I am now prepared to rule on the question of privilege raised on November 23, 2021, by the member for Louis-Saint-Laurent concerning the failure to produce documents. I also want to deal with the question of privilege raised the same day by the member for Barrie—Innisfil concerning the second report of the Standing Committee on Access to Information, Privacy and Ethics during the second session of the 43rd Parliament. While they are distinct questions of privilege, the Chair intends to render a single ruling, given the procedural similarities of the two questions.
Before getting to the heart of the matter, the Chair wishes to briefly summarize recent events from the previous Parliament.
Regarding the question from the member for Louis-St-Laurent, on June 21, 2021, the president of the Public Health Agency of Canada appeared at the bar of the House to be admonished, but he did not hand over the documents required by the order adopted on June 17, 2021. The member for Louis-St-Laurent then raised a question of privilege concerning the failure to produce the documents. On June 23, 2021, the government applied to the Federal Court to seal these documents.
As for the question from the member for Barrie—Innisfil, on June 10 the Standing Committee on Access to Information, Privacy and Ethics had presented its second report to the House, which described the problems it encountered during its study, and the member for Leeds—Grenville—Thousand Islands and Rideau Lakes raised a question of privilege on the matter.
The House then adjourned for the summer on June 23, 2021, before a ruling on these questions was rendered. The 43rd Parliament was then dissolved on August 15, 2021.
When he again raised his question of privilege in the current session, the member for Louis-St-Laurent argued that the government’s application to the Federal Court on June 23, 2021, was unprecedented in Canadian history. While the court challenge ended with dissolution, the member argued that openly challenging the authority of the House before the courts, by attacking its fundamental rights, constituted contempt.
Citing the relevant authority, he pointed out that contempt committed in a previous Parliament can be punished in a new Parliament. He thus argued that dissolution did not eliminate the questions of privilege.
The member for Barrie—Innisfil also mentioned that the House can consider contempt committed during a previous Parliament, referring to the question of privilege previously raised by the member for Leeds—Grenville—Thousand Islands and Rideau Lakes. He explained that the committee report, which was not concurred in by the House, described several breaches of privilege. These included that the people summoned to appear had not appeared to give evidence, that the government had interfered by instructing them not to appear, and that the member for Waterloo, then a minister, had given evasive and inaccurate responses in her evidence.
The leader of the government in the House then intervened on the two questions of privilege by responding that all business from the previous Parliament ended with dissolution. He therefore argued that, in order to raise a question of privilege on these matters, a motion or a committee report would be needed in the new Parliament for the House to be seized of them. He later expressed the government’s willingness to work with the opposition parties to find an appropriate mechanism to examine the documents that contain confidential national security information, like what was done in 2010 in the case of documents relating to the Afghan detainees. The member for Louis-St-Laurent countered that he did not believe such an approach was necessary in this case, given the mechanisms that had already been proposed to protect sensitive information.
The member for Winnipeg North also intervened to talk on the question of privilege raised by the member for Barrie—Innisfil. He argued that the quote from the 20th edition of Erskine May, to the effect that contempt can be punished during a different Parliament, does not apply in the current context. Moreover, unlike the members of departmental staff who were summoned to appear before the committee, it is the ministers who are responsible and who are accountable to Parliament.
The Chair has no doubt that the House or its committees can order a witness to appear or order the production of documents, as was the case with the orders adopted in the last session. It is not up to the government to decide what other people should have been summoned or to dictate the conditions for the production of documents.
The order adopted must be respected. However, when the time comes to rule on the matters before us, the Chair must consider how dissolution affects the business of the House and its committees.
House of Commons Procedure and Practice, third edition, clearly stipulates, at page 397, the following:
With dissolution, all business of the House is terminated....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....
Consequently, as a result of the dissolution of the 43rd Parliament, the orders of the House from March 25 and June 2 and 17, 2021, have expired. The government and the people summoned to appear are released from their obligations. Similarly, the Special Committee on Canada-China Relations and the Standing Committee on Access to Information, Privacy and Ethics have ended, as have their studies. Any report presented in connection with the study involved only the committee from the previous Parliament.
As members have mentioned in their interventions, House of Commons Procedure and Practice, third edition, states at page 81, as follows:
Instances of contempt in one Parliament may even be punished during another Parliament.
A very similar formulation can be found in a previous edition of Erskine May, the procedural authority for the United Kingdom. As indicated by the member for Winnipeg North, it is not found in the current edition. The circumstances in which such an issue may be raised are, however, more limited than this citation suggests.
In fact, we find very few precedents where questions of privilege from a previous Parliament were raised during a new Parliament. The member for Leeds—Grenville—Thousand Islands and Rideau Lakes listed some of them in an intervention on November 24, 2021.
Distinctions must be made between the matter at hand and the precedents cited. When we examine the latter, the House had not expressed itself beforehand, because the incident or problem that occurred during the previous Parliament was brought to the House's attention for the first time in light of new facts. Speaker Parent, in his ruling of October 9, 1997, found no grounds in the absence of a committee report. When the questions of privilege were raised during the second session of the 43rd Parliament, they took account of the orders then in effect.
Dissolution put an end to the business of the House and of the committees and, thus, to the various orders. Since we are in a new Parliament, the issues raised are no longer before the House. It is up to the House and its committees to decide whether it is desirable to adopt these orders once again in the new Parliament. Should that happen, it would be necessary to determine whether the government or the witnesses agree to comply before a question of privilege can be raised.
It is therefore not possible in the current circumstances to seize the House on these questions of privilege arising from the previous Parliament. Thus, the Chair cannot conclude that there is a prima facie question of privilege.
I thank the members for their attention.
I wish to inform the House that because of the deferred recorded divisions, Government Orders will be extended by 12 minutes.