with the reason put forward, they can take further measures. It could be from ordering a representative to appear at the bar of the House or, as we saw in 2011, withdrawing the confidence in government.

[Jake Stewart, Conservative, Miramichi—Grand Lake, NB]

Thank you for that.

As you know, “Parliament is not bound by the Privacy Act, and has a right to have any documents laid before it which it believes are necessary.” This power “is said to be absolute.” This is how the Liberal chair of this very committee ruled in 2009.

On the ArriveCAN investigation, as an example, in an email discussing an OGGO motion, the CBSA talks about redacting and withholding, based upon the spirit of the ATIP Act.

Could you explain if that is allowed? Can you explain that process and how they would be allowed to redact and withhold documents based on the spirit of the ATIP Act?