Mr. Speaker, a question of privilege arises when a member, a committee, or the House of Commons as an institution has been prevented from carrying out its duties. These privileges include freedom of speech; freedom from obstruction, interference and intimidation; and the right to institute inquiries, call witnesses and demand papers. So important are these privileges of the House that they are rooted in the Constitution.
The special committee on Afghanistan has for some weeks been attempting to exercise its parliamentary functions in relation to hearings on the allegations of detainee abuse in Afghanistan. Evidence was submitted to the Military Police Complaints Commission on the same issue and was suppressed by the government under the guide of sections 37 and 38 of the Canada Evidence Act. The special committee wanted to obtain this evidence using its power to call persons and papers, and so it called forward Mr. Richard Colvin, a senior diplomat, to testify.
The committee also passed a motion on Wednesday, November 25 requesting a number of documents relevant to its inquiries and necessary for the committee's work.
In order to assist its work, the committee first called Rob Walsh, law clerk of the House of Commons, to testify. Mr. Walsh confirmed the privileges of Parliament in relation to hearing evidence, requesting testimony and receiving documents. He confirmed that the Canada Evidence Act did not prevent Mr. Colvin or any other witness from testifying and providing documents to support that testimony. Parliamentary privilege overrules sections 37 and 38 of the Canada Evidence Act.
On the morning of Mr. Colvin's testimony to the special Afghanistan committee, Mr. Colvin received an email from a senior official of the Department of Foreign Affairs and International Trade. In this email DFAIT advised Mr. Colvin in writing that the Government of Canada did not accept the law clerk's legal opinion on parliamentary privilege. I quote from that email:
GoC does not share the Clerk's view of the effect of the laws adopted by Parliament on Parliamentary proceedings and as a Public Servant we trust that you will conduct yourself according to the interpretation of the GoC. Should there be any concerns expressed by members of the Committee, those concerns should be referred to government counsel.
This email makes it clear that the Government of Canada does not accept Parliament's privileges and will not abide by the law clerk's confirmation of these privileges. The Government of Canada in this email essentially attempted to intimidate a witness prior to his testimony in front of the committee. The government also instructed the witness on how he was to answer questions from members of Parliament. As his employer, the Government of Canada is in a position of power over Mr. Colvin, and this is a clear attempt to intimidate.
I should add to this that two days before his appearance at committee, officials from the embassy in Washington, D.C. approached Mr. Colvin on behalf of the Department of Justice to ask for the documents Mr. Colvin was prepared to give to the Afghanistan committee in support of his testimony.
While the Government of Canada has a right to documents that are a product of Mr. Colvin's work, it has been happy for him to keep these documents for a number of years. It was only two days before the committee hearings where Mr. Colvin would, of course, want to produce these documents in support of his testimony, that the government decided to take those documents away from him. This is a clear attempt to frustrate and obstruct the committee's work.
In 2005 the Federal Court of Appeal ruled that parliamentary privileges such as freedom of speech and freedom from intimidation and obstruction extend to witnesses testifying at committees. On page 114 of O'Brien and Bosc's House of Commons Procedure and Practice, second edition, 2009, it says:
In a ruling given on February 20, 1984, the Speaker stated:
A threat emanating from any government department or public corporation to withhold information or cooperation from a Member of Parliament would undoubtedly hinder that Member in the fulfilment of his or her parliamentary duties and therefore constitute a breach of privilege.
Both the emails received prior to Mr. Colvin's testimony and the seizure of documents do not only obstruct the committee's work and deny its privileges but they are attempts to intimidate the witness. In addition, DFAIT instructs members of Parliament to address their concerns about the issue of privilege to the Department of Justice rather than to their own counsel.
I am extremely perturbed that the Department of Foreign Affairs believes that all concerns by members of Parliament on the admissibility of documents to Parliament should be referred to the Department of Justice lawyers. These are lawyers who have already stated that they do not believe parliamentarians have the rights and privileges the Constitution accords them, as I mentioned earlier.
Members cannot receive unbiased advice from the Department of Justice, nor are they obliged to report to the Department of Justice. This is a violation of members' privileges, as it attempts to restrict their right to free speech and counsel. In silencing witnesses, interfering and obstructing a person who is carrying out the lawful order of the committee and denying parliamentarians their rights, the Department of Foreign Affairs and the Government of Canada are in contempt of Parliament.
In addition, the government's attempt to wilfully ignore a constitutionally enshrined right of Parliament to oversee it and hold accountable is deeply worrying. In turning a blind eye to this contempt of Parliament, a precedent is set that allows the government to withhold any evidence from Parliament that it sees as embarrassing under the guise of national security. It also sets a precedent of ignoring rights of parliamentarians and their constituents. This goes right to the heart of the government's accountability to Parliament and, through that, to Canadians.
My colleague, the member for St. John's East, raised this point in the House last week. Quite rightly, Mr. Speaker, you ruled that the matter must first be raised in committee. The special committee on Afghanistan tabled in the House on Friday, November 27, a report which sets out our belief that a breach of our privilege has occurred. I use this report in my argument that this is a prima facie breach of privilege.
Mr. Speaker, I therefore ask you to find a prima facie breach of privilege in this case. If you are prepared to rule that this is a prima facie breach, I am prepared to move the relevant motion to refer the case to the Standing Committee on Procedure and House Affairs.