I choose my words very carefully. This letter from the assistant deputy minister, Department of Justice, breaches the privileges of the House by, in effect, laying for witnesses a false basis for refusing to provide disclosure to the House or its committees after being ordered to do so.
These contemptuous suggestions are found in paragraph 4 on page 2 of the letter. They read:
Of course, there may be instances where an Act of Parliament will not be interpreted to apply to the Houses of Parliament (or their committees). However, that does not mean automatically that government officials—who are agents of the executive, not the legislative branch—are absolved from respecting duties imposed by a statute enacted by Parliament, or by requirements of the common law, such as solicitor-client privilege or Crown privilege. This is so even if a parliamentary committee, through the exercise of parliamentary privilege, may extend immunity to witnesses appearing before it. A parliamentary committee cannot waive a legal duty imposed on government officials.
I feel like reading it again, but the record will stand. This is a clear indication that public servants, government officials and probably even the public cannot be protected by Parliament if they respond to questions at a parliamentary committee.
To me, these words are sad and shocking coming from the Department of Justice and the legal advisers to the Crown. In my view, they undermine the entire structure of parliamentary accountability and the constitutional law I have already outlined.
I am going to give three citations to the House that articulate the powers of the House with reference to the possibility that other public statutes may appear to get in the way. The first is Maingot, second edition, page 20. It states:
...a privilege may not be diminished, prejudicially affected, or repealed save by express statutory enactment to that effect.
Second, Beauchesne, 4th edition, page 96 states:
No general statute or order in council can override the privileges, immunities and powers of the Commons. As the prerogatives of the Crown can only be given away or delegated to others by the consent of the Crown stated in express terms, so the rights, privileges and immunities of the House of Commons cannot be taken away by implication or by vague terms of any statute, but only by the express words of the law or by the express resolution of the House.
In this particular case, House of Commons v. Canada Labour Relations Board, [1986] 2 F. C. 376, the Federal Court of Appeal held that it is a well established principle that an express provision of a statute is necessary to abrogate a privilege of Parliament or its members.
The problem here is not just the assistant deputy minister of justice's being wrong and fully disregarding any reference to parliamentary law and Parliament's constitutional purpose, but it actually describes that government officials would not be absolved from respecting statutory duties if required to testify before a committee.
These are not the words of an ordinary citizen over the counter at Tim Hortons. These are the words and pronouncements, the position, of the Department of Justice over the hand of the assistant deputy minister for the public law sector.
These and other words in this letter show no knowledge or regard for the law of this institution and betray on the part of the department a shocking and unprofessional ignorance of parliamentary law, and that law binds our democracy together. If these words were crafted with others and with ministerial approval, in my view it would constitute a conspiracy to undermine Parliament and the ability of the House to carry on its constitutional functions.
Either way, in simple ignorance or with subversive intent, this document over the hand of the assistant deputy minister of justice constitutes a contempt and cannot be allowed to stand under our Constitution.
I gave written and polite notice of my concern over this opinion to the assistant deputy minister on January 27. There was a polite reply, although it was not a substantive reply.
On the issue of obstruction, I am going to provide three very quick citations on the matter of obstruction of witnesses. The first, and colleagues will forgive me for going back so far in history, is from the year 1700, from the United Kingdom House of Commons, Westminster. It reads:
...that if it shall appear that any person hath been tampering with any Witness, in respect of his evidence to be given to this House, or any Committee thereof, or directly or indirectly hath endeavoured to deter or hinder any person from appearing or giving evidence, the same is declared to be a high crime and misdemeanour; and this House will proceed with the utmost severity against such offender.
That is from the United Kingdom's Journal of the House of Commons, February 21, 1700, volume 13, page 350.
Second, I will bring it a little bit further into the present. This is from Erskine May, 21st edition, page 131:
Any conduct calculated to deter prospective witnesses from giving evidence before either House or a committee is a contempt.
Just to be really precise about this, here is a third quote, from Erskine May, same volume, page 132:
This matter was considered in 1935 by a committee of the Commons which reported that, in its opinion, it was a breach of privilege to give any advice to a witness which took the form of pressure or of interference with his freedom to form and express his own opinions honestly in the light of all the facts known to him; and the House resolved that it agreed with the committee in its report.
The proceedings in 1991 in the justice committee and in this House involving the persons known as Légère and Gingras may for some have raised at that time arguably legitimate questions as to the extent of the power to send for persons, papers and records. Speaker Fraser seems to have allowed for that, notwithstanding his clear 1987 words referred to earlier.
At this time, 18 years later, following the report of the committee that reviewed that subpoena power, the unanimous House order to the government to turn over the unexpurgated documents to the justice committee at that time, the 1999 publication of a book here on this very subject, and the publication of two editions of House of Commons Procedure and Practice, there are no uncertainties, in my view, or questions unanswered.
There is no unclear law as to the powers of the House and its committees.
I would like to reuse, with some licence, the dictum, “There are none so blind as those who will not see, read or learn”. Those who purport to govern and administer Canada must be taken to know the place of the Magna Carta and the events of 1648, as messy as they were; 1689, the Bill of Rights; 1867, our Constitution; and 1982, in our constitutional history. They must also be taken to know the constitutional accountability of the government to this elected House with all its inquiry functions.
Canadians do not elect governments; they elect a House. The breach by that party, the alleged breach that I have brought to your attention here today, is in this light a cardinal insult to this House and all Canadians represented here.
If the breaches were co-ordinated in a conspiracy.... Perhaps I should not use that word in the criminal sense, but if people get together to bring this to us and present this in a certain way, then I say that if they did that, it would be constitutionally seditious and immediately deserving of sanction.
Lastly, there is no place in this country where this issue can be raised and acted on. There is no department of government and there is no court allowed to interfere. There are no other persons who can come into this House to protect the constitutional foundations of this country, only the 308 persons here. So if we do not stand up for our Parliament's role on behalf of Canadians, then there is no one else out there to do it. It is an attempt to undermine the work of Parliament and its committees that I place before the House today. If we do not stand up, those efforts to undermine our Constitution will have succeeded. We cannot let that happen.
I will close in saying that I am, of course, prepared to move an appropriate motion if you find a prima facie case here. I indicate to all colleagues, including those who will rise on this matter today, that there is the opportunity to work in a non-partisan, collaborative way to craft a resolution, to craft a motion that would suit the needs of the House and the people of Canada. I say that because at some point the Speaker will have to make a ruling and there is only so much time we have to work on this. But it is possible; it is not impossible.