Mr. Speaker, I am rising to speak to a question of privilege that is currently before this House.
In responding to the points raised by several hon. members on March 18, I want to raise the matter of the authority of the order passed by the House.
As you know, Mr. Speaker, when the House wishes to request the production of documents, this can be done in two ways: by orders that documents be produced, as is the case here; and by the use of a humble address to Her Excellency the Governor General, to use the word of the address, “praying that she will cause to be laid before the House” particular documents. These are equivalent to command papers, that Erskine May says are presented nominally by command of the Queen.
The reason for the use of these two formulae is of constitutional significance.
An address, that is, a request or prayer to the Governor General, as is stated at page 1121 of O'Brien and Bosc:
...is required for correspondence between federal and provincial governments, federal and foreign governments, the federal government and any company, corporation or individual, Orders in Council, and papers concerning royal commissions, the administration of justice, the judicial conduct of judges or the exercise of Crown prerogatives.
The order of the House passed last December 10 is exactly that, an order of the House. It is issued to no named person. It is not an address to the Governor General. However, on the list of documents subject to the order are many documents that fall into the category of papers requiring an address. Without limiting the list, these would include documents relating to the chief of the defence staff--and here I point out that the military is not a department of government; rather, the military is Her Majesty's Canadian Forces under the command of the Governor General--those relating to the Military Police Complaints Commission, documents relating to the proceedings in the Federal Court, and other documents.
Erskine May, in the 7th edition on page 556, describes the general landscape:
Parliament, in the exercise of its various functions, is invested with the power of ordering all documents to be laid before it, which are necessary for its information. Each House enjoys its authority separately, but not in all cases independently of the Crown.... Returns of matters connected with the exercise of royal prerogative are obtained by means of addresses to the Crown.
The distinction between these two classes of returns should always be borne in mind; as, on one hand, it is irregular to order directly that which should be sought for by address; and, on the other, it is a compromise of the authority of Parliament to resort to the Crown for information, which it can obtain by its own order.
It goes on to say:
Addresses are presented for treaties with foreign powers, for despatches to and from governors of colonies, and for returns connected with the army, the civil government, and the administration of justice.
Mr. Speaker, I draw to your attention the ruling of Mr. Speaker Michener on May 6, 1959, found at pages 3378 through 3380 in Hansard. On that occasion, the Speaker had under consideration a notice of motion for the production of copies of letters between a federal minister and a provincial minister. The issue was whether the notice should be an order or an address. Speaker Michener used several authorities to make his decision, and I will quote Speaker Michener's decision:
May, in his sixteenth edition, at page 273, indicates:
(a) that returns may be moved relating to any public matter in which the house or the crown has jurisdiction;
(b) that these documents may be obtained from all public offices and from corporations, bodies or offices constituted for public purposes, by acts of parliament or otherwise; and
(c) that the papers and correspondence sought from government departments should be of a public and official character and not private or confidential.
Campion, to the same effect, in his Introduction to the Procedure of the House of Commons, third edition, says:
Returns are of two kinds, either to an order of the house or to an address to the crown. This distinction, which corresponds to the constitutional origin of the departments, is still rigorously observed. It amounts to this--that information which is wanted from a department which originally grew out of the royal prerogative, such as a department of a secretary of state, is prayed for by an humble address to the crown, whereas information required from a financial department or from a department constituted under statute is demanded by an order of the House.
As a result of his deliberations, Speaker Michener used his authority to alter the notice of motion for an order into a notice of motion for an address. However, I hasten to add that there is no instance, and I stress no instance, to be found where the Speaker has altered an adopted order to make it an address.
It is my submission that the Speaker has no such power once a decision to make an order has been adopted by the House, which is the case here. Nor is it open to the House to create any new privilege.
The prohibition found in section 18 of the Constitution Act, 1867, is but a reinforcement of the joint resolution of the Lords and Commons of 1704. It states, “That neither House of Parliament have power, by any vote or declaration, to create to themselves new privileges, not warranted by the known laws and customs of Parliament”.
In conclusion, my submission is that the December 10 order of the House is invalid insofar as it attempts to order the Crown to produce documents. The House has never asserted such a privilege and the Crown has never recognized such a claim. I have made that point several times in the House to hon. members opposite.
The order of December 10 is a nullity, in my submission, Mr. Speaker, and I ask you to so rule.