Mr. Speaker, I am rising on a point of order that involves one of the more serious matters that I have had to deal with in my 11 years here in the House because of the potential risk that it poses to the relationship the legislative, administrative and judicial branches play in our Parliament.
Mr. Speaker, I am hoping that by the time I have concluded my argument you will agree with me that the assessment of our rules have been breached and that you will take appropriate action to ensure that the Standing Orders and the procedural sources higher than those that are in place are respected, not only by this chamber but also by the committees of this place.
I should start by saying that there are two potential orders that I will be seeking. The first one is the more appropriate one but clearly the more extensive one, which would be to direct the committee to cease the study it has initiated. I will speak to that more specifically in a moment. The alternative, which I would ask you to think about, would be, at the very least, that the committee be directed to suspend its study until such time as the courts, including the Appeal Court, and potentially even the Supreme Court of Canada in this case, have ruled on this issue.
It has been said in the House on more than one occasion that committees are their own masters. They are in control of their process. However, a deeper examination of our Standing Orders and the House of Commons Procedure and Practice second edition, commonly called O'Brien and Bosc, reveals that the committee's freedom to do as it chooses is limited by firm boundaries. Indeed, O'Brien and Bosc, at page 1047, states:
...freedom committees normally have to organize their work as they see fit and the option they have of defining, on their own, certain rules of procedure that facilitate their proceedings.
However, on page 1048 the text reads:
These freedoms are not, however, total or absolute.
Mr. Speaker, I would ask you to take particular note of this point because I will return to it on a number of occasions throughout my remarks today. O'Brien and Bosc at page 1048 states:
At all times, directives from procedural sources higher than parliamentary committees (Constitution;--
I would suggest that includes constitutional convention, which is part of what the argument is here today. It goes on to state:
--statutes; orders of reference, instructions and Standing Orders of the House; and rulings by the Speaker)--
Both the Constitution and, in this case, a ruling by you, Mr. Speaker, would certainly have the authority of overriding the determination that has been made by the committee. It goes on to state:
--take precedence over any rules a committee may adopt.
The end result of that determination by O'Brien and Bosc is that you, as the Speaker of this House, have, at any given time, the authority to overrule the committee.
It is quite recognizable by everyone in the chamber and anyone who has been in Parliament for any length of time that the Speaker would only do that on rare occasions. I would submit that this is one of those rare occasions. The Speaker may be reluctant to deal with this given the long-standing practice of intervening only on very rare occasions.
The other point that often comes up at this stage is whether the Speaker should intervene when there has not been a report from committee. I recognize that there has been no report from committee. Given the circumstances of what is going on in that committee, there will never be a report from the committee on this point.
However, as has often been the case, the Speakers will reserve judgment on committee members until the report has been sent to the House. There are exceptions to that general rule.
As Speaker Fraser said on March 26, 1990, at page 9756 of the Debates, the practice of waiting for a report from committee before taking up a matter in this House is: “
...not an absolute one and that in very serious and special circumstances the Speaker may have to pronounce on a committee matter without the committee having reported to the House.
In that context, it is important that I rise on this point of order. It is as a result of actions taken by the Standing Committee on Access to Information, Privacy and Ethics, which I will refer to henceforth as “the ethics committee”. I feel that the rules governing the procedures and practices of this place are being tested, challenged and, in fact, are being infringed upon if we look at some of the opinions we now have on this matter. It is certainly putting the committee and this House in a dangerous and unprecedented position. It is testing long-standing conventions and, I would argue, that we are breaching those long-standing conventions.
Through the actions of the ethics committee and despite the protests of two of the three opposition parties represented on the committee, it has attempted to throw out decades of parliamentary sub judice convention, which requires this place to respect the independence of the court. It goes beyond saying that we do have the three branches. While they are independent of each other, they sometimes overlap but the fairly clear guidelines among those three branches is a long-standing convention. We respect, adhere to and do whatever we can, regarding all three branches, to not cross that line between the three branches and usurp authority that lies in one of the other branches.
I believe the committee is also trying to distort the constitutional principle of the separation of powers in terms of that responsibility, in particular here, not between the administration branch and the other two, but between the legislative and judicial branches. I would submit that both of these rules supersede the rights of committees. We had a huge battle in the last Parliament over the rights of parliamentarians to access information with regard to the Afghan detainee documents and material. There are clear rulings on that but it is not an absolute and those other conventions that I just mentioned supersede.
I believe the breaching of those other rules requires action on your part, Mr. Speaker. The only authority to overrule the committee lies in your hands. In terms of the specifics of the case, I will not be able to give you as much detail as I think would be useful to you in making your decision because a good deal of what has transpired here has been in camera. The information I will be giving you will only be that information that has been in public and not behind closed doors.
On November 1, the government used its majority on the committee to quickly move in camera on a motion by the Parliamentary Secretary to the Prime Minister and to the Minister of Intergovernmental Affairs. The motion was to compel the production of documents that are clearly the subject of ongoing litigation before the federal Court of Appeal. The purpose of producing the documents, according to the adopted motion, was to have the ethics committee, and this is extremely important, determine and assess exclusions. That is exactly what is before the federal court at the present time. Those are documents under section 68 of the Access to Information Act.
As a result of this meeting and the events that transpired in camera, the New Democratic and Liberal members of the committee felt that they could not continue their participation in the committee's work until they had the benefit of a legal opinion from the House of Commons Law Clerk, Mr. Robert Walsh. He has been in that post since 1999 and is recognized as the leading expert in the country on these specific types of issues, vis-à-vis the ability of Parliament to do certain things and the right and independence of the judiciary to conduct their roles free of legislative interference.
The decision to ask for the legal opinion was to ensure that the rights of the members of the committee were not being undermined or violated by attempts to push through a motion that may have been not only improper but not legal. As the opposition members were waiting for the opinion, government members held a subsequent in camera meeting, which they eventually reported out on, where they passed a motion demanding the production of the documents in question from the Canadian Broadcasting Corporation.
Soon after the motion was adopted, Mr. Walsh in fact provided his legal opinion in the form of a letter in reply to the member for Timmins—James Bay.
Mr. Speaker, I would just note that I have given you a copy of that opinion now.
Its contents support what would be my own opinion, and I hope yours, as well, on these three points: that the ethics committee is, first, far beyond the scope of its overall mandate; second, in breach of parliamentary convention; and third, in contravention of its constitutional boundary; all as a result of adopting that motion that kicked off the study in question.
Specifically about the opinion from Mr. Walsh, I put that in your possession again, I ask you, Mr. Speaker, to pay close attention to that opinion. Read it closely. I think it clearly sets out, in response to a series of questions from the member for Timmins—James Bay, where the breaches have occurred and the risk of further breaches occurring, in fact, the study continues and those documents are attempted to be forced from the CBC pending the outcome of the court case which is before the Federal Court of Appeal at the present time.
I would ask you, Mr. Speaker, to look at that and ask you to pay particular attention to these points that have been made, first, on the sub judice issue. Mr. Walsh addresses that convention, which is essentially that Parliament respects the work done by the judicial branch of government by not interfering or appearing to interfere with that work. He notes that Speaker Milliken described the sub judice convention by saying, “the House will await the determination of the court before discussing the matter--”.
In effect, what we are doing there is recognizing that the judicial branch has a particular expertise in this area. It has a constitutional mandate, as well, to provide that role. It is our role as legislators to consider the decisions that it makes, take them into account, make a decision at that point whether amendments are required to legislation, changes to legislation, or new legislation is required. That is where that line is. The judiciary is on one side, we relying as legislators on the other side of that line, on its expertise, both mandated and developed over a period of time in this country.
He then goes on, with regard to noting the same convention:
--the House and, by extension, its Committees will not undertake studies,--
I want to emphasize that:
--will not undertake studies, reviews or enquiries on matters that have been assigned by an Act of Parliament to an administrative tribunal or other public office, including Officers of Parliament--
In this case the Broadcasting Act assigns the specific responsibility to the Information Commissioner who has in fact been involved and is involved in that litigation that is before the Federal Court. There are three parties to that litigation: CBC, Information Canada, and a private broadcaster.
We have clearly ongoing litigation involving one of the officers of this House of Parliament, a crown corporation, and now a committee trying to insert itself into the process where it is clearly mandated that that role is to be played by the judiciary in this country.
He goes on, with regard to the division of powers, and this is perhaps maybe the most disturbing aspect of what is going on in front of the ethics committee at the current time, about the danger that the committee's actions are in violation of the Constitution Act, going back all the way to 1867, and of course the current Constitution Act.
On page 4 of his letter, Mr. Walsh outlines how the ethics committee study is overstepping the divisions of power set out by the act by attempting to make legal determinations which are the responsibilities of the courts. That role by the committee is clearly beyond its scope.
The intent is clear in this regard as the motion of the Parliamentary Secretary to the Prime Minister and to the Minister of Intergovernmental Affairs, which is now the basis for the committee study, says that the committee will, and I am quoting from the motion, “determine and assess exclusions”, which is exactly the role that is assigned to our judiciary, our courts, and in fact is the very specific subject of that litigation that is before the Federal Court of Appeal. It is seized with it. The arguments actually, I believe, have been made and we are waiting for a decision. Given the significance of the litigation that is going on, there is every possibility that this case, if an appeal is granted, will end up in front of the Supreme Court for a full argument.
I want to go back to the parliamentary secretary. He was not bashful about what he was doing. He went public with this in an article in the Toronto Star on November 3 of this year, saying it was his intention with the study to get ahead of the courts on this matter. That is not our role as legislators. It is absolutely the opposite of what we should be doing. We let the courts play their role and we then respond. However, he said it was to get ahead of the courts on this matter in order to save the court the time and expense of pursuing the matter. That is not at all within the determination of a parliamentary committee or Parliament as a whole. It has been assigned by the Constitution Act to be the responsibility of the courts. They determine that issue, not us as legislators.
If we were going to follow what the parliamentary secretary wants the committee to do, we would be really talking about a constitutional amendment. We would have to take away the exclusive jurisdiction of the courts and assign it either partially to committees or the House or totally to us, and take it away from the courts completely. There is no suggestion that we should be doing that. There is certainly no support that I have ever heard about us reducing the role of our judiciary in this regard. The courts are there to play the role of interpreting legislation and enforcing it in appropriate circumstances.
There is some emphasis I would like to provide to gain proper perspective of what the committee is doing, and I go back to the motion. The very first line of it is “to determine and assess” whether or not acts were followed by compelling the production of documents by a party to a matter before the courts. I am sure you will have no hesitation agreeing, Mr. Speaker, that it is the exclusive jurisdiction, not a shared jurisdiction, of the judicial branch of government. It is its exclusive jurisdiction.
Mr. Walsh is quite clear on this and stated that the ethics committee was nonetheless addressing a legal question that ought to be left to the courts to decide. He went on to say:
In my view, such initiatives are not within the constitutional functions of the House or, by extension, its committees and the use of the House’s powers to demand the production of documents for such purposes could be found to be invalid and unenforceable at law.
Finally, he stated:
Such an encroachment would offend the separation of powers between the judicial and legislative functions and possibly call into question the validity of ETHI's proceedings.
It is opening the door, quite clearly, to not just the possibility but probability that Parliament and the judicial branch will end up in litigation. It is the last thing we need at any time. Trying to keep the demarcation lines between the two authorities in the country is very important.
I want to make one final point with regard to a matter that Mr. Walsh raised. He said that within the context, if the documents that are sought are going to be dealt with in camera throughout, that is certainly some saving grace because it would be less of an interference in the judicial authority in this country.
However, he then went on to caution the member for Timmins—James Bay, the committee as a whole and perhaps the House, about the possibility, even the probability, but the reasonable likelihood of leaks coming out committees. We know it happens. As much as we are all dutiful about ensuring it does not happen, leaks may be the result of a staff person and it may be inadvertent. He said even if that were the case, just the risk that there could be a leak would make it appear as if we were willing to justify what the committee was doing by taking that risk and saying it was more important for us to do this than the risk of interfering with the judicial process.
I want to go beyond what he said because there is a point that I wish he would have covered. It begs the question, if documents are in fact at some point compelled, turned over and looked at, for what purpose?
If it is staying in camera, I assume at some point the study will end up in a report, then one of two things has to happen. The committee members may refer the documents and use them for the basis of their report, which ultimately would come to this committee, and therefore clearly breach our responsibility not to challenge the independence of the judiciary and the division of powers in the constitution. It is either that scenario or they do not use the documents. Then we would ask, why are we having this process if we are not going to use the documents? If we are not going to use them in the report, why are we bothering pursuing these documents to the degree that we are? If they use them, it is improper. If they do not use them, the whole question would be, what are we doing and why are we doing it.
The obvious conclusion I would draw from that is that government members on the committee intend to use the documents for the basis of the study and the ultimate report they prepare. If that happens, then clearly they have breached the constitutional conventions and the whole issue of division of powers.
I should make one more point in terms of additional material that I have given you, Mr. Speaker.
This morning we received copies of two letters, one to the chair of the ethics committee that set out that they were enclosing with the letter two sets of documents, as I understood it, one that the committee members could use because they are not part of the litigation; there is no issue of them being produced and they are not subject to the protection of the legislation in the CBC's opinion. And two, a sealed envelope of documents asking the chair not to release those documents until the outcome of all the litigation before the courts. The chair of that committee is presently seized with that request from the CBC.
Mr. Speaker, I have also given you a letter of opinion from the CBC's lawyers that was given to Mr. Lacroix, president of the corporation, setting out their legal opinion. The importance of that is that we would say it is clearly biased in favour of their own client. Having been a lawyer for a long time, I would not accept that.
More important, in all relevant aspects, it entirely agrees with Mr. Walsh's opinion that this process that has been undertaken by the committee is improper, has clearly crossed the bounds of both constitutional convention, and the constitutional division of powers between the judiciary and legislative branches.
I will conclude with this quote from Mr. Walsh's letter. He sums up his argument with the following:
In my view, respect for the constitutional framework of our parliamentary system of government is part of the rule of law which is the over-riding legal principle that makes a democratic system of government such as ours workable and credible.
That is from Mr. Walsh, not from me.
Mr. Speaker, I believe you have one of two choices of orders that you would make if you agree with the arguments that I have given you today. First, make an overall determination that the study from the very beginning, because of the direct and assessed part of that wording, clearly breaches the division of powers and the constitutional convention, and second, make a determination that the study, in its overall ambit, is beyond the scope and mandate of the ethics committee.
If you are not prepared to go that far in the alternative, I would ask that you, Mr. Speaker, direct that the committee suspend this study until such time as all of the litigation is completed. That would then give the committee the opportunity to have the expertise from our judiciary to make a final determination as to what would be in the report, whether new legislation is required or amendments are required to the existing legislation