I am now prepared to rule on the question of privilege raised on July 20, 2020, by the Leader of the Opposition concerning remarks made by the Prime Minister in committee of the whole regarding an investigation headed by the Conflict of Interest and Ethics Commissioner. The Leader of the Opposition maintained that the Prime Minister had deliberately misled the House in his response to questions about his past co-operation on the investigation into SNC Lavalin matters. This question of privilege is related to the one that the Leader of the Opposition initially raised in the committee of the whole on July 8, 2020. However, he felt that, due to exceptional circumstances, the Chair should consider the matter even in the absence of the committee report.
On July 21, 2020, the Parliamentary Secretary to the Leader of the Government in the House of Commons presented arguments suggesting that the question of privilege was not valid, but he did not address whether it was appropriate to raise the matter with the Speaker directly.
Let me address with this procedural issue first.
I accept that the particular circumstances of this situation, notably the challenge surrounding the committee of the whole format, do make it appropriate to bring the matter to the Speaker. While this is clearly an exceptional case, I do wonder if it would be useful for the Standing Committee on Procedure and House Affairs to look into this issue of questions of privilege arising from committee more thoroughly, since, as the Leader of the Opposition noted, it is ultimately within Parliament's authority to defend members' privileges.
In the second part of his question of privilege, the Leader of the Opposition focused on the responses from the Prime Minister that he felt were misleading. He rightfully noted that there are three criteria that the Chair must assess in order to determine whether a statement sought to deliberately mislead the House. I will take them in turn.
The first criterion is whether the statement was in fact misleading. In the response at issue, the Prime Minister said that the government had taken “the unprecedented step of waiving cabinet confidentiality and of waiving solicitor-client confidentiality in the situation so that the Ethics Commissioner could fully investigate the matter at hand.”
The Leader of the Opposition noted several passages of the Conflict of Interest and Ethics Commissioner's report which referred to the latter's “inability to access all Cabinet confidences related to the matter" and which led him to conclude that he was “unable to fully discharge the investigatory duties conferred upon” him. The report also suggests that some witnesses felt constrained by what they could say during the course of the investigation because the waiver of cabinet confidence was limited. These elements of the report led the Leader of the Opposition to conclude that the Prime Minister had misled the House in stating that the Conflict of Interest and Ethics Commissioner had been able to fully investigate the matter.
The parliamentary secretary to the government House leader argued that the Prime Minister's response was being taken out of context and that it referred to the unprecedented step that the government had taken in waiving access to cabinet confidences and solicitor-client privilege in the context of this investigation.
He further argued that the commissioner had himself stated that he had “gathered sufficient factual information to properly determine the matter on its merits”.
The second criterion is whether the member making the statement knew it be incorrect. The Leader of the Opposition argued that the Prime Minister must have known that the statement was incorrect because he would have been aware of the contents of the commissioner's report and that he had been questioned extensively in the House on the extent of the government's co-operation with the investigation. In return, the parliamentary secretary's assertion was that, in the context the response was provided, it was not incorrect at all.
The third criterion is whether, in making the statement, the member intended to mislead the House. The Leader of the Opposition did not provide any argument about what he viewed as the Prime Minister's intent, while the parliamentary secretary's contention is that the Prime Minister was speaking about the rationale for waiving certain privileged information in relation to the commissioner's investigation.
In reviewing these arguments, it appears to me as though there is a disagreement as to the meaning and the context of the Prime Minister's comments. It is reasonable for members to disagree as to what constitutes a full investigation or full co-operation and thus it is not obvious to the Chair that the statement was clearly misleading.
As a previous Speaker noted in a ruling that he delivered on April 30, 2014, “Members must recognize and accept the existence of differences of fact and interpretation, which have always been a part of the normal cut and thrust of debate and question period.” I cannot therefore conclude that the first criterion was met.
If one cannot conclude definitely that a statement was misleading, it would be difficult to conclude that the member making that statement knew it to be misleading and, as a result, that the member intended to mislead the House in making it.
Therefore, based on my assessment of these three criteria, the threshold for finding a prima facie question of privilege has not been met.
I thank the members for their attention.
Pursuant to an order made Tuesday, May 26, the House shall now resolve itself into a committee of the whole to consider matters related to the COVID-19 pandemic and other matters.
