Mr. Speaker, I would like to make some comments relating to the question of privilege that I raised in the House, particularly in rebuttal to the comments made by the Parliamentary Secretary to the Leader of the Government in the House of Commons and the Minister of Justice and Attorney General of Canada. I made the mistake one time as a lawyer in court of calling the presiding justice “Mr. Speaker”, and I hope I will not make the opposite mistake by calling you “My Lord”, but if I do, I hope you will forgive me.
I have a submission to make which is succinct but not particularly brief, because we have before us some very serious matters involving the fundamentals of our democracy. It has to do with the relationship between Parliament and the executive. Sometimes it is said that in Canada we have an elected dictatorship with prime ministers having vast powers even by comparison to the president of the United States of America in that country's republican system. One of the saving graces of our system is the importance of executive responsibility to Parliament and accountability to Parliament. In that context, the role of parliamentary privilege is of paramount importance.
Although your ruling in this case is important because of the nature of the question, I do not believe your decision is a difficult one at this stage. You are being asked to rule whether there is a prime facie case of breach of privilege. In our House since the time of Speaker Michener, there are two guiding principles, which are enunciated on page 73 of O'Brien and Bosc and repeated at the beginning of appendix 15, and they are:
whether, on the first impression (prima facie) the matter raised appeared to be a matter of privilege, and whether the matter was raised as soon as it could have been. Both were to be determined by the Speaker before a debate could proceed.
Mr. Speaker, you have already dealt with the second condition and have ruled on March 18 that the timing of this was not an issue here. As to the first condition, whether on first impression this appears to be a matter of privilege, in my view there can be little doubt.
Much of what has been said by the Minister of Justice and Attorney General of Canada and the Parliamentary Secretary to the Leader of the Government in the House of Commons are matters that are for debate on any motion that might be put to the House, but not on whether this is on the surface a matter of privilege. Nevertheless, extensive argument has been made covering nearly two hours by the two government officials and given the seriousness of the issue, I would like to respond to the points made.
I will be dealing primarily with the question of privilege raised by me in the House, which is very similar to that raised by the member for Saint-Jean, but regarding the question of privilege by the member for Scarborough—Rouge River, particularly the separate question as to whether or not the witnesses at committee may be intimidated and whether that is a breach of privileges of the House, I would refer your honour to pages 114 and 115 of O'Brien and Bosc which indicate:
Just as prima facie cases of privilege have been found for the intimidation of Members and their staff, the intimidation of a committee witness has also been found to be a prima facie breach of privilege.
Mr. Speaker, it goes on with a couple of quotes that you may find useful in dealing with the question of privilege raised by my colleague, the member for Scarborough—Rouge River.
The Parliamentary Secretary to the Leader of the Government in the House of Commons made two interventions, one on March 18 and another on March 31. The Minister of Justice and Attorney General of Canada made an extensive intervention on March 31, lasting some hour and a half. On March 18, the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons raised the objection that the order of the House of December 10 would result in full exposure of all the documents into the public domain without regard to sensitivity and security concerns.
Not only is that not the case given that the order itself refers to Parliament having access to the documents, it was clear from the debate on the point of order raised at the time by the Parliamentary Secretary to the Leader of the Government in the House of Commons that a process was contemplated that would satisfy security and other concerns about confidentiality. In debate on the point of order raised on that date, the member for Vancouver South said, at page 7873 of Hansard for that day:
—there are two opinions from the law clerk that indicate that section 38 does not restrict the right of Parliament and the committee to receive documents.
This is the key point:
The committee may, by its own decisions, create a procedure whereupon if it considers any of the documents it receives as injurious to national security interests or international relations, it may not disclose those documents to third parties or may have a hearing that might be in camera. That is in fact in the opinions that I have received from the law clerk. I would be happy to pass them on, and they have been tabled in the committee.
Clearly these were matters of public record and were available, obviously, to the government members of that committee. It ensures that the committee and the House were well aware that procedures could be put in place to ensure the confidentiality and that this was all known on the day the point of order was raised and the day the debate on the motion took place in the House.
To suggest there was no consideration of security or any other concerns of that nature is just not in accordance with reality and the facts. It was clear from the beginning that there would be a procedure to protect national security interests. Also, the motion was not to table documents but to give Parliament access to the documents in an uncensored form.
The second point raised by the parliamentary secretary was in reference to two rulings made in the House, one by you, Mr. Speaker, on June 8, 2006, and another made November 2, 1983, to the effect that national security, when asserted by a minister, was sufficient to set aside a requirement to table documents cited in debate. Two points should be made in response.
First, the tabling of documents is a practice of the House which, by convention, states that if a member reads from a document, he can be required to table it. It is understandable that such a ruling would be made, as was made by you, Mr. Speaker, and prior to that, because it was necessary to avoid inadvertent disclosure of national security interests because some minister inadvertently read from a document that contained them. This is a refinement of our House practice or convention and is not a rule that is so rigid as to defy an order of the House made and contemplated by the House when such an order is made.
What we are dealing with in the matter before us is a specific House order adopted after debate and after it was ruled to be in order. It was not a simple requirement to table documents referenced in debate, but, rather, an order to make documents available to Parliament, and the precedents raised by the hon. parliamentary secretary are not applicable.
Second, the parliamentary secretary stated in his remarks on March 18 that the House has always accepted the national security justification for withholding papers from the House. This is not so. There is certainly restraint exercised, but there are occasions when Parliament and parliamentarians are privy to documents and information concerning national security issues.
Indeed, during the second world war, the House met in secret on two occasions at least to secure briefings on the war and national security was not jeopardized. Also, committees dealing with the review of intelligence services have had access to important confidential information with appropriate measures taken to ensure security of that information.
On March 31, the parliamentary secretary made a somewhat more brief intervention raising a fourth objection, stating that the order of the House of December 10 was a nullity because the order was not what he called a humble address to the Governor General praying that she will cause to be laid before the House particular documents. The hon. parliamentary secretary quoted O'Brien and Bosc, at page 1121, in support of that submission.
That reference is under the heading “Notices of Motions for the Production of Papers” and suggests that members may choose to give a notice of motion requesting certain papers or documents be compiled or produced by the government and tabled in the House. There is an opportunity to object and if the objection is made, it can be set aside for debate.
With the greatest of respect to the hon. parliamentary secretary, in my view he is totally confusing form and substance, and in the case of this objection, he is grasping at straws.
First, the reference to O'Brien and Bosc concerns an item in routine proceedings called “notices of motions for the production of papers” and relates to the requirements for tabling of documents in the House of Commons. The relevant minister is given the opportunity to object and if he or she does, it may be set over for debate.
Page 470 of O'Brien and Bosc states:
The Speaker is responsible for ensuring that the motion...is in proper form; that is, that it is the appropriate motion to do what is sought to be done.
A motion, if debated and adopted, then becomes an order of the House. That is the nature of routine proceedings for a notice of motion, not very different from a written question on the order paper asking for certain documents.
Even if we were operating under routine proceedings, which we were not, no objection was raised to the form of the motion at that time, and it was ruled by you, Mr. Speaker, to be in order.
The government had a full opportunity to raise objections to the motion that was moved by the member for Vancouver South on December 10, and indeed, it exercised that opportunity, but it made no objection to the form of the order and it cannot do so now.
In any event the distinction between an address and an order is not relevant in the context of the motion that was actually put to the House on December 10, 2009 because we were not dealing with routine proceedings, and in fact it was ruled to be in order.
The point of order that was raised on December 10 is itself quite relevant to the decision that you, Mr. Speaker, are called upon to make on whether or not the non-compliance with the order is prima facie a question of privilege.
By way of a point of order, various members on the government side, the Parliamentary Secretary to the Leader of the Government in the House of Commons, the Minister of Justice and Attorney General of Canada, and the Parliamentary Secretary to the Minister of National Defence, all raised objections to the motion suggesting it was not in order and was beyond the power of the House. In fact, much of the argument made by the parliamentary secretary and the Minister of Justice on the question of privilege, which you, Mr. Speaker, have heard over the last several sessions, were made during the point of order. The whole debate on the point of order is worth reviewing by you, Mr. Speaker, in that regard when you are making your decision on this prima facie case issue.
At the end of the submission on the point of order, Mr. Speaker, you made your ruling, found at page 7876 of Hansard where you quote from O'Brien and Bosc, pages 978 and 979 as follows:
The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the type of papers likely to be requested; the only prerequisite is that the papers exist--in hard copy or electronic format--and that they are located in Canada.
Here is the important point:
No statute or practice diminishes the fullness of that power rooted in the House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.
I will go back to page 136 of O'Brien and Bosc to further this:
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. These rights are as old as Parliament itself. Maingot states:
The only limitations, which could only be self-imposed, would be that any inquiry should relate to a subject within the legislative competence of Parliament, particularly where witnesses and documents are required and the penal jurisdiction of Parliament is contemplated. This dovetails with the right of each House of Parliament to summon and compel the attendance of all persons within the limits of their jurisdictions.
You then make a ruling on the point of order in the following terms on page 7877 of Hansard. It states:
We now have this motion here, and it seems to me that the House has the power to do what a committee can do and then some. A committee could have requested this and demanded the production of these materials. The House can also do whatever a committee can do and then some. Accordingly I feel the motion is in order and I will allow the matter to proceed.
Mr. Speaker, your ruling is not subject to appeal. On page 636-7 of O'Brien and Bosc it states as follows in relation to rulings or points of order:
When a decision on a question of order is reached, the Speaker supports it with quotations from the Standing Orders or other authorities, or simply by citing the number of the applicable Standing Order. Once the decision is rendered, the matter is no longer open to debate or discussion and the ruling may not be appealed to the House.
What we had happening in the submissions by the parliamentary secretary to the government House leader and the Minister of Justice and Attorney General of Canada is an attempt to re-argue the point of order and this is not permissible.
It may be possible to hear these arguments again on the merits of the House adopting a particular motion, which might be brought forward, should you find a prima facie case, but it cannot be considered in the debate that we are having now on whether or not a prima facie case exists in my submission.
However, the Minister of Justice and Attorney General of Canada did make several substantive points concerning questions of privilege, which I will now address fairly briefly because when condensed and understood there are not that many.
He suggested that questions of privilege should be considered in light of two guiding principles and those principles he suggested were first, as well established in law and parliamentary practice, that the principle of necessity must underscore matters of privilege. Second, as parliamentarians we should always be guided by a principle of great restraint when asserting privileges of the House.
With these two propositions, I do agree. They are in fact correct.
With respect to the first proposition, the fact that the principle of necessity must underscore matters of privilege, it was recognized in the Vaid case in the Supreme Court of Canada, paragraph 40 which is quoted in O'Brien and Bosc at page 78 as follows:
The primary question asked by the courts is whether the claimed privilege is necessary for the House of Commons and its Members to carry out their parliamentary functions of deliberating, legislating and holding the government to account, without interference from the executive or the courts.
Nothing could be clearer than that, Mr. Speaker, in terms of the principle of necessity and the parliamentary function of the legislature of the House of Commons to hold the government to account without interference from the executive or the courts.
The motion, to order access to the uncensored documents, is firmly based on the necessity of Parliament to be able to hold the government to account, clearly recognizes one of its important functions and obligations. This is basic constitutional law but is also fundamental to our parliamentary democracy.
The claims of necessity to hold the government to account is, in fact, underscored by the approach which the government has taken with respect to the whole issue of Afghan detainees both in the House and in its failure to abide by the order of the House in producing uncensored documents.
I will give but one example which underscores the necessity principle. The example relates to a revelation made by the Chief of the Defence Staff in December of last year to correct his testimony given the day before, and that was on December 9 I believe, before the defence committee.
In correcting his testimony, he quoted a report on a July 2006 incident where Canadian Forces soldiers had in fact passed over some detainees, people who had been arrested, to the Afghans. He quoted a report from a Canadian Forces section commander the following effect:
We then photographed the individual prior to handing him over, to ensure that if the ANP did assault him, as has happened in the past, we would have a visual record of his condition
In the original document released by the government concerning this particular report, all the report said:
We then photographed the individual.
The rest of the document was blacked out. So anybody reading this document, members of Parliament or anybody else, would say, “Oh, they took a photograph of this individual and then they passed him over”. Well, what was that for? Was it for identification purposes? Was it for a collection of photographs for someone who liked taking pictures? What was it for?
The crux of that whole issue was twofold. First, we took the photograph because we were afraid he was going to be abused “as had happened in the past”. That reveals, first of all, prior knowledge of abuse of Afghan detainees.
Second, it contradicted statements made in this House by the Minister of National Defence on numerous occasions, too numerous to mention, but they could be enumerated, they are all in Hansard, that there was no evidence of Canadian detainees being abused by Afghan authorities.
What do we have here? We have a situation where the necessity principle cries out for Parliament to undertake its work to hold the government to account.
We cannot rely on the decisions made by the government to black out documents in accordance with whatever rules, arbitrary rules or whatever rules they are and whoever is applying them, under the principle of necessity. We cannot devolve from our duty and our obligations to hold the government to account without interference. I could say that the blacking out of these documents is, in fact, interference by the executive in that Parliament is not able to undertake its duties.
In the submission of the Minister of Justice and Attorney General of Canada he also referred to the second principle, which he said we should be guided by as parliamentarians, the principle of great restraint when asserting the privileges of this House. I agree with that in general terms.
I have to agree with it because the dignity of this House and the respect for the place of Parliament demands that we take our privileges seriously. And they are not our privileges, they are not personal to us. They are privileges that we as a collective hold and guard on behalf of the people of Canada, and that you, Mr. Speaker, as the Speaker of this House, are called upon to stand up for and defend against the Crown, against the Monarch as Speakers in the past have done, in some cases at the cost of their heads.
That is why when the time comes for a Speaker to be elected, after he is elected, he is reluctantly dragged up to the Chair to take on the onerous responsibilities of standing up to the Crown and to the government. For that, sir, we commend you for your courage in doing so. We also commend your courage in deciding this important question on behalf of all Canadians.
Restraint is in order. There is no question about that. I think members of this House, at least on the question of production of documents, have shown some restraint. It has been some 143 days, I believe, or 123 days since the order was made. We are getting badgered by the press, wondering how long we are prepared to wait.
We are doing this in a proper way and in a deliberate way. From the member for Scarborough—Rouge River, we heard a very scholarly, deliberate and expansive reference to the authorities going back, not quite into time in memoriam but several centuries. This is an institution and a tradition that we have reason to be proud of because it is our parliamentary democracy.
However, in talking about the restraint, the Minister of Justice and Attorney General talked about a report from the United Kingdom in 1967.
First, I should say that the report was not adopted by the British House of Commons. I also think it is important to note that our own House of Commons Procedure and Practice, known as O'Brien and Bosc, reports on page 67 that the British House of Commons now takes a more narrowly defined view of privilege than was formerly the case, with the emphasis being placed on parliamentary proceedings. Then the change became apparent in 1967 and refers to that report.
That is not something that has taken place here, Mr. Speaker, as was evident from your ruling given on December 10, which I referred to a few moments ago, in which you stated that this House has not restricted its privileges in any way.
The minister went on to quote O'Brien and Bosc's citation of Maingot's Parliamentary Privilege in Canada that:
A genuine question of privilege is therefore a serious matter not to reckoned with lightly...and thus rarely raised in the House of Commons.
I guess I can agree with that in general terms. It depends what is meant by “rarely”. Because if we look at appendix 15 to our O'Brien and Bosc, there are in fact 51 separate decisions by Speakers from 1960 to June 2008 where prima facie cases of privilege were acknowledged by this House and dealt with in various ways. That does not count the ones that were raised and not found to be a prima facie case. So, it may be infrequent, but I would not go so far as to call it rare if we have, on average, one a year which is found to be a genuine question of privilege.
He also talked about the fact that:
In Australia the government routinely relies on crown privilege to withhold confidential information...and a senate committee in Australia acknowledged as much last month--
Now, I do not know exactly what goes on in Australia and whether it is comparable or not, but the quote itself belies the point made by the Minister of Justice and Attorney General because it said:
“there are certain documents which although it may have the power to receive, the Senate ought refrain from demanding”.
That is a suggestion. It does not diminish the powers at all. He then said:
Odgers' Australian Senate Practice also states while the Senate undoubtedly possesses a power to send for papers and records:
“While the Senate undoubtedly possesses this power, it is acknowledged that there is some information held by government which ought not to be disclosed”.
Then the quotation states that this is based on some postulated immunity.
The minister went on with his citation:
“While the Senate has not conceded that claims of public interest immunity by the executive are anything more than claims, and not established prerogatives, it has usually not sought to enforce demands for evidence or documents against a ministerial refusal to provide them but has adopted other remedies”.
Usually. I am suggesting this is an unusual case. I think the debate in this House over the last six months has made it clear that this is indeed an unusual case and both of those authorities recognize that these legislatures, in that case, the Senate of Australia, have the power to do that.
Some of the other questions raised by the Minister of Justice and Attorney General were also raised before by him and by the parliamentary secretary. I have already dealt with them, so I am not going to go into detail. However, they have said that there is no prima facie breach of privilege because the government has taken steps to respond to the December order in a responsible manner.
However, the minister also indicated that he thought it was premature because there was no time limit set out in the order of December 10. There may not have been a time limit set out, but it is pretty clear from the order itself that there was a sense of urgency.
In the preamble it says that “the House urgently requires access to the following documents”, and then in the last paragraph, it says, “accordingly the House hereby orders that these documents be produced in their original and uncensored form forthwith”. As I indicated before, forthwith may not be an exact type of statement, but it certainly indicates that there is some urgency and that it has to be done without delay.
We have had considerable delay and that is not something that should be taken as a serious objection to the motion for a prima facie breach, although it is not a prima facie breach. I think the minister misconstrues that. It is a prima facie question of privilege. The House will then decide what to do about it.
He goes on at length to say that “the question raised is primarily one of debate rather than privilege”. He then goes on to debate all of the issues, many of which were already raised by the Parliamentary Secretary to the Leader of the Government in the House of Commons. I have already dealt with them.
However, there are considerable matters of debate there. I think the debate he talks about is a debate that would take place once a motion has been put to the floor. If you find, as I hope you will and think you should, Mr. Speaker, that there is a prima facie question of privilege, then a motion will be put. I have indicated the nature of the motion that I am prepared to put. It can be debated, amended and considered. All of these questions that were brought before the House by the Minister of Justice can be considered by members in determining whether to exercise the powers that it has and what to do in relation to that question of privilege.
I go back to the beginning of my remarks in suggesting that the question of privilege that has to be determined by you now, Mr. Speaker, is whether there is a prima facie question of privilege, not whether there is a prima facie breach. I think some people have talked about that in their remarks. It is pretty obvious that the Conservatives have failed to produce uncensored documents. The documents that were tabled in the House were heavily blacked out. They were not documents in their uncensored form. Again, that is a matter for debate.
Going back to page 73 of O'Brien and Bosc, it talks about the 14th edition of Erskine May and the modern way of raising questions of privilege. It states:
This description of the British procedure soon became a handy reference seized upon by successive Speakers, beginning with Speaker Michener, as a way to curtail spurious interventions by Members on non privilege matters. It introduced two guiding conditions: whether on the first impression (prima facie) the matter raised appeared to be a matter of privilege, and whether the matter was raised as soon as it could have been.
As I said at the outset, you have already dealt with the second part, Mr. Speaker. The question now is whether this question raised before you appears to be a matter of privilege at first impression. I realize it is a bit late to have a first impression, because we have given all sorts of lengthy arguments about what kind of impression we may have of the original question.
I guess in your deliberations, Mr. Speaker, you will have to go back to the first impression and find whether this does appear, on first impression, to be a matter of privilege. Does it deal with a question of privilege? For me at least, it appears to be beyond doubt that we are dealing with the privileges of the House. How we deal with them is a matter for debate, a matter for motion and a matter for the House to determine once it has been determined that it is a question of privilege.
I think that has been recognized as well by the courts. I referred in my original raising of the question of privilege to the Nova Scotia broadcasting case. It was recognized by the Supreme Court of Canada that once a question of privilege had been raised, it is up to the Parliament to decide what to do with that.
That is where we are at right now. We will await your ruling, Mr. Speaker, after you have the opportunity to review the remarks and the authorities. These are my submissions and I thank you for your kind attendance.