Debates of Nov. 23rd, 2021

Access by Members to the House of Commons Precinct

[The Speaker, Anthony Rota]

I am sorry. I do not mean to interrupt the hon. member, but this is a new item not having to do with what we were discussing.

I will wrap up after the hon. member for Saanich—Gulf Islands spoke. I will take it under consideration and come back to the House. I just wanted to wrap that up to ensure it was taken care of.

The hon. member for Barrie—Innisfil can start from the top. My apologies.

Alleged Breaches of Privilege Presented in the Second Report of the Standing Committee on Access to Information, Privacy and Ethics

[John Brassard, Conservative, Barrie—Innisfil, ON]

Thank you, Mr. Speaker. This is in relation to a letter and a question of privilege related to the 43rd Parliament, which I wrote to you about, and I rise today just to be perfectly clear.

When the House began its summer adjournment, the Chair had before it a question of privilege, which the hon. member for Leeds—Grenville—Thousand Islands and Rideau Lakes had raised on June 10, with respect to the second report of the Standing Committee on Access to Information, Privacy and Ethics that had been presented to the House that morning. The then government House leader's parliamentary secretary told the House that he would come back within a week with a response, but the Liberals remained perfectly silent throughout June.

Before a ruling could be delivered, the Prime Minister called an unnecessary federal election in pursuit of his own ambitions for power. By rising today, I am seeking to revive this question of privilege.

As you recently heard from my House leader, Mr. Speaker, it is a well-established principle that one Parliament may address a contempt that was committed against one of its predecessors. He also spoke about importance of raising this matter today in keeping with the spirit of your ruling from last autumn.

Since there has been some turnover in the membership of the House since June, I will give a recap of the issues raised in the original question of privilege.

Very extensive submissions were put forward on June 10, so I would refer the Chair to those including—

[Mark Holland, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I rise on a point of order. I was up earlier on this, but, as this is a matter from the previous Parliament that would have concluded at dissolution, I do not believe it comes forward here. Therefore, I am not opposed to the member raising it, but I believe it is premature to be doing so here.

I would have to assert that a motion or committee report would be necessary for this matter to be considered. It is premature. We are dealing with a lot of matters that are from the previous Parliament. I do not believe that members can simply bring matters in here and avert that process, and I would seek the Speaker's ruling on such.

[The Speaker, Anthony Rota]

I will let the hon. member for Barrie—Innisfil continue. In the meantime, I will consult with the table to make sure we are not breaking any rules and that we are following the proper procedure.

The hon. member for Barrie—Innisfil.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, again, I would refer you, in keeping with the spirit of your ruling from last autumn, with respect to these issues. In any event, members can be reassured that my comments will be much shorter than the two hours or so of submissions that were made back in June.

On March 25, this House adopted an order requiring the attendance of three witnesses before the ethics committee: Rick Theis, the Prime Minister's director of policy and cabinet affairs, was to appear on March 29; Amitpal Singh, the Deputy Prime Minister's policy adviser, was to appear on March 31; and Ben Chin, the Prime Minister's senior adviser, was to appear on April 8. The order also contemplated that the Prime Minister could appear on behalf of any or all of those individuals. In the end, as confirmed in appendix A of the second report, none of them appeared before the ethics committee.

On page 82 of the House of Commons Procedure and Practice, third edition, various categories of known contempts of Parliament are noted, including, “without reasonable excuse, failing to attend before the House or a committee after being summoned to do so” and, “without reasonable excuse, disobeying a lawful order of the House or a committee”.

Parliamentary Privilege in Canada, second edition, at page 239, outlines the importance of treating Mr. Theis, Mr. Singh and Mr. Chin's disregard of the March 25 order of the House as contempt. It states:

Disobedience to rules or orders represents an affront to the dignity of the House, and accordingly the House could take action, not simply for satisfaction but to ensure that the House of Commons is held in the respect necessary for its authority to be vindicated. Without proper respect, the House of Commons could not function.

A moment ago I quoted Bosc and Gagnon's caveat of “without reasonable excuse”. I would argue that could be addressed very quickly considering that none of the three witnesses offered any excuse for their absences. I do acknowledge that two cabinet ministers wrote to the ethics committee's chair to indicate they would appear on behalf of the witnesses, but that does not constitute an excuse from the witnesses personally. In the alternative, I would say it does not amount to a reasonable excuse.

In the present case, it is quite clear the House adopted an order and the order was breached completely, since there was no effort by the witnesses to comply with it in any way, nor was any excuse advanced by them to be weighed by the House or for the committee to assess and report its findings.

I now wish to turn to the government's role in preventing Mr. Theis, Mr. Singh and Mr. Chin from appearing as witnesses at the ethics committee. The government has freely admitted to this course of conduct, both in advance and at the time of the scheduled appearances. In his remarks to the House on March 25, the then government House leader said, at page 5234 of the Debates, “I say here today that ministers will instruct their staff not to appear when called before committees and that the government will send ministers instead to account for their actions.”

[The Speaker, Anthony Rota]

I am wondering if the hon. member could get to the point. I am trying to understand how this is applicable to this Parliament. It sounds like there is an argument for overlap.

I would like to make sure this is something that is applicable to this Parliament, that we are not arguing a past Parliament, and that this is pertinent to this Parliament. I am sure the hon. member can do that.

The hon. member for Barrie—Innisfil.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, as I said at the onset, there was an opportunity for the government House leader to respond. He had indicated to Parliament that he would respond within a week of the point of privilege being presented by the member for Leeds—Grenville—Thousand Islands and Rideau Lakes. The government House leader did not respond, and in the spirit of a ruling that you made last autumn, it was suggested and ruled upon that at the earliest convenience of the House reconvening, a point of privilege could be raised from the previous point of privilege. That is the basis upon which I am presenting this point of privilege, and I believe, in the spirit of what you decided, that I should continue with it.

In advance of the committee's March 29 meeting, the then government House leader sent a letter to the chair of the ethics committee, further to his statement to the House the week before, writing, “Accordingly, Mr Rick Theis, Director of Policy to the Prime Minister, has been instructed to not appear before the committee. In his place, I will attend the meeting on behalf of the government on Monday, March 29th.”

I would add that the ethics committee did not accept the then government House leader as a substitute witness in satisfaction of the order. Indeed, the committee, at its March 29 meeting, adopted a motion that states, “in relation to its study on questions of conflict of interest and lobbying in relation to pandemic spending, the committee invite [the minister] to appear.” He was treated as a separate witness, invited independently of and without any link to the March 25 House order.

When the then government House leader appeared at the committee, he said, at page 13 of the evidence, “Based on the instructions I gave the other day, it was clear to Mr. Theis and other individuals that they wouldn't appear before committees and would be replaced by the appropriate ministers”.

The minister even acknowledged, at page 8 of the evidence, that this was an unsatisfactory arrangement to the majority of the House, when he said, “I am aware that some of the members of this committee would rather be hearing from a staff member from the Prime Minister's Office, Mr. Rick Theis, but as I told the House last week and I want to make clear again, we fundamentally disagree with the decision”.

The then associate minister of finance would go on to write the ethics committee chair similar letters in advance of Mr. Singh's March 31 scheduled appearance and Mr. Chin's April 8 scheduled appearance.

A few moments ago, I referred to Bosc and Gagnon itemizing, at page 82, a list of known contempts of Parliament. I would add the following two, which have particular bearing here: “interfering with or obstructing a person who is carrying out a lawful order of the House or a committee” and “intimidating, preventing or hindering a witness from giving evidence or giving evidence in full to the House or a committee”. Bosc and Gagnon add, at page 1080, “Tampering with a witness or in any way attempting to deter a witness from giving evidence may constitute a breach of parliamentary privilege.”

Quite clearly, Messrs. Theis, Singh and Chin were obstructed, deterred, prevented from and maybe even hindered in their ability of carrying out a lawful order of the House of Commons. Parliament's right to hear from the witnesses it has chosen, without obstruction, has been consistently asserted, dating back to February 21, 1700, when the English House of Commons adopted a resolution that said:

That if it shall appear that any person hath been tampering with any Witness, in respect of his evidence to be given to this House, or any Committee thereof, or directly or indirectly hath endeavoured to deter or hinder any person from appearing or giving evidence, the same is declared to be a high crime and misdemeanour; and this House will proceed with the utmost severity against such offender.

Much more recently, in Mr. Speaker Milliken's highly celebrated ruling on Afghan detainee documents, on April 27, 2010, he made some less well-remembered comments on witness matters, including, at page 2041 of the Debates, “the procedural authorities are clear that interference with witnesses may constitute a contempt.”

Beyond the matter of the government's so-called instructions at page 13 of the ethics committee's March 29 evidence, the then government House—

[Mark Holland, Liberal, Ajax, ON]

Mr. Speaker, I am rising on a point of order.

I will read something that I believe is relevant to this:

All items on the Order Paper including government and private Members’ bills die. The government’s obligation to provide answers to written questions, to respond to petitions or to produce papers requested by the House also ends with dissolution.

Committees cease to exist until the House reconstitutes them following the election. All orders of reference expire, and the Chairs and Vice-Chairs of all committees cease to hold office. The government is no longer required to provide responses to committee reports.

I continue to make this point. We have indulged many points that have crossed the line and have gone on for quite some length. Again, this is not the place, not the time and not how this should be dealt with.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Mr. Speaker, on the point of order raised by my government counterpart, I want to raise the fact that this is exactly what the Speaker said just two minutes ago, that we have to address it correctly. He said, quoting from memory, “I am sure the hon. member can do that.” Let the member express himself. I am sure he will follow the rules established by the Speaker of the House.

[The Acting Speaker, Chris d'Entremont]

I will ask the member for Barrie—Innisfil to sum up.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, respectfully, it is difficult to sum up this question of privilege if the facts are not laid out and if the Chair is not reminded of some of the points that were brought up.

In the first intervention on this question of privilege as it related to the previous Parliament, the member for Leeds—Grenville—Thousand Islands and Rideau Lakes went on for two hours about this, laying out foundationally where the privilege had been broken. There is a need, respectfully, to summarize for the Chair exactly what the basis of this breach of privilege is. I would ask for some indulgence on this because it would be awfully difficult for me to go to the back end, as was the previous case, and really lay this out.

I will note that when the explanation was made to the Chair as to why it was important to lay out these facts in addition to what was not dealt with in the last Parliament and the Speaker's own spirit of the ruling that it be presented at the first possible opportunity, that is precisely what I am doing here. I want to thank the Speaker for that.

Much more recently, in Mr. Speaker Milliken's highly celebrated ruling, which I will repeat because this is the point where I was cut off, on the Afghan detainee documents on April 27, 2010, he made some much less well-remembered comments on witness matters, including at page 2041 of the Debates, where he stated, “the procedural authorities are clear that interference with witnesses may constitute a contempt.” Beyond the matter of the government's so-called instructions, at page 13 of the ethics committee's March 29 evidence, the then government House leader made the claim, “ministerial responsibility means that a minister can replace an employee who reports to the minister, not to Parliament.” That is just not so. In fact it is, in my view, a gross misstatement of several constitutional principles. Ministerial staff enjoy no special status when it comes to being summoned as a witness.

Page 981 of Bosc and Gagnon states quite clearly, “The Standing Orders place no explicit limitation on this power. In theory, it applies to any person on Canadian soil.” While very limited categories of persons do have immunity from appearing, the Law Clerk and Parliamentary Counsel advanced the point that there is no immunity for political staff when they appeared before the ethics committee on April 12 and the committee thought fit, in appendix A of its second report, to include a summary of the evidence:

Mr. Dufresne stated that political staff and public servants have no immunity, by virtue of their positions, from requests to testify before parliamentary committees. He also suggested that the topics of discussion and the different roles that ministers and political staff play have been factors for deciding which person is the more appropriate witness to testify on a given topic.

In 2013, the United Kingdom Parliament's joint committee on parliamentary privilege considered a government green paper on parliamentary privilege, which, among other things, asked—

[The Speaker, Anthony Rota]

The hon. member has done very detailed work and it is very much appreciated, but at this point we are trying to establish whether there is a prima facie case. I would ask the hon. member to be more concise and let us know exactly what he is looking for and then we can rule on it.

The hon. member for Barrie—Innisfil.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, I will refer you to the two-hour presentation from the member for Leeds—Grenville—Thousand Islands and Rideau Lakes. I will also, with respect, sum up what the prima facie case is here.

It is my respectful submission that seven prima facie contempts have been made here: One concerns each of the three witnesses who failed to appear before the ethics committee, one concerns the government's instructions to each of the three witnesses to disobey an order of the House of Commons and, finally, one concerns the misleading or prevaricating evidence given by the member for Waterloo to the two committees.

I had not had an opportunity until this point to lay that out. I will again, Mr. Speaker, refer you to the member for Leeds—Grenville—Thousand Islands and Rideau Lakes.

I have presented two points of privilege today. In fact, I believe that my privilege as a member to present these points of privilege has been violated. I have been interrupted many times during circumstances where I have been presenting very factually the cases as they related to the previous point of privilege and to this point of privilege.

I will turn to you, Mr. Speaker, as the guardian of the rights and privileges of this Parliament because I know that a lot rests on your shoulders. My grievances here are not some partisan Liberal or Conservative dispute. They are far more fundamental than that. For those at the heart of the balance between the legislature and the executive in this case, it is about more than party politics. The centuries of parliamentary and constitutional evolution to which we are the inheritors centre on the struggle between the King and parliament. In the end, parliamentary supremacy was established as a bedrock principle of our democracy. From time to time, we are called upon to speak up for and defend these ancient but utterly critical principles of the democratic system that we enjoy as Canadians. I know that you will make the right decision in this case.

As uncomfortable as these situations are for the government, it is paramount that we defend our democracy and that we defend our democratic institutions. You are the guardian of that, Mr. Speaker. It is for that reason I rise today, not just on the other issue, but on this one as well. I ask that you defend those principles.

[Christine Normandin, Bloc, Saint-Jean, QC]

Mr. Speaker, I would like to ask you to be kind enough to remind me that a member does not need to invoke the right of reply to speak in the future. However, if such is not the case, then I would like to invoke the right of reply for the Bloc Québécois.

[The Speaker, Anthony Rota]

I thank the member. We have taken note of that.

[Matthew Green, NDP, Hamilton Centre, ON]

Mr. Speaker, it is an honour and a privilege to be here representing my constituents of Hamilton Centre who have imbued me with this very serious duty of coming to the House of Commons to exercise our parliamentary privileges: ones that have been outlined by the hon. member for Barrie—Innisfil as perhaps being in question or under attack. A lot has been said on many of these points of privilege here today.

I want to congratulate you on your preferment, and I would share that when we elected you yesterday, Mr. Speaker, we did so knowing that we were trying to set a direction for the course of this 44th Parliament that would respect the rights and privileges of every member present in the House.

In trying to learn more about these privileges, I have turned to the jurisprudence, much in the same way my colleagues have, referencing Derek Lee's The Power of Parliamentary Houses to Send for Persons, Papers and Records: A Sourcebook on the Law of Precedent of Parliamentary Subpoena Powers for Canadian and other Houses. I am sure it is on the Speaker's shelf, along with a long list of other jurisprudence that goes back to the 1600s and protects our rights and assures that in this Westminster parliamentary system, we have a balance of power on both sides of the House.

I rise as a New Democrat and think this is an important consideration for your priority, Mr. Speaker, when setting the tone for this 44th Parliament because the Liberal government did have a penchant for circumventing the rules and, in many cases, violating the parliamentary privileges of members of the House of Commons. That has been outlined seven times in this particular point of privilege, three times previously in other points, and multiple times in the last session of Parliament, when you had to intervene in legal proceedings, which was unprecedented.

With this particular case, as committees are being struck it is going to be especially important for you, Mr. Speaker, to provide a clear ruling to show the government and the opposition how seriously we are going to take the jurisprudence on our parliamentary privilege. Because we had a government that chose to run out the clock on the last session, to prorogue it and use procedures to frustrate the basic application of our parliamentary privileges, I believe we would be better off if this was prioritized in a ruling brought forward that clearly defends, with proper evidence, the right for us to use our subpoenas, and to send for documents and records as has been accorded through the historical practices and usages of the House.

Without getting into details or arguing the points and principles of this particular case, I would suggest that this case ought to be used as a precedent for future potential circumventions of our privilege.

I will state in closing that a precedent will be set either way, because a non-decision in this case is also a precedent. It will actually reward, in some instances, the government side's behaviour of circumventing what is, I think, a very clear and well-laid-out long-standing tradition of respecting our parliamentary privileges.

With that, I rise as a member of the New Democratic Party in support of the hon. member for Barrie—Innisfil. I ask that you put express priority particularly on the matter of principle and privilege that has been raised today, because it will send a message to the government about what it is able to get away with in the months to come. I look forward to the Speaker's very learned decision on the matter.

[The Speaker, Anthony Rota]

I want to thank the hon. members for their input and their information. I will be returning to the House with a judgment as soon as possible.

Access by Members to the House of Commons Precinct

[Claude DeBellefeuille, Bloc, Salaberry—Suroît, QC]

Mr. Speaker, I would like to share with you a major concern that my Bloc Québécois colleagues and I share regarding the health and safety of members of the House and parliamentary staff. This concern is a direct result of the Conservative Party's lukewarm position on whether it is effective and necessary for its members to be vaccinated against COVID‑19.

Since the Board of Internal Economy made its decision to require those on Parliament Hill to be double vaccinated, the Conservative Party has been keeping the public and parliamentarians in the dark by refusing to disclose whether its members have been vaccinated.

The Leader of the Opposition stated that all of his members would be in the House of Commons since they were vaccinated or had medical exemptions. However, he is refusing to say how many members have exemptions.

Science and public health officials are requiring people to be vaccinated in order to have access to many public places across the country, and they keep saying that the best way to protect against the spread of COVID‑19 is for the vast majority of the population to be properly vaccinated.

Rumours have been going around since yesterday that about one-third of the Conservative members produced vaccine exemptions to be allowed on the Hill without being vaccinated. Seeing as how we are in a pandemic, the Conservative Party's refusal to disclose its members' vaccination status makes no sense in our view.

We believe every member of Parliament who has made the responsible choice to get vaccinated to protect the lives and health of their fellow citizens, their loved ones and their colleagues has the right to know which parliamentarians are not adequately vaccinated so they can keep their distance to avoid being infected and potentially infecting others.

We think this secrecy on the part of the official opposition is totally irresponsible and a direct violation of the House's parliamentary privilege. This seems like a good time to remind the House that the ultimate aim of parliamentary privilege is to ensure that the House of Commons can conduct its proceedings effectively and get its democratic work done.

In accordance with tradition and practice, the collective privilege of the House takes precedence over the parliamentary privilege of individual MPs. The reason for that is to protect Parliament from any abuses by individual parliamentarians.

According to a Library of Parliament note dated November 12 on mandatory immunization and parliamentary privilege, the ultimate purpose of parliamentary privilege is to enable the institution to do its work.

Allowing members who are not fully vaccinated on the Hill because they have submitted a medical exemption directly contradicts the Board of Internal Economy's goal of making Parliament Hill a safe place for people to work.

Allowing unvaccinated members to access Parliament Hill undermines the health and safety of all members and our fellow citizens. It poses a real risk to both public health and the proper functioning of the House of Commons.

Parliamentary privilege must not in any way include the ability to jeopardize the health of other members or their ability to work. It is one thing for elected officials to renounce exemplary health practices, but it is quite another for them to renounce precaution, especially if it means putting their colleagues and the employees of the House at risk. This would be incredibly irresponsible.

Therefore we are asking that the House order the House Administration and the Board of Internal Economy, which oversees the House Administration, to take the measures required to rectify the situation and ensure that all members present on Parliament Hill are adequately vaccinated to ensure the health and safety of the House.

[The Speaker, Anthony Rota]

I would like to thank the hon. member for her proposal. I will come back to the House with a ruling shortly.

[Mark Holland, Liberal, Leader of the Government in the House of Commons]

moved:

That the House do now adjourn.

[The Speaker, Anthony Rota]

Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[The Speaker, Anthony Rota]

(Motion agreed to)

[The Speaker, Anthony Rota]

the House stands adjourned until tomorrow at 2 p.m. pursuant to Standing Order 24(1).

(The House adjourned at 6:03 p.m.)