Mr. Speaker, I am happy to be able to take up this matter with the House this morning. It is probably going to take a few minutes. I hope members will bear with me. I gather there are other colleagues who wish to do the same.
Mr. Speaker, I brought notice of this question of privilege to you on February 18, prior to the resumption of the House. The issue stretches back to approximately December 1, when I rose in the House to bring to the attention of the House the words of the Minister of National Defence in response to a question in question period. They were words that I believed would potentially obstruct witnesses before our committees.
I brought three matters to your attention. Today, I am going to refer to one as a prelude, the one dealing with the words of the Minister of National Defence. Second, there is one organic matter that I believe is a breach of our privileges, involving correspondence from the Department of Justice to our law clerk and parliamentary counsel here in the House of Commons.
In all three instances, but technically in just two here today, these actions taken or not taken here, in my view, impugn, obstruct or derogate from the inquiry powers of the House as an integral and core function. It is part of our constitutional legislative function here as grand inquest of the nation.
No citation should be needed here, but for the record, and I am not going to quote them, I will simply list the three citations: the words of Edward Coke in the year 1671, from the Institutes of the Laws of England, volume 4; Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, 1916, page 70; and the Supreme Court of Canada in Canada v. Vaid, S.C.R. 2005, page 20, not that any court validation is constitutionally necessary for us here.
These benchmarks reflect 340 years of bedrock constitutional history. I have selected these dates to show the length of time this constitutional provision has remained the same. It has not varied for 350 years. If anyone thinks it has, I invite them to find a precedent anywhere in the developed world where there is a parliament.
Initially, these laws were developed in Westminster. I have gone back 350 years to show one of the routes taking us right into modern Canadian law, with that citation from the Supreme Court of Canada. I am not making this up as I go along, and we in Parliament are not making this up as we go along. This is a three-century bedrock constitutional power.
One of the powers and privileges we have here in this inquiry function is the power to send for persons, papers and records. The powers among those described in the Erskine May classic definition of privilege are in edition 21 on page 69. I will not read them, as members have heard them hundreds of times.
The power is also codified in our House Standing Orders, specifically in Standing Order 108(1)(a). The key words are that we are “empowered to examine and inquire” and that we are empowered to send for “persons, papers and records”. These are also bedrock and elementary House of Commons 101 constitutional law principles. If anyone disagrees, again, let them find a precedent or let them make an amendment to our Canadian Constitution.
I also need to make two quick reference points just to shape my remarks. The power to send for persons, papers and records exercised by the House and its committees is whole, complete and unabridged.
The delegation of this complete power from the House to its committees in Standing Order 108 is full and unconditional. There are no words, phrases, precedents, events or statutes that distinguish this power in the hands of committees from that of the House itself, and I cite the words of Speaker Fraser on March 17, 1987, when he said:
I think it is important to emphasize, in case there should be any misconception in any quarter concerning the powers and functions of parliamentary committees, that committees appointed by this House are entitled to exercise all or any of the powers that this House delegates to them. These powers include the right not only to invite witnesses to appear but to summon them to appear, if necessary.
If there is non-compliance, a separate enforcement procedure or punishment procedure or coercion, usually a contempt matter, can be initiated in the House, sometimes relying on the Sergeant-at-Arms. Our committees would not usually have this enforcement power on their own, unless the House were to pass a statute specifically for that purpose.
This separation of the subpoena power from the enforcement, coercion and punishment power and procedure has confused some, even some of us in the House. By analogy, the House of Commons and Parliament pass and adopt criminal laws, but we do not enforce them. The police and the courts do. However, this does not mean that Parliament does not have the full power to pass the criminal laws in the first place. An order issued pursuant to a power to send for persons, papers and records is full and complete and binding, and failing compliance, enforcement and punishment can be pursued and has been.
I note that many of our administrative tribunals and our cousins in the American congressional houses and committees also have a similar separation of the enforcement procedure, which they have assigned to civil or federal courts. This assignment in no way derogates from the fullness of their subpoena powers.
My second point of reference is that many Canadian statutes refer to bodies or agencies that have a power to compel attendance or the production of documents. This House of Parliament under our Constitution, of course, is not included among those references. As far as I can determine, this House and its powers are distinct from every other organ of government, and no statute is needed to provide for those powers and no statute or constitutional provision abridges those powers and the associated privileges, other than has been done explicitly in the Parliament of Canada Act. Such statutory references as compelling the production of documents or attendance do not describe Parliament and are not helpful for analysis or comparison.
What are the breaches? First, the words of the Minister of National Defence, I would say, describe a prelude to the breach. The Minister of National Defence declared in an answer in question period on December 1, 2009, that:
There is a mandatory obligation on public officials to ensure that when information is released, it is in compliance with the Canada Evidence Act.
....With respect to information, I think most people, even the hon. member, can understand that we want to protect operational matters, information received from other countries, other sources, confidential sources, national security. Those are the reasons these documents are being examined by the Department of Justice.
I thought those words constituted an attempt to mislead, or that they actually do mislead, the public and the House on the obligations of witnesses, including government witnesses and all persons, to respond to orders to appear and to answer questions or provide documents to our House committees.
The minister says those documents can only be released to the Special Committee on the Canadian Mission in Afghanistan under the provisions of the Canada Evidence Act. That is what he said to the House. More importantly, the words are simply not just wrong and misleading but also, coming from a government minister and Minister of National Defence, they have, in my view, the direct effect of obstructing House and committee witnesses by intimidating the witnesses, especially armed forces personnel and public servants, from complying with House requests and orders.
He says that statutes of general application prevent persons from complying with orders of this House for documents. However, under our law and our constitution, persons under a House of Commons order are not prevented by statutory provisions from complying, and all of our witnesses, I repeat, all of our witnesses, have the full protection of our Houses and constitution-based privileges and no such procedure may be taken up or questioned in any Canadian court.
I submit that these words constitute, whether through misunderstanding, ignorance or malice, I am not sure, a slander of our parliamentary core powers, and they serve directly or indirectly to undermine our country's constitutional order, which gives this House the obligation to hold the government to account.
I am going to move to the second item now.
In a letter dated December 9, 2009, the assistant deputy minister, Public Law Sector, Department of Justice, wrote to our law clerk and parliamentary counsel. That letter and the reply by Mr. Walsh, our law clerk, were made available to me at my request following their circulation to a member or members of the special committee I referred to earlier.
The letter outlines the position of the Department of Justice on the application of acts of Parliament to officials of the Government of Canada.
I would table both these letters with consent or simply make copies available to the Chair.
Do I have consent to table the letters?