Mr. Speaker, I think it is relevant that we understand where that came from. I will stop with the examples in that regard but it is fundamental to this democracy in Canada that we have access to these documents.
I will now go to the points you made in your ruling, Mr. Speaker, back on April 27 of last year. I will quote from that decision because when we look at what is going on here, there is absolutely no way that this confidence that is being claimed exists. As I finish, I will be talking specifically about the provisions within the Evidence Act and the Information Act to show even more extensively that this information has to be divulged to the Canadian people as a whole.
However, within the context of Parliament, you ruled at page 19 of the hard copy of that decision of April 27, that:
Before us are issues that question the very foundations upon which our parliamentary system is built. In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and in fact an obligation.
Embedded in our Constitution, parliamentary law and even in our Standing Orders, it is the source of our parliamentary system for which other processes and principles necessarily flow, and it is why that right is manifested in numerous procedures of the House, from the daily question period to the detailed examination by committees of estimates, to reviews of the accounts of Canada, to debate, amendments, and votes on legislation.
That is very pertinent to the request that was made by the finance committee.
You go on to say:
As I noted on December 10, 2009, House of Commons Procedure and Practice, Second Edition, states at 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. These rights are as old as Parliament itself.
Mr. Speaker, at page 978 to 979, you state:
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....
No statute or practice diminishes the fullness of the 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.
If I can just digress for a second, that is very pertinent to what is being requested. We know from a number of things that the paper exists. There are some points that we expect the government will say, such as that there are some limits on this, but I will come back to that in a few minutes.
You go on further, Mr. Speaker, by quoting Bourinot's fourth edition at page 70, to state:
The Senate and House of Commons have the right, inherent in them as legislative bodies, to summon and compel the attendance of all persons, within the limits of their jurisdiction, as witnesses, and to order them to bring with them such papers and records as may be required for the purpose of an inquiry.
In the arguments presented, the Chair has heard this power described as unabridged, unconditional, unqualified, absolute and, furthermore, one which is limited only by the discretion of the House itself. However, this view is not shared by all and so it is a privilege whose limits have now been called into question.
Again, you were referring to the position that the government took at that point, under a national security argument, that we were not entitled to the documents that were being sought.
Mr. Speaker, you went on to say:
The government's view is that such an unqualified right does not exist for either House of Parliament or their committees.
That was the position the government took. Again, I just find it very troubling that it is taking that position again now. You went on to say:
The executor, the holder of the sensitive information sought by the House has competing obligations.
That was the argument it was making at that time. I will not go on because that argument had more to do with the issue of national security and that is not being raised in this one.
I want to go on because the claim for confidence that we got was a cabinet confidence as opposed a ministerial claim for confidence. I do not know if the government was trying to make a differentiation there.
Mr. Speaker, you went on in the same decision, to state:
...Bourinot’s Second Edition notes that even in instances where a minister refuses to provide documents that are requested, it is clear that it is still ultimately up to the House to determine whether grounds exist to withhold documents.
It is not in the minister's control and not in the cabinet's control. It is only here in this House that that decision can be made.
Mr. Speaker, you go on to quote Erskine May as an additional authority for that. Again, I want to emphasize the historical nature because it goes way back. There is no basis on which the government can be doing what it is doing at this point.
Mr. Speaker, you quote Erskine May stating:
...underlying the Bill of Rights  is the privilege of both Houses to the exclusive cognizance of their own proceedings. Both Houses retain the right to be sole judge of the lawfulness of their own proceedings, and to settle—or depart from—their own codes of procedure. This is equally the case where the House in question is dealing with a matter which is finally decided by its sole authority, such as an order or resolution, or whether (like a bill) it is the joint concern of both Houses.
That power resides here in this chamber, or in the other House, but not in the hands of a minister or the cabinet, which is really what is being claimed at this point, if the short answer and short denial we got can be understood without any interpretation.
Mr. Speaker, you go on in that to look at other legislatures, Australia in particular, where it had made similar findings as to what you found in that decision.
Mr. Speaker, you ultimately concluded, at page 27 of the hard copy, that:
It is the view of the Chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would in fact jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts. Furthermore, it risks diminishing the inherent privileges of the House and its members, which have been earned and must be safeguarded.
As has been noted earlier, procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of government documents, even those related to national security.
The government is certainly not claiming that in this case.
You went on, Mr. Speaker, and drew the very definitive conclusion and made the decision that there was no authority to hold back those documents, that provisions had to be made for those to be released if we accepted the government on its face that they were national security documents.
Here we are talking about documents that are of a financial nature, information that is clearly available, as well as the information on the cost of the prisons and those related crime bills.
I also want to note that we have heard from the Liberal Party, both from the member for Kings—Hants and the member for Mississauga South, on this point and the official opposition is taking the same position. We are taking the same position and are asking you to uphold the decision you made last year, in this case.
I have the position taken by the Bloc Québécois in the arguments it made on March 18 of last year before your ruling, Mr. Speaker. Its position was that there was no basis for the government's claim and even less, if you look at that. However, I would draw to your attention the argument that was made at that point. You may want to consider that if the Bloc does not speak to this before you make your ruling.
I have one final point, which moves more into the legal area. There is a provision in the Canada Evidence Act, section 39, that sets out a procedure by which the government must exercise its right to claim cabinet confidence and under what circumstances. Then there is the Access to Information Act that sets out in section 69 where it cannot claim that under some circumstances. I will just deal with the criteria.
Normal procedure is for the Clerk of the Privy Council to certify which documents cabinet confidence can be claimed and where it applies. We do not know if that has been done here. For the two pieces of information we want, we got a bland denial. We do not know if the Clerk of the Privy Council, because we do not have that fact in front of us, has certified some of these documents as being within cabinet confidence.
Under the procedure set out in section of 39 of the Canada Evidence Act, the Clerk of the Privy Council is required to exclude from any claims of cabinet confidence discussion documents. It would be our position, based on the information that we are seeking, that it would fall into the category of discussion documents and, therefore, the confidence does not apply.
However, even if it does apply and the documents can somehow be construed as not being discussion documents, which I find hard to imagine as my mind is not quite that creative, although maybe the government is, subsection 69(1)(3) sets out that a claim of confidence is only applicable until a decision is made. In this case, it is quite clear that the decision around corporate tax breaks was made several years ago in the form of a budget. All of the crime bills have been tabled in the House and some have even passed. On all of that, a decision has been made in both cases.
I want to quote section 69 so it appears in Hansard. Subsection 69(1) sets out the fact that there is a double step. The right to access the rest of the act is all the authority one has, both as individuals and as individual members of this society, and we have to ask for information from the government.
Subsection 69(2) defines who fits into that category where information does not have to be given and the cabinet is part of that. It states:
Definition of “Council”
(2) For the purposes of subsection (1), “Council” means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet.
Right now we have a claim by the government that it is a cabinet confidence. We do not know if any certification has been done under section 39. However, under section 69 of the Access to Information Act, the documents are only excluded if a decision has not been made, which brings us to subsection 69(3), which is an exception. It states:
(a) confidences of the Queen’s Privy Council for Canada that have been in existence for more than twenty years;
We are not claiming that. However, then it goes on to say, “discussion papers described in paragraph (1)(b)”, and there is a long description. Clearly the information we have sought, and was sought by the finance committee, would fit into that category.
It goes on to say in subparagraph 69(1)(3)(b)(i), “if the decisions to which the discussion papers relate have been made public”. I go back to my point made earlier. The tax breaks for the corporate world, particularly large corporations, were made in a budget in either 2007 or 2008. Those decisions are public because they have been implemented and the corporate world has been receiving those major tax breaks.
There is a second category that also says, in subparagraph 69(1)(3)(b)(ii), “where the decisions have not been made public, if four years have passed since the decisions were made”. There is no absolute claim to privilege on an ongoing basis. However, the section that is applicable here is subparagraph 69(1)(3)(b)(i,) which states that if the decisions have been made public, that information has to be made available to the public, including to this chamber.
I am setting out that information because I do not know what the government will argue. Up to this point, it has not come before us to make its argument. If the government tries to shelter under section 39 of the Canada Evidence Act and under section 69 of the information and privacy act, it does not hold water. There is just no basis for that.
In summary, what are we faced with? We are faced with a government that is clearly attempting to thwart the work of us as individual members of Parliament. It is again a significant underpinning for our democracy that members of Parliament have information of that nature, not only for the purposes of our role in this chamber and in committee, but in the general public so we can share that information with the general public. It is very much striking at the heart of our democracy.
I have cited the authority, as well as your ruling, Mr. Speaker, under the rules of the House, the practice that has grown up literally for more than 300 years. I have also cited the legislative authority with regard to cabinet confidentiality.
I would argue, Mr. Speaker, that it is absolutely imperative that you rule in favour of the request for finding a breach of privilege by the member for Kings—Hants. The message did not get through to the government 11 months ago. It is repeating the same misbehaviour, so it is absolutely crucial that the message go very clearly to the government that it is not allowed to take these kinds of undemocratic steps to thwart the work of individual members of Parliament and to thwart information getting out to the general public.