Evidence of meeting #145 for Public Accounts in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was parliamentary.
A video is available from Parliament.
Law Clerk and Parliamentary Counsel, House of Commons
Essentially, the redactions were done under the Access to Information Act, because they treated it like an access to information request.
Bloc
Nathalie Sinclair-Desgagné Bloc Terrebonne, QC
Is it just the names and phone numbers and addresses, or were other things redacted? For example, were any full pages or full sections of contracts or emails redacted? Can you tell us a little more about that, please?
Law Clerk and Parliamentary Counsel, House of Commons
Pursuant to the order of the House, I receive the documents, and then I inform the Speaker. I don't have the mandate to look in detail at the nature of the redactions and report them to the Standing Committee on Public Accounts.
If the matter is recognized as a breach of privilege by the House of Commons and referred to the Standing Committee on Procedure and House Affairs, the situation will be different, and the committee will be able to legitimately consider the matter.
That said, if you look at the letters I've received from government entities, which are all appended to my report to the Speaker, they talk about documents, sometimes hundreds of pages that have been withheld, redactions that relate not only to personal information but also to information protected by solicitor-client privilege or other provisions of the Access to Information Act.
Bloc
Nathalie Sinclair-Desgagné Bloc Terrebonne, QC
Okay. Great.
In this context, can you also tell us about the entities that responded, that sent documents, but they were heavily redacted? I think you cited some examples of that in your report this morning to the Speaker. Can you give them to us here at the committee, please? What are those departments, other than SDTC, that you mentioned earlier?
Law Clerk and Parliamentary Counsel, House of Commons
I hesitate to give you a list of government entities that have redacted more, or less, of their documents. My role under the House order was to inform the Speaker so that he could tell the House whether any redactions had been made. When we received documents from an entity, our first step would be to check whether or not there were redactions. So we looked at all the documents to make sure there were no redactions. As soon as we found any, we classified the document as redacted.
I couldn't really give you a list of the entities that are the most delinquent in redactions or the entities that have complied the least with the House order. Otherwise, I think we would be touching on the substance of the order and the question of privilege currently being debated in the House and which could eventually be referred to the Standing Committee on Procedure and House Affairs.
Bloc
Nathalie Sinclair-Desgagné Bloc Terrebonne, QC
When it comes to questions of privilege, I think it's important to remember that this is a constitutional issue, as you said at the outset. Once again, it's always a bit ironic when it's the Bloc Québécois members who remind us of the Constitution, but this is about the primacy of Parliament, the right of Parliament to request documents, which are sent to you first.
Based on the arguments we're hearing, the government is saying that these documents must be provided to the RCMP, whereas all these documents must be provided, first and foremost, to you, the law clerk of the House of Commons, so that we can then proceed to the various other steps, whether we agree or not. The House therefore has the right to request these documents. I think it's important to remember that, from a legal perspective, under the Parliament of Canada Act, Parliament has the right to request that documents be sent to the law clerk of the House. Is that correct?
Law Clerk and Parliamentary Counsel, House of Commons
Under the parliamentary privileges set out in section 18 of the Constitution Act, 1867, and section 4 of the Parliament of Canada Act, the House of Commons has the power to order the production of documents. We've had cases in the past where documents were given to the law clerk and parliamentary counsel first and then to the House.
October 21st, 2024 / 12:30 p.m.
Conservative
The Chair Conservative John Williamson
Thank you very much.
Up next is Mr. Cannings. You have the floor for six minutes, please.
NDP
Richard Cannings NDP South Okanagan—West Kootenay, BC
Thank you.
Thank you, Mr. Bédard, for being here with us today.
I'm going to go back to some of the lines of questioning that Mr. Erskine-Smith was following. I'm new to this committee and trying to grasp the bounds of these powers.
In your letter, you said the power to send for documents is “absolute and unfettered.” In my experience at the House of Commons, when a committee asks for documents, they often come redacted. Sometimes I think we call for you or other law clerks to come and explain why they're redacted.
When it's “unfettered”, does that mean we could ask for all the documents from cabinet, for instance? What about state secrets? It seems very broad.
What are the bounds? If there are no bounds, what are the procedures in place to deal with these documents when they're deposited with the House to make sure that sensitive information is treated properly?
Law Clerk and Parliamentary Counsel, House of Commons
As with other parliamentary privileges that belong to the House and Parliament, the House of Commons has the exclusive authority in the exercise of these privileges, so it's up to Parliament to decide whether or not to exercise its privilege in any given case.
You referred to the fact that you've seen documents in the past provided to other committees that were redacted. It is not unusual for committees to either contemplate or authorize redactions when they order the production of documents. Also, even when there's no such mention in the production order, we will see witnesses or third parties participating in committee proceedings providing documents with redactions.
Once the committee receives documents with redactions, it's for the committee to decide whether or not it wants to pursue the matter further. Sometimes the redactions could, on their face, be minimal. One could tell that only the phone number was taken away or redacted. However, if there are important portions that are redacted or if, for any other reason, the committee wants to insist on the production of documents totally unredacted, it can insist on that in its order. That's oftentimes when we at the Office of the Law Clerk and Parliamentary Counsel can assist committees and explain to witnesses that the power of committees to send for records and papers is absolute and unfettered.
If, after insistence, the documents are still produced with redactions, it's up to the committee to decide whether or not it wants to leave the matter as it is or report it to the House. If it reports the matter to the House, the matter could still be raised as a question of privilege.
In the past, there have been instances when very sensitive documents were the subject of production orders. There are two cases I could refer to. One is the case of the Winnipeg lab documents; in that case, the government was claiming that certain documents were protected under national security. It was the same thing for the second case, the Afghan papers documents, a decade or so ago. In those specific circumstances, Parliament, in a position of working with government, found a compromise so that some members could have access to the documents without compromising the security and sensitive nature of the documents.
NDP
Richard Cannings NDP South Okanagan—West Kootenay, BC
I'm going to go now to this issue of documents being sent on to the RCMP. Mr. Erskine-Smith and our witness, the Ethics Commissioner, mentioned this earlier this morning.
If the House of Commons has asked for these documents for this purpose, is it the case that whether it would be a mistake to send them on to the RCMP is of no consequence to you or to others? In legal terms, that's what you've been ordered to do, so you do that. You don't take into account what that might do to subsequent legal actions.
I ask because we've heard from various people who seem to know their stuff that this might not be the best course of action, yet this is what the House has asked for. Is there any legal reason to say that we shouldn't do this, or do you just say that this is what you've been told to do?
Law Clerk and Parliamentary Counsel, House of Commons
In terms of the instruction in the order, it was very clear and unambiguous that I was to receive the documents and make them available to the RCMP. I did comply with the order, and after I provided the first batch of documents to the RCMP, they have been also made aware that there are other documents that are available for them if they want to pick them up.
Now, the power of the House to order the production of documents is one thing; the RCMP or any other outside body using parliamentary proceedings for their own purpose is another. I echo the concern that has been expressed in relation to the charter and I also raise the fact that as a matter of parliamentary law, these documents were produced under a production order. They are closely connected to parliamentary proceedings, and these proceedings are not admitted as evidence in a court of law.
There's also the possibility that it could eventually discourage witnesses and other parties if they're asked to produce documents by committees or the House and are concerned that these documents could be referred later on to the RCMP.
Conservative
The Chair Conservative John Williamson
Thank you. That is the time.
Beginning our second round is Mr. Cooper. You have the floor for five minutes, please.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you very much, Mr. Chair. Thank you, Mr. Bédard, for confirming that SDTC continues to withhold documents and that they have been submitting documents that they have redacted. Therefore, SDTC continues not to be in compliance with the order of the House.
There are other government entities that have not followed the order of the House, including the justice department. As of the summer, 11,517 pages of documents concerning SDTC have been withheld by the Department of Justice. Is that the case today?
Law Clerk and Parliamentary Counsel, House of Commons
I have received further documents from the justice department that they hadn't provided earlier because they had been redacted or withheld.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you for that. That's a lot of documents that have been withheld by the Department of Justice.
What about ISED? Are there documents that are outstanding from ISED or the Department of Industry?
Law Clerk and Parliamentary Counsel, House of Commons
Yes, indeed, I still have to receive documents from ISED.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Do you have any idea of how many documents you're awaiting from the Department of Industry?
Law Clerk and Parliamentary Counsel, House of Commons
Excuse me. I misheard. Can you repeat the question?
Conservative
Law Clerk and Parliamentary Counsel, House of Commons
Until I receive the documents, I have no idea.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
That's fair enough.
Now, some of those documents that the Department of Industry has submitted have been redacted. Is that correct?