I am now prepared to rule on the question of privilege raised on November 30, 2009, by the hon. member for Windsor—Tecumseh concerning the inability of the Standing Committee on Justice and Human Rights to obtain documents requested from the Head of Correctional Service of Canada in advance of the committee’s clause-by-clause consideration of Bill C-36, An Act to amend the Criminal Code, as is described in the 14th Report of the committee which was presented to the House on November 26, 2009.
I would like to thank the hon. member for Windsor—Tecumseh for having raised this matter. I would also like to thank the members for Abitibi—Témiscamingue and Mississauga South, the government House leader, the member for Notre-Dame-de-Grâce—Lachine, as well as the Minister of Public Safety for their interventions.
In presenting his case, the member for Windsor—Tecumseh gave a detailed account of his attempts to ascertain whether the information which a witness, Mr. Don Head of Correctional Service of Canada, had committed to provide to the committee prior to its clause-by-clause consideration of Bill C-36 on November 16 had indeed been provided.
Although the information requested of Mr. Head, the sole source of this information, had been prepared in a timely manner and forwarded to the office of the Minister of Public Safety, it was not until November 23, 2009, the day that Bill C-36 was considered at third reading in the House that the member for Windsor—Tecumseh received an undated copy of a letter containing the information in question. The rest of the committee received a dated version of the same letter on November 25, 2009, the day after the House finished the third reading debate on the bill.
In alleging interference by the minister's office, either through incompetence or deliberate intent, the hon. member questioned the role of ministers in supplying information to committees and concluded that his work as a member of Parliament had been impeded.
This argument was supported by the hon. member for Abitibi—Témiscamingue, the hon. member for Mississauga South, and the hon. member for Notre-Dame-de-Grâce—Lachine.
On December 1, 2009, the Minister of Public Safety rose in the House to apologize unreservedly for the unwarranted delay caused by his office in transmitting the requested information from Mr. Head to the committee.
Pursuant to Standing Order 108(1)(a), it is a well-established and unequivocal power of all committees of the House to order the production of papers and records. Page 978, House of Commons Procedure and Practice, Second Edition, describes this as “a broad, absolute power”, and at page 979, it states:
No statute or practice diminishes the fullness of that power rooted in House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.
When a committee's attempt to obtain information is unsuccessful, there are essentially three options available. As outlined on page 980 of O'Brien and Bosc:
The first is to accept the reasons and conditions put forward to justify the refusal...The second is to seek an acceptable compromise with the author or the authority responsible for access to the record...The third option is to reject the reasons given for denying access to the record and uphold the order to produce the entire record.
Accordingly, it is then incumbent upon committee members to avail themselves of these options which are designed specifically to ensure that a committee’s power to secure information is not circumvented.
In the case at hand, it is the view of the Chair that the hon. member for Windsor—Tecumseh could have proposed a motion to have the committee report to the House the fact that the information requested had not been received, and request that the House compel the production of that information. House of Commons Procedure and Practice, Second Edition, sets out this process when it notes, on pages 980 to 981:
Since committees do not have the disciplinary power to sanction failure to comply with their order to produce records, they can choose to report the situation to the House and request that appropriate measures be taken. Among the options available to the House is to endorse, with or without amendment, the committee’s order to produce records, thus making it a House order.
By failing to follow this prescribed course of action, the hon. member is asking the House to do that which the committee itself was required to do to remedy this situation. The Chair must note that the committee in question did not come back to the House to request for an order of the House to produce specific papers. As with all claims pertaining to a breach of privilege, the standard which must be demonstrated is whether the member has been impeded in the fulfillment of his or her duties and functions by some action or omission.
As outlined in the 14th report of the Standing Committee on Justice and Human Rights, in the submission of the member for Windsor—Tecumseh, and through the admission of the Minister of Public Safety, there is no denying that the information failed to reach the committee within the specified time. However, it is equally clear that the proceedings on the bill were nonetheless able to continue, with members’ full participation.
Seeing that neither the committee nor the House appeared to share the view of the hon. member that they needed the requested information in order to complete their deliberations on the bill, I cannot find that a prima facie case exists in this matter.
In this case I will dismiss the matter, but I thank the House for its attention to this ruling.