Mr. Speaker, at the time that the original question was raised by the member for Scarborough—Rouge River, I mentioned I would be giving more technical details on a precedent related to this very significant debate on the supremacy of Parliament, this important constitutional question.
When witnesses appear before committee, members of the committee may order that witnesses produce documents related to the topic under discussion. Committees are empowered to order such production under section 108 of the Standing Orders of the House of Commons.
The Privacy Act protects the personal information collected by government institutions. Section 8(1) of the Privacy Act serves as a default provision, stating that personal information under control of a government entity shall not be disclosed without consent. However under our law, the power of the Committee to require the production of these documents is not diminished or affected by any statutory provision unless that provision expressly states so.
That is from Joseph Maingot's Parliamentary Privilege in Canada, second edition, House of Commons of Canada and McGill University Press, 1997, page 20, and Arthur Beauchesne's Parliamentary Rules & Forms of the House of Commons of Canada, the Carswell Company Limited, Toronto,1958, page 96.
This Privacy Act provision does not do so, and does not restrict the Committee’s powers. In fact, and although unnecessary for our purposes here, under section 8(2)(c), the Privacy Act does not apply if the documents are requested by “a person or body with jurisdiction to compel the production of information.”
Parliament is not bound by the Privacy Act, and has a right to have any documents laid before it which it believes are necessary. This principle was established in Canada through the Constitution Act 1867, which passed the “privileges immunities and powers” of the British House of Commons into Canadian law at the time of Confederation.
We can see this in the Standing Committee on Justice and the Solicitor General, Minutes of Proceedings and Evidence, May 29, 1990, Issue 39, page 3; December 4, 1990, Issue 56, page 3; December 18, 1990, Issue 57, pages 4-6; Journals of the House of Commons, December 19, 1990, page 2508; February 28, 1991, page 2638; Debates of the House of Commons, February 28, 1991, pages 1745-6; Journals, May 17, 1991, page 42, May 29, 1991, page 92-99, June 18, 1991, pages 216-7; and the Standing Committee on Justice and the Solicitor General Minutes of Proceedings and Evidence, June 19.1991, Issue No. 4, pages 5-6.
The power to send for records has been delegated by the House of Commons to its committees in the Standing Orders of the House of Commons. A committee’s power to call for persons, papers and records is said to be absolute, but seldom exercised without consideration of the public interest.
We can see that in the Journals of May 29, 1991.
The law clerk provided the committee with a legal opinion on the powers of the committees pertaining to the production of documents. The legal opinion summarized the applicability of statutes to Parliament under the Canadian Constitution and cited a precedent from the Supreme Court of Canada that Parliament has an adjudicative role as the “grand inquest of the nation”. The law clerk concluded:
in summary, constitutional law has priority over statute law, that is, the provisions of a statute such as the Privacy Act are to be read in a manner that is consistent with the constitutional laws of Canada. The Supreme Court of Canada has affirmed that no part of the Constitution, including the Charters of Rights and Freedoms, prevails over any other part of the Constitution, including constitutional powers, immunities and other rights that constitute the parliamentary privileges of the House and its committees.
We can see that in the case of New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) , 1 S.C.R. 319, Canada (House of Commons) v. Vaid , 1 S.C.R. 667.
Accordingly, there can be no doubt that as a matter of law, the power of a House committee to order the production of documents prevails over the seemingly contrary provisions of a statue, including the Privacy Act.