This week, I changed much of the tech behind this site. If you see anything that looks like a bug, please let me know!

House of Commons Hansard #12 of the 40th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was documents.

Topics

Questions on the Order PaperRoutine Proceedings

March 18th, 2010 / 10:15 a.m.

Regina—Lumsden—Lake Centre Saskatchewan

Conservative

Tom Lukiwski ConservativeParliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, I ask that all questions be allowed to stand.

Questions on the Order PaperRoutine Proceedings

10:15 a.m.

Liberal

The Speaker Liberal Peter Milliken

Is that agreed?

Questions on the Order PaperRoutine Proceedings

10:15 a.m.

Some hon. members

Agreed.

Questions on the Order PaperRoutine Proceedings

10:15 a.m.

Liberal

The Speaker Liberal Peter Milliken

The Chair has received three notices of questions of privilege, all respecting basically the same subject. I will hear the presentations on those questions of privilege now. We will start with the first one I received, and that will be the hon. member for Scarborough—Rouge River.

Provision of Information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

10:15 a.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

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?

Provision of Information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

10:30 a.m.

Liberal

The Speaker Liberal Peter Milliken

Does the hon. member have the unanimous consent of the House to table these letters?

Provision of Information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

10:30 a.m.

Some hon. members

Agreed.

Provision of Information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

10:30 a.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

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.

Provision of Information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

10:40 a.m.

Liberal

The Speaker Liberal Peter Milliken

Order. The Chair has received another letter on basically the same subject matter from the hon. member for St. John's East, and I will hear him now on this point.

Provision of Information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

10:40 a.m.

NDP

Jack Harris NDP St. John's East, NL

Mr. Speaker, I rise today on a question of privilege concerning the House of Commons' right of access to documents it deems necessary to hold the government to account.

As the Speaker of the House will know, the Special Committee on the Canadian Mission in Afghanistan is studying the issue of Afghan detainees captured by Canadians, who may have been subjected to torture, and potentially Canada's complicity in violation of its obligations under international human rights law and other matters.

I will not repeat to the House how vital and fundamental such a responsibility of Parliament is. It is part of our duty, and one of the fundamental roles of the House of Commons, to hold the government to account. In order to assist us in doing that, Parliament has certain rights, privileges and powers.

It is only through this House and the elected members of this House that Canadians are able to hold the government to account. That is a basic tenet of our democracy. In fact, that right is recognized explicitly in section 18 of Canada's Constitution Act, 1867. In fact it has been, I suppose not surprisingly, recognized as a constitutional right in the House, notably on October 31, 1991 by Speaker Fraser, at page 4309 of that day's Hansard.

Also, the Supreme Court of Canada confirmed, recognized and acknowledged that this is a constitutional right and a constitutional privilege of members of the House of Commons to carry out their work. It was recognized by the Supreme Court of Canada in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) found in the 1993 Supreme Court of Canada Reports at 1 S.C.R. 319.

In pursuance of its obligations to carry out the investigation, members of the Special Committee on the Canadian Mission in Afghanistan asked for certain papers and have sought the assistance of this House to get them.

On December 10 this House passed the following motion:

That, given the undisputed privileges of Parliament under Canada’s constitution, including the absolute power to require the government to produce uncensored documents when requested, and given the reality that the government has violated the rights of Parliament by invoking the Canada Evidence Act to censor documents before producing them, the House urgently requires--

--I underline “urgently requires”--

--access to the following documents in their original and uncensored form:

The motion then notes the list of documents requested and follows with:

--accordingly the House hereby orders that these documents be produced in their original and uncensored form forthwith.

Forthwith, I suppose, is subject to some interpretation. However, over three months have passed since that House order was made and not one single document of any kind has been presented to the House in response to that order. In fact, 14 weeks have passed and no response has come from the government, nor has the government put in place, or sought to put in place, a parliamentary process to make these documents available.

There has been no approach, to my knowledge, to other members of the House or to members of the Special Committee on the Canadian Mission in Afghanistan. There has been no attempt to devise a method for receiving these documents by members of Parliament, despite the publicly expressed willingness by me and others to discuss this issue and find a way of bringing them before the House.

Page 475 of O'Brien and Bosc states that orders for the production of documents must be met “within a reasonable time”. Given that the government prorogued the House on December 30 and we did not meet again until early March, the government has had plenty of time to work out a method to make these documents available to the House and to honour the order. The government has failed to do so.

We recognize that the government cannot and should not be expected to dump hundreds or thousands of pages of unredacted documents on the table of the House of Commons. That is not what the House has asked for. It has demanded its constitutional right for a procedure to hold the government accountable for its actions.

We are aware of national security concerns and we have indicated publicly our willingness to discuss these valid concerns and provide a method of protecting them. However, we are not prepared to compromise on Canadians' right to have an accountable government that does not use national security as a catch-all phrase to cover up embarrassing or damaging information.

In a number of press articles shortly after the vote in this House, the Canadian Press for example stated on December 12:

The Conservative government indicated Friday it was prepared to ignore a parliamentary vote calling on it to release uncensored information on enemy prisoners.

The Minister of Justice is quoted as saying:

Parliament exercises significant powers, yet Parliament also appreciates the importance of protecting confidential information.

He said:

The government's position on this matter is clear. We must make every effort to protect sensitive information that if disclosed, could compromise Canada's security, national defence and international relations.

Following the break and following the failure of government to deliver a document to members of Parliament, my colleague from Ottawa Centre wrote to the Minister of Justice on February 3, 2010 asking for the production of these documents. He said:

The production of these documents is essential to the ongoing study at the Special Committee on Canada's Mission in Afghanistan on the transfer of Afghan detainees. Canadians deserve full accountability from their government on the detainee file.

Then he said:

Furthermore, I would like to ask you as the Attorney General whether you will obey this House Order?

That was on February 3 and on March 11, over a month later, there was a reply from the Minister of Justice. In it he did not indicate that any documents would be forthcoming. In fact, he discussed the appointment of Mr. Iacobucci. He said:

Mr. Iacobucci will report to me on proposed redactions, including on whether the proposed redactions genuinely relate to information that would be injurious to Canada's national security, national defence, or international interests.

He went on to say:

Mr. Iacobucci will prepare a report in both official languages that I will table in the House of Commons. That report will include a description of his methodology and general findings.

I have both of those letters and I would ask for the unanimous consent of the House to table those letters.

Provision of Information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

10:45 a.m.

Liberal

The Speaker Liberal Peter Milliken

Does the hon. member have the unanimous consent of the House to table these documents?

Provision of Information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

10:45 a.m.

Some hon. members

Agreed.

Provision of Information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

10:45 a.m.

NDP

Jack Harris NDP St. John's East, NL

Mr. Speaker, the government has appointed a retired Supreme Court justice, Mr. Iacobucci, to review the documents and advise the government on this matter.

As you know, Mr. Speaker, the government has the right to seek advice from anyone it wishes, whether it be Department of Justice lawyers or other lawyers, or retired justices who are continuing to act as lawyers. That is certainly the government's right. In this particular case, the government waited three months to even consult with Mr. Iacobucci.

As far as we are concerned, it is not a major concern to this House that the government is seeking advice. Obviously, we have respect for Mr. Iacobucci. The government has the right of course to consult with any number of people, but it does not change the order of this House. The order is binding, and with consultation or no consultation, the government must obey.

The government's establishment of a separate parallel process outside of parliamentary oversight, parliamentary accountability, or even involvement, does not satisfy the very explicit requirements of the House in relation to the documents. For all intents and purposes, therefore, the engagement of Mr. Iacobucci to give the government advice is irrelevant to this motion.

I would like to address the potential argument that the government may make to excuse its behaviour.

In O'Brien and Bosc, page 83, it states that a breach of privilege includes “deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House...”. It may also involve failing to produce papers formally required by the House without a reasonable excuse, or disobeying a lawful order of the House without a reasonable excuse.

This includes the defacing of documents by redactions, expurgations, black marks or whatever we want to call it, and we have all seen those documents, certainly is destroying or concealing a paper required to be produced by the House, and therefore we expect to get them in their unexpurgated form.

The question is whether there is a reasonable excuse for disobeying an order of this House. It is clear to us that this a breach of the privileges of the House. In fact I would go so far as to say that the government's behaviour is tantamount to contempt for this House. The government may take issue with the phrase “without reasonable excuse”, and I want to address it directly.

There is no reference in our Standing Orders to national security. In fact we see the issue of national security as a red herring. Parliamentarians have themselves acknowledged the valid national security concerns and have repeatedly indicated their willingness to work around them.

The motion that passed in the House in December did not say that the documents must be publicly tabled, placed on the Internet or handed out to the public for all and sundry. The motion allows for flexibility and for an approach by the government to work with the opposition parties and parliamentarians to satisfy the concerns on all sides. It is not acceptable to use national security as an excuse to hide embarrassing information. It is also not acceptable to use it as an excuse when the government has made no attempt to work around it.

There are numerous ways that the documents in question could have been made available without divulging state secrets, and there is no reasonable excuse for failing even to address the issue in the House. These issues have been discussed with the parliamentary law clerk as to how a committee could receive documents and yet protect national security. What we need to do is find a way to acknowledge and respect the privileges of members of Parliament to hold the government to account on behalf of Canadians, while at the same time protect national security.

Mr. Speaker, I firmly believe that there is a clear case for the finding of a prima facie breach of privilege, and if you agree, I am prepared to move a motion. I want to indicate that this motion has already been discussed with other members of the opposition parties. The Bloc Québécois has indicated that it supports our motion in this regard.

It is important to put the motion on the record to understand where I am coming from in terms of what we expect to see happen in order for the House to be able to exercise its parliamentary privileges, and at the same time, find a way to get these documents before it so that we can do our constitutional duty.

The motion would read as follows: “That the House considers that the government's failure to provide the documents specified in the order of December 10, 2009, is tantamount to contempt and therefore orders the Minister of National Defence, the Attorney General and the Minister of Foreign Affairs to be called before the bar of the House immediately and hear the Speaker read this order to them:

That it be an instruction to the Special Committee on Canada's Mission in Afghanistan to adopt rules and procedures for the reception and handling of the documents demanded by the House order of December 10, 2009, in a manner that safeguards national security and other confidentiality requirements while respecting parliamentary privilege, after receiving advice from the law clerk and parliamentary counsel;

That the special committee report these rules and procedures to the House no later than 21 calendar days following the adoption of this order, provided that if the House is not sitting when the report of the committee is completed, the report may be deposited with the Clerk of the House and it shall thereupon be deemed to have been presented to the House, provided that no later than 6 p.m. on the 20th calendar day following the adoption of this order any proceedings before the special committee shall be interrupted, if required for the purpose of this order, and in turn every question necessary for the disposal of the report shall be put forthwith and successively without further debate or amendment; and

That, on the 30th calendar following the adoption of this order, if the government has not provided all the documents to the special committee, which shall receive them on behalf of the House in their original and uncensored form, at the next sitting of this House the first order of business shall be the consideration of a motion that the Minister of National Defence, the Attorney General and the Minister of Foreign Affairs be found in contempt of the House and that such a motion shall have priority over all other business until it is decided in the same fashion as a motion relating to a question of privilege”.

Mr. Speaker, I would be prepared to move that motion if you should find that there is a prima facie breach of the privileges of this House. I would note that there have been consultations on this motion with the table officers as to its form and compliance with parliamentary rules and it is in a form that we believe can be presented to this House.

That is my presentation on parliamentary privilege. I believe there has been established a prima facie breach of privileges of members of this House by the attempt of the government to delay and avoid accountability, and I ask that you so find.

Provision of Information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

10:55 a.m.

Liberal

The Speaker Liberal Peter Milliken

I have received a third notice of a question of privilege on this subject. It comes from the hon. member for Saint-Jean, whom I will now hear speak.

Provision of information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

10:55 a.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

Mr. Speaker, on December 10, 2009, the House passed a motion requiring the government to produce a series of documents, in their original and uncensored form, related to the question of Afghan detainees.

This motion, which I will not read in its entirety, said:

That, given the undisputed privileges of Parliament under Canada's constitution, including the absolute power to require the government to produce uncensored documents when requested, and given the reality that the government has violated the rights of Parliament by invoking the Canada Evidence Act to censor documents before producing them, the House urgently requires access to the following documents in their original and uncensored form—

I will spare my colleagues the list of documents. The motions ends with the following:

—and accordingly the House hereby orders that these documents be produced in their original and uncensored form forthwith.

I should mention that the motion lists documents belonging to the Department of Foreign Affairs, Department of National Defence and the Attorney General of Canada.

I would first like to say that under Standing Order 49, this order of the House was not cancelled by the prorogation and is still valid in the current session.

To date, the government has not complied with this order of the House and it has stepped up efforts to show that it has no intention of following through. The most recent tactic was the tabling by the Leader of the Government in the House of Commons, on March 16, of the government's terms of reference for the review of documents by Justice Iacobucci, which did not include a timetable. I believe this particular gesture was the government's way of signalling to the House that it would not produce the documents. It was also this gesture that convinced me to raise a question of privilege in order to bring to your attention, at the earliest opportunity, a breach of Parliament.

What is at stake is that the government is challenging the law and Parliament's authority to ask for documents, under the pretext that these documents are confidential and that providing them to Parliament would endanger national security and the successful conduct of Canada's foreign relations.

I completely disagree with the government's position because there are ways of doing things properly. I believe that the refusal by the government, particularly the Minister of National Defence, the Minister of Foreign Affairs and the Attorney General of Canada, who are responsible for these documents, to comply with the order adopted by the House on December 10, 2009, strikes at the dignity and the authority of the House.

The authority of the House to require the production of documents is a well-established right. In fact, O'Brien-Bosc states on page 136:

By virtue of the Preamble and section 18 of the Constitution Act, 1867, Parliament has the ability to institute its own inquiries, to require the attendance of witnesses and to order the production of documents, rights which are fundamental to its proper functioning.

In this sense, the rights are part of and protected by parliamentary privilege, as indicated by Maingot on page 190 of the second edition.

The right to institute inquiries is part of the lex parliamenti, which is included in the “privileges, immunities, and powers” expressed in s. 4 of the Parliament of Canada Act and referred to in s. 18 of the Constitution Act, 1867.

I do not have to tell my colleagues that parliamentary privilege is one of the cornerstones of our parliamentary system. Privilege, as May indicates on page 60 of O'Brien-Bosc:

—is the sum of the peculiar rights enjoyed by each House collectively…and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.

Given that Parliament's right to institute inquiries is a matter of parliamentary privilege, it is up to the House, and the House alone, to determine how it will exercise that right.

This is Bourinot's opinion. As early as 1892, on pages 337 and 338 of the second edition of his book, he addresses the issue of the confidentiality of documents.

...there are frequent cases in which the ministers refuse information, especially at some delicate stage of an investigation or negotiation; and in such instances the house will always acquiesce when sufficient reasons are given for the refusal.

He goes on to say:

“But it must be remembered that under all circumstances, it is for the House to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public question is undoubted and the circumstances must be exceptional and the reasons very cogent when it cannot be at once laid before the Houses”.

In short, by virtue of parliamentary privilege, the House clearly has the authority to demand that documents be handed over, and this authority is not subject to common law. Furthermore, it is up to the House alone to decide what documents it should have access to, however confidential they may be, in order to properly carry out its duties.

This is not the government's role, nor that of a government-appointed independent adviser, no matter how respectable and distinguished he may be. To allow the executive branch to decide what documents to disclose would amount to giving the executive branch control over the exercise of legislative power and denying one of the primary functions of this assembly, recognized by the Supreme Court of Canada in the Vaid case, that is, holding the government to account.

Accordingly, given that one of the most vital roles of the House of Commons is holding the government to account and that, in order to do so, it has the right to demand that documents be handed over when necessary, I believe that anyone who does not comply with its orders is therefore in contempt of the House.

O'Brien and Bosc define contempt on page 82 as follows:

—any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands—

Page 240 of Maingot indicates that:

Disobedience of rules or orders is an obvious contempt and would include refusing to attend at the Bar of the House after the House had so ordered, refusing to personally attend and to produce the documents requested by a committee—

The text of the December 10, 2009, motion called on the government to immediately produce a series of documents. On March 18, 2010, it is clear that these documents still have not been produced and that the government is using tactics and manoeuvres to buy time and avoid producing them.

If the government truly had any intention of producing the documents, it would have done so a long time ago. It has had more than enough time to talk in good faith with parliamentarians about coming up with a strategy that would take into account the confidential nature of the documents, which it has not done.

Three months after the motion was adopted, after an abusive prorogation and with threats of contempt hanging over it, the government decides to appoint an independent adviser to review the documents. This is not an act of good faith. It is just another attempt to buy time. The government is acting in bad faith and is showing contempt for Parliament.

I find this situation to be intolerable, and the House must take action in order to preserve its dignity. By refusing to produce the documents requested by an order of the House, the government, more specifically the Minister of National Defence, the Minister of Foreign Affairs and the Attorney General of Canada, is undermining the authority and dignity of the House and must suffer the consequences.

If the Speaker decides that there is a prima facie case for my question of privilege, I am prepared to move the appropriate motion.

I would like to add a nuance to what my NDP colleague said. We worked together on this motion, and I am ready to move it when you deem the time is right.

Provision of information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

11:05 a.m.

Liberal

The Speaker Liberal Peter Milliken

The hon. Parliamentary Secretary to the Leader of the Government in the House of Commons has something to say on this topic.

I will recognize him this moment.

Provision of information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

11:05 a.m.

Regina—Lumsden—Lake Centre Saskatchewan

Conservative

Tom Lukiwski ConservativeParliamentary Secretary to the Leader of the Government in the House of Commons

Yes I do, Mr. Speaker. I appreciate the opportunity to respond to the questions of privilege raised by hon. members for Scarborough—Rouge River, St. John's East and Saint-Jean. You are quite correct in stating that most of what has been heard this morning on these questions of privilege are quite common to a central issue.

I would like to make a few general comments with respect to some of the comments made by the member for Scarborough—Rouge River in his intervention. Initially, I should also say the questions of privilege are fundamentally and historically raised at the first opportunity. This has generally been an accepted requirement of the House. I would first argue that these questions of privilege have not been raised at the first and the earliest opportunity, since they are referring to an order of the House of December 10 and now we are well into the month of March. However, Mr. Speaker, I would trust your judgment on giving that some consideration.

With respect to one of the first points raised by the member for Scarborough—Rouge River, he seemed to take some issue with comments and statements made by the Minister of National Defence. I would point out that words of a minister are really matters of debate and, quite frankly, differences of opinion are matters of debate in the House, not a question of privilege.

The second point raised by the member for Scarborough—Rouge River was also raised by the member for St. John's East and the hon. member for Saint-Jean, and that is the crux of the arguments on production of documents surrounding the Afghan detainee issues and whether Parliament has the right to ask for those documents to be produced.

I would like to make an initial response to all these questions of privilege and raise some points that I think should be taken under very careful consideration, and I trust you will, Mr. Speaker.

The immediate question for decision is whether there is a prima facie evidence of a breach that would justify setting aside all other business, consider such a motion as might be allowed by the Speaker and considered by the House. It is by respectful submission that, at this time, such a finding is not justified.

The most critical point for your consideration, Mr. Speaker, and is the crux of this issue, is the order of the House, passed on December 10, listed a considerable catalogue of categories of documents and ordered that, “accordingly the House hereby orders that these documents be produced in their original and uncensored form forthwith”.

However, and this is the critical point, the order of the House made on December 10 made no provision to protect the security of these documents as outlined in the December 10 order of the House. No protection of the security of these documents was made in that order. Were these documents to be produced right now under this order, these documents would be immediately and fully in the public domain, with no consideration for the sensitivity or the security concerns contained in those documents.

I would also like to ask a question of all three of my hon. colleagues who raised these questions of privilege, and that is simply this. Could they ever give an example where the House has compelled the government of the day to produce documents that endangered national security or the security of our military? The answer is quite clearly, no. They are asking for that now, with no provisions in place to protect the security of such documents.

In fact, I would point out in his intervention the member for St. John's East talked about the Afghanistan committee putting in place security provisions to protect security of these documents. Why has that not been done now? There is much more work to be done on this issue, yet although the member for St. John's East seems to indicate the security provisions must be made and must be provided, nothing has been done to date. Yet he is asking for documents to be produced without provisions to protect the security of these documents and to protect the security of our military and of our country.

Every member of the House knows and fully understands that the issues of military and diplomatic security are at issue concerning the release of these documents. I do not think there is any question of that.

Let me just quote some comments made by the Attorney General on March 5 of this year. He said:

The government acknowledges that it is appropriate that decisions on the disclosure of information in these circumstances be reviewed independently from government. This will ensure that parliamentarians will have as full and complete access to government information as is necessary to perform the function of holding the government to account, but no one wants to cause injury to Canada's national defence, international relations or national security.

The security of the nation and the conduct of international relations are fundamental to the constitutional duties of the Government of Canada.

Members will understand that there are matters which governments must keep confidential in order to protect the public interest, even in the freest and most open of societies.

Nonetheless, as I have stated, the government acknowledges that it is appropriate that decisions made by officials on the disclosure of information in these circumstances be reviewed independently from government.

I am pleased to inform the House that the government has engaged an eminent jurist and legal expert to undertake an independent, comprehensive and proper review of the documents at issue, including the information that was proposed to be withheld from release.

A review of statements by the member for Vancouver South, who put forward the December 10 motion, shows that he is now in favour of a public inquiry, not the unrestricted publication of the documents in question. There is obviously an ongoing process under way to find a resolution to the conflicting need of the House for information and the requirement to preserve military and diplomatic security.

As recently as June 8, 2006, Mr. Speaker, you ruled that national security, when asserted by a minister, was sufficient to set aside a requirement to table documents cited in debate. That was supported by an earlier ruling found at pages 28627 to 28631 of the Debates for November 2, 1983. I would point out that you went on to say that the Speaker had no role in reviewing documents in this circumstance.

As you know, Mr. Speaker, there is an ongoing process to prepare documents for the House. Officials of the Department of Justice and Justice Iacobucci are engaged in preparing documents. The House has always accepted that national security justifies withholding papers from the House. In fact, once again, the member for St. John's East indicates that they are not asking for everything to be produced and to be made public. Our government has put in place a process to protect the security. Let that process work.

In this instance, our government is taking unprecedented measures to disclose what can be disclosed. We have put in place a review process by a person of expertise, experience and repute. I submit that these measures indicate that the government is making every possible effort to comply with the order of the House of December 10, consistent with the competing requirement to protect the security of our forces and our international obligations. The Minister of Justice has kept the House well informed of all of our efforts in this regard.

The government will want to respond in greater detail to these points raised by my three hon. colleagues. I would ask for that opportunity at a later date.

Provision of information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

11:15 a.m.

Liberal

Bob Rae Liberal Toronto Centre, ON

Mr. Speaker, I do not want to burden your ears too much, but in light of some of the comments that have been made, I want to make a couple of points to, I hope, clarify the situation. Obviously, it has been a matter of some contention over the last several months and a matter of some emotion between members. That is understandable, with the many allegations and accusations that have been made flying in almost every conceivable direction.

With the comments made by my colleague and also by the member for St. John's East and my colleague from the Bloc, with whom I have served with on the Afghan special committee, as well as my friend from Scarborough, whose leadership on this issue for many years has been outstanding, it seems to me, Mr. Speaker, there are a couple of issues.

It is a serious mistake for the government to believe that what is being asked or sought is simply that documents be laid holus-bolus on the table without any regard for national security and, to borrow the phrase from my colleague from Regina, looking at the question of the issue of protection of the military.

The protection of the military and questions of national security are matters of utmost importance to all members of the House, certainly to members of our party. What we believe can be done is not beyond the ability of the House. It is done in many other parliaments. Indeed, there are circumstances under which it has even been done in this House. It is perfectly possible for unredacted documents to be seen by members of Parliament who have been sworn in for the purpose of looking at those documents.

There is a clear difference of opinion between the opposition and the government. The government believes the appointment of Mr. Iacobucci as its special counsel provides a suitable implementation of the House of Commons resolution in December. We believe it does not, that in fact there is a legitimate issue still as to how the House can find a way to implement the resolution without having a negative impact on the issues which the government has raised as concerns.

It was for the purpose of making that one intervention, Mr. Speaker, that I wanted to rise to say that there really is a misunderstanding on the part of the government, and I take it in good faith that it is not deliberately misinterpreting what people are saying.

We are saying that it should be possible for the House to find a means to implement the resolution without having a negative impact on national security. The government is saying that the route it has taken is the only possible or the best possible implementation of the House resolution. That is a legitimate difference of opinion. That is why you are the Speaker. You are asked to make these judgments and to make these determinations, and we look forward to the judgment call that you make.

It is an important question as to the rights of Parliament to be able to deal with documents. I want to endorse the comments that my friend from Scarborough has made with respect to the question of the letter that went out from the Department of Justice, which could only be interpreted as having a chilling effect on people who are appearing before a parliamentary committee. I think it is entirely inappropriate.

Provision of information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

11:20 a.m.

Bloc

Pierre Paquette Bloc Joliette, QC

Mr. Speaker, I will be brief.

I would like to bring up two points. First, the government representative said that we had not raised this question of privilege at the earliest opportunity. I remind members that Justice Iacobucci's mandate was presented to the House on Tuesday. That was the first time we had seen it. In the hours that followed, we prepared a motion, of which you have a copy, Mr. Speaker. We also worked with the NDP. It seems as though we acted as quickly as possible.

Second, I also remind the House that Justice Iacobucci's mandate has no time frame.

This morning, Amnesty International announced that it could be up to two years before the Special Committee on the Canadian Mission in Afghanistan has access to the documents. I am sure everyone will agree that a lot can happen in two years, and we need to find the truth as quickly as possible.

I will conclude by saying that the government is being completely unreasonable if it does not accept these proposals. The Bloc worked with the NDP to create a motion to maximize cooperation between the opposition and the government.

I remind members that the second paragraph of the suggested motion states:

That it be an instruction to the Special Committee on Canada's Mission in Afghanistan to adopt rules and procedures for the reception and handling of the documents demanded by the House order of December 10th, 2009, in a manner that safeguards national security and other confidentiality requirements while respecting parliamentary privilege, after receiving advice from the Law Clerk and Parliamentary Counsel;

I think that is reasonable. It was also brought up by the Liberal member.

I trust your good judgment, Mr. Speaker, as you review our question of privilege.

Provision of information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

11:20 a.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

Mr. Speaker, I know that eventually at some point debate on this issue will be cut off if we seem to be going in circles, but I just want to respond to comments made by my colleague from Toronto Centre who spoke of the fact that security provisions can be put in place.

I would point out again, as I did in my initial submission, that the order of the House of December 10 contained no such security provisions. The order of the House that was passed on December 10 requested that documents be produced immediately with no respect and no consideration to security concerns.

That is the crux of this argument. How can documents be produced that may endanger our national security and the security of our military or our international diplomatic efforts?

Once again, the member for St. John's East talked about the special committee on Afghanistan proposing security measures be put in place. It has not done so, and yet it is asking for documents to be produced anyway.

How can the government possibly protect its national security interests and produce documents in this matter? It simply cannot. There has to be much more work done to ensure the integrity of these documents, to ensure that national security interests are protected.

The order of the House of December 10 does nothing to consider that very serious consequence which may occur if these points of privilege are accepted.

Mr. Speaker, I gravely implore you to consider these points when making your judgment.

Provision of information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

11:20 a.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, just quickly, I am assuming, given the fairness that you always treat these arguments with, that the government will be allowed further argument on this.

I am standing only to request that we be given the opportunity to respond, particularly on the issue that the parliamentary secretary has now raised, both in his initial statement and now, with regard to the whole question of national security.

I will only make this one point and would want to reserve our right to argue it more extensively. The argument over national security is one that, given the rights of Parliament, is not to be determined solely by the government. If it were really serious about that argument, there would have been extensive discussions and negotiations after the motion and resolution of December 10.

We have now provided for a system that we believe would be acceptable to the opposition parties, the majority of parliamentarians, in the resolution that was heard from my colleague from St. John's East.

Mr. Speaker, I simply will terminate by asking you to give us the opportunity to respond once the government has come back with its full argument.

Provision of information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

11:25 a.m.

Liberal

Larry Bagnell Liberal Yukon, YT

Mr. Speaker, I will be very brief. We, too, of course, would like the opportunity to respond when the government comes back.

Following up on what the member for Windsor—Tecumseh said in support of the member for Toronto Centre and the motion from the member for Scarborough—Rouge River, I want to make the point regarding security and all other national issues, access to information, et cetera, that there is the supremacy of Parliament over any rules related to these.

It is the responsibility of Parliament, not just the government, as was just mentioned. There are precedents which we will bring up in further debate which have ruled on the primacy of Parliament in these issues, not in the primacy of something that would inhibit Parliament to that information.

It would be the responsibility of Parliament to protect national security, but it still has the primacy of access to information that it needs on this issue and any other issues of major national importance.

Provision of information to Special Committee on the Canadian Mission in AfghanistanPrivilegeRoutine Proceedings

11:25 a.m.

Liberal

The Speaker Liberal Peter Milliken

The parliamentary secretary, in his submissions, requested that the matter be deferred for a while to permit ministers who have submissions on the issue to make them to the House, and I am quite prepared to do that.

I will deal with one issue at the moment, and that was the question of timeliness of the request to raise a question of privilege in the House. I note the hon. member for Scarborough—Rouge River filed his request before the session of the House began, which was the first opportunity he could do that following the prorogation of the previous session, and therefore the fact that the order could not be complied with and that tablings might not be done during a prorogation.

Accordingly, in my view there is no lack of timeliness in this case. The hon. member for Scarborough—Rouge River had not made his presentation in the House because I asked him to hold off so we could see what would happen with the inquiry that Mr. Justice Iacobucci is carrying out.

When the matter came to a head yesterday and everyone else indicated they would go ahead, I indicated I would hear arguments from all three members who had submitted letters on this point, but I do not believe timeliness is an issue, and accordingly, I will dispense with that one now.

I am prepared to hear other arguments on this matter from the ministers who were mentioned in the questions of privilege raised. I will then come back to the House with a ruling.

I thank all honourable members for their comments today, which will be of great assistance in dealing with this difficult matter.

The House resumed consideration of the motion for an address to Her Excellency the Governor General in reply to her speech at the opening of the session, of the amendment and of the amendment to the amendment.

Resumption of Debate on Address in ReplySpeech from the Throne

11:25 a.m.

Liberal

The Speaker Liberal Peter Milliken

When this matter was last before the House, the hon. member for Burnaby—Douglas had the floor. There are five minutes remaining in the time allotted for his remarks. I therefore call upon the hon. member for Burnaby—Douglas.