Madam Speaker, a former general legal counsel for this House, Diane Davidson, wrote in a 1994 paper provided to the Standing Joint Committee for the Scrutiny of Regulations:
As to the status of public servants and Ministers as a question of law only, I would subscribe to the conclusion of the Ontario Law Reform Commission in its 1981 Report on Witnesses Before Legislative Committees...that these witnesses are in the same position as any other witness—in theory they could be compelled to testify on any issue, answer any questions or produce any document. There is no legally guaranteed immunity from Parliament's broad power to call for information, and therefore no special status is conferred.
New Zealand's House of Representatives shares the perspective as McGee notes on page 494:
The power to summon witnesses and order the production of documents is not limited in its application to public servants, Government bodies, or other public agencies. It extends to ordering individuals, corporate and private bodies to appear before the House or a committee to give evidence....
In 2013, the Parliament of the United Kingdom's Joint Committee on Parliamentary Privilege considered a government green paper on parliamentary privilege that, among other things, asked whether Parliament's ability to compel MPs, civil servants and judges should be extinguished. The committee, at paragraph 87, spoke powerfully against the idea of exempting government employees from the power to send for persons:
Reducing Committees’ powers to call for civil servants would rebalance the relationship between the legislature and the Executive in the Executive’s favour. The Osmotherly rules, which guide officials in their dealings with Committees of the two Houses, are a creation of the Executive, not of Parliament. As a matter of principle, we see no reason why civil servants should be in a different position from other members of the public.
The law clerk advanced the point that there is no immunity for ministerial staff when he appeared before ethics committee on April 12, and the committee thought fit in appendix A of the second report to include a summary of his evidence on this very point:
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.
As to that point, the authorities tend to describe the tendency to show deference toward public servants because it is, in a system of responsible government, ministers who, quite rightly, ought to account to Parliament for policy choices and overall government administration.
In the present case, we are not looking to have Messrs. Theis, Singh and Chin account for the merits of helping young Canadians during a pandemic, nor are we looking to discuss the Canada student service grant concept in its broadest terms as the vehicle to deliver the support. They are, bluntly, fact witnesses who directly participated in a number of transactions that led to WE Charity's partnership with the Liberal government being conceived, developed and refined. They personally possess direct knowledge of various transactions and could assist the committee in connecting many of the dots which ministers and senior officials, evidence and documents have laid out.
Reverting back to appendix A, the ethics committee further noted:
Mr. Dufresne argued that because the House of Commons ordered the witnesses to appear, only the House of Commons has the power to absolve a witness from that order.
In debates this year, the government has sought to compare itself to its predecessor. This was also addressed with the law clerk during his April 12 ethics committee appearance, which is summarized at appendix A:
In response to members’ questions, Mr. Dufresne explained that a similar situation occurred in 2010, when a parliamentary committee ordered political staff to appear. At that time, ministers appeared instead of political staff, based on the argument that ministers were the appropriate witnesses to respond to the committee based on the principles of responsible government. However, he noted that that instance was based on an order from the committee and not from the House of Commons.
I would also go further and point out that the committee in question, also the ethics committee, deliberated on escalating the absence of three staff witnesses into a report to the House, but on October 7, 2010, by a five to three vote, negatived a motion to make that report.
In the circumstances, I would argue that the 2010 ethics committee had, by majority vote, accepted the substitution of ministers for the staff witnesses. Indeed, as the law clerk observed, the originator of the order, the committee in that case, judged compliance with it, and by voting against taking further action, it demonstrated it was satisfied.
In short, only the originator of an order can assess compliance or give relief from it. Certainly ministers or even Prime Ministers do not have the authority to waive orders of the House respecting witnesses as the government House leader may claim.
Harry Evans, former Clerk of the Senate of Australia, wrote in a January 29, 1993 memorandum to the chairman of the Senate select committee on the powers, functions and operation of the Australian Loan Council, which forms appendix 5 of that committee's March 1993 interim report:
You have sought advice on the hypothesis that...the Prime Minister may have improperly interfered with a potential witness before the Committee by directing or encouraging that person, namely the Treasurer, not to assist the Committee or to appear before it. The Prime Minister enjoys no special immunity from the provisions relating to interference with witnesses.... Evidence that a minister wished to assist a committee and was deterred from doing so by, for example, threats of dismissal from office, could generate proceedings for contempt....
Since then, the Australian Senate has built up a body of experience with respect to the matter of ordering the attendance of ministerial staff at committees. Pages 566 and 567 of Odgers' recounts:
The question has occasionally arisen as to whether Senate committees may summon ministerial staff and departmental liaison officers to appear before them and give evidence. Such persons have no immunity against being summoned to attend and give evidence, either under the rules of the Senate or as a matter of law. Departmental liaison officers are not in any different category from other departmental officers. From time to time it has been suggested that ministerial staff are in a special category and should not give evidence before parliamentary committees. Such staff have, however, appeared before Senate committees and given evidence, both voluntarily and under summons. In February 1995 the then Minister for Finance, Mr Beazley, declined to allow the Director of the National Media Liaison Service (NMLS) to appear before a Senate committee to give evidence about the activities of the NMLS on the ground that that person was a member of ministerial staff. The Senate passed a resolution directing that person to appear before the committee, and he subsequently appeared and gave evidence accordingly. The preamble to the Senate's resolution pointed out that the NMLS was provided with public funds, and it was stated in debate that the resolution did not set a precedent for summoning ministerial staff, but the passage of the resolution indicates—