Yes, Mr. Speaker, I just want to make a number of submissions in response to what my hon. colleagues have said.
First, it has been argued that the motion, in this sense, is asking that the law be broken. The motion is not asking that the law be broken. On the contrary, it is asking that the government comply with the law with respect to parliamentary privileges and the production of papers relating thereto.
Second, privileges of Parliament are supreme, overriding, and not subject to ordinary statute law, such as the Canadian Evidence Act or otherwise. The notion that parliamentary privileges are subject to or contingent upon ordinary statute law would not only diminish parliamentary privilege, but would also undermine the authority of Parliament, its representativeness and its protective framework regarding the authority of committees.
Third, the notion that there is a convention that overrides parliamentary privilege in this regard actually runs the other way. The convention is that of the supremacy of Parliament, in that the convention seeks to underpin parliamentary privilege, not diminish it.
Number four, parliamentary privilege is subject to the Constitution in the manner of the Charter of Rights and Freedoms as set forth in the House of Commons v. Vaid Supreme Court case of 2005, 1 SCR 667, but it cannot be exercised in the sense that it diminishes the rights with respect to that which is protected under the constitution.
This brings me specifically to my conclusion in the matter before us. This is not governed by the Vaid case and the charter, because this has the specific carve-out with respect to the overriding authority of parliamentary privilege. I will quote now from O'Brien and Bosc with respect to their complete discussion regarding parliamentary privilege, the authority of committees and the production of papers, exactly on point with respect to the motion before the House. I quote:
The Standing Orders state that standing committees have the power to order the production of papers and records, another privilege rooted in the Constitution that is delegated by the House.
Only if there would be an exception regarding the matter of protecting against discrimination, as the Vaid case said, would there be any issue that comes into place. It is not with regard to the production of papers, which, it is clear, is part of the absolute and authoritative power of the House.
O'Brien and Bosc continue:
Committees usually obtain such papers simply by requesting them from their authors or owners. If a request is denied, however, and the standing committee believes that specific papers are essential to its work, it can use its power to order the production of papers by passing a motion to that effect.
The Vaid case recognizes that with regard to this particular privilege.
The key is the following. As O'Brien and Bosc state:
The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the types of papers likely to be requested; the only prerequisite is that the papers exist—in hard copy or electronic format—and that they are located in Canada.
Here, on a matter of practice also, I again quote O'Brien and Bosc:
In practice, standing committees may encounter situations where the authors of or officials responsible for papers refuse to provide them or are willing to provide them only after certain parts have been removed. Public servants and Ministers may sometimes invoke their obligations under certain legislation--
—as we hear today, or with regard to a national security carve-out—
--to justify their position.
Here O'Brien and Bosc conclude, as I do:
These types of situations have absolutely no bearing on the power of committees to order the production of papers and records.
This is clear. The language of O'Brien and Bosc is unequivocal, who go on to say:
No statute or practice diminishes the fullness of that power rooted in House privileges unless there is an explicit legal provision to that effect.... The House has never set a limit on its power to order the production of papers and records.
This is as clear as it can be from the most authoritative source on this matter.