Madam Speaker, I am rising on a question of privilege.
Today, the Standing Committee on Access to Information, Privacy and Ethics tabled its second report. Following the notice I gave you earlier today once that report was tabled, I would like to present you, Madam Speaker, with this question of privilege.
The second report represents the culmination of the ethics committee’s study of the Liberal government’s ethical messes, created under the guise of helping Canadians during the COVID-19 pandemic, all amounting to a pattern of corrupt behaviour. I will set that aside for a moment.
It also presents the House with what I believe are several contempts and breaches of privilege. I should thank the Chair in advance for the indulgence in hearing my submission because regrettably the second report lays out no fewer than seven matters of privilege. Thankfully though, several of them can be grouped together under common themes, which should help us move through some of those points more efficiently.
For everyone's benefit, and in my view, there are three breaches concerning the failure of witnesses to appear before the ethics committee as ordered by this House on March 25. Then there are a further three breaches concerning the government's instruction to those witnesses to defy an order of the House. Finally, there is a matter of misleading or interfering with the evidence provided to committees by the Minister of Diversity and Inclusion and Youth.
Let me start with the witnesses' failure to appear. On March 25, the House of Commons ordered, as recorded at pages 699 and 700 of the Journals, the following:
That, with a view to support the authority of committees in their important inquiries of public interest:
(a) regarding the study on questions of conflict of interest and lobbying in relation to pandemic spending by the Standing Committee on Access to Information, Privacy and Ethics.
It continues:
(ii) Rick Theis, the Prime Minister's Director of Policy and Cabinet Affairs, be ordered to appear before the committee on Monday, March 29, 2021, at 2:00 p.m.,
(iii) Amitpal Singh, the Deputy Prime Minister's Policy Advisor, be ordered to appear before the committee on Wednesday, March 31, 2021, at 2:00 p.m.,
(iv) Ben Chin, the Prime Minister's Senior Advisor, be ordered to appear before the committee on Thursday, April 8, 2021, at 2:00 p.m.
Further down, it states:
(c) should the Prime Minister instead appear before the committees mentioned in paragraphs (a) and (b), at any of the dates and times mentioned, for at least three hours, the witness otherwise scheduled to appear, and any other witnesses scheduled to appear before the same committee at a later time, be relieved of their obligation to appear pursuant to this order.
This mode of proceeding whereby the House adopts an order in aid of committee proceedings might be unusual, it is not irregular. Australia's Odgers' Australian Senate Practice, 14th edition, for example, notes at page 51, “The Senate may order particular witnesses to appear before committees. The Senate may also order documents to be produced to committees.”
In any event, appendix A of the second report informs us that the committee agreed to report to the House through that appendix that each of the three witnesses were absent at the appointed times. Furthermore, appendix A confirms that the Prime Minister did not appear on behalf of the three witnesses as the House permitted in its order.
It is well known that a question of privilege must be raised at the earliest opportunity. Given that the March 25 decision of the House makes a hybrid creation of a House order an exclusive aid of a committee proceeding, it raises the question as to the correct venue for bringing forward a complaint concerning any breach.
Our procedural authorities suggest that when committees are involved, the matter must first come to the House through a committee report. Pages 152 and 153 of Marc Bosc and André Gagnon's House of Commons Procedure and Practice, third edition, confirms. It states, “Speakers have consistently ruled that, except in the most extreme situations, they will hear questions of privilege arising from committee proceedings only upon presentation of a report from the committee which deals directly with the matter and not as a question of privilege raised by an individual Member.”
On April 12, that is to say on the first day the House sat following the absence of the witnesses, the law clerk and parliamentary counsel was a witness at the ethics committee, and I asked him for his advice in this exchange.
At page 22 of the evidence, I asked:
In this specific case, sir, of an order of the House being issued for persons to appear at committee and documents to be presented or delivered to committee, what process needs to be followed? Does it first need to be referred by the committee chair to the House, or as it is an order of the House, can the issue simply be raised by a member to the Speaker directly?
The law clerk replied:
Normally, the Speakers have indicated in rulings that, if a matter relates to a committee and to information to be provided to a committee, it would generally be the practice to wait for the committee to first address it, giving the opportunity to the committee to determine it is satisfied.
On the basis of the advice I received, I awaited completion of the ethics committee's work before raising this matter on the floor of the House of Commons, as I am doing right now.
Before moving along, there is one further timing aspect I should speak to since I anticipate the Liberals may address it when they answer these arguments. The committee agreed to request a response pursuant to Standing Order 109 from the government to the report. While Standing Order 109 bars motions for concurrence in the report until the response is tabled or 120 days have elapsed, whichever comes first, I would respectfully submit that this constitutes no barrier to a question of privilege.
Bosc and Gagnon are, for example, silent on the matter. Moreover, Standing Order 48(1) clearly directs “Whenever any matter of privilege arises, it shall be taken into consideration immediately.”
Page 81 of Bosc and Gagnon describes breaches of privilege and contempts of Parliament. It states:
Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a Member of the House, is referred to as a “breach of privilege” and is punishable by the House. There are, however, other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges. Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege: tends to obstruct or impede the House in the performance of its functions; ...or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands...
Bosc and Gagnon, on the very next page, favourably refers to the 1999 report of the United Kingdom Joint Committee on Parliamentary Privilege that attempted to set out various categories of known contempt. The eighth item in that list is “without reasonable excuse, failing to attend before the House or a committee after being summoned to do so.” It is followed by the tenth item “without reasonable excuse, disobeying a lawful order of the House or a committee.”
The point is made even more succinctly at paragraph 15.5 of Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 25th edition, which states “Witnesses who refuse to appear may commit a contempt.”
Paragraph 15.7 meanwhile states:
A particular rule which, if disobeyed, may give rise to proceedings for contempt is the refusal or neglect of a witness or other person to attend either House or a committee when summoned to do so.
These issues go to the heart of Parliament's privileges, a body of law which allows us to carry out duties and responsibilities on behalf of our constituents and whose origins are ancient and anchored in the Canadian Constitution.
Page 137 of Bosc and Gagnon observes the following:
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...
Indeed, paragraph 234 of the 1999 U.K. report that I just mentioned notes, “At least since Elizabethan times committees have been examining matters where witnesses were required to appear.” To be clear, that is not referring to our present sovereign, but to Her Majesty's namesake who reigned as Queen of England from 1558 to 1603.
Derek Lee, a former Liberal member of the House, for his part, at page 6 of his 1999 book The Power of Parliamentary Houses to Send for Persons, Papers & Records, dates the origin of this power back to the reign of King Edward III, which spanned half of the 14th century.
Alpheus Todd, a former parliamentary librarian, wrote in his 1840 book The Practice and Privileges of the Two Houses of Parliament, at page 313, “It is an essential and undisputed privilege of both Houses of Parliament, which they possess in common with every other court, to summon Witnesses before them for examination upon any subject on which they may require information to guide them in their deliberations.”
The breadth of these powers rooted in our established role as grand inquest of the nation is described at page 190 of Joseph Maingot's Parliamentary Privilege in Canada, second edition, “The only limitations, which could only be self-imposed, would be that any inquiry should relate to a subject within the legislative competence of Parliament, particularly where witnesses and documents are required and the penal jurisdiction of Parliament is contemplated. This dovetails with the right of each House of Parliament to summon and compel the attendance of all persons within the limits of their jurisdictions.”
A moment ago, I referred to the principle that breaches of privilege at the committee level should first be reported from the committee. Bosc and Gagnon provides some examples of such reports, at page 153, which states:
Most matters which have been reported by committees have concerned the behaviour of Members, witnesses or the public, or the disregard of a committee order. Committees have reported to the House on the refusal of witnesses to appear when summoned; the refusal of witnesses to answer questions; the refusal of witnesses to provide papers or records; the refusal of individuals to obey orders of a committee; the divulging of events during an in camera meeting; the disclosure of draft reports; and witnesses lying to a committee. Committees could report on instances of contempt, such as behaviour showing disrespect for the authority or activities of a committee, the intimidation of members or witnesses, or witnesses refusing to be sworn in.
Maingot, at pages 239 and 240, outlines how Messrs. Theis, Singh and Chin's disregard of the March 25 order of the House amounts to contempt:
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. Thus, disobedience may well be considered contempt, bearing in mind that the House will, in mitigation of any punishment that may be imposed, be mindful of the surrounding circumstances.
Disobedience of rules or orders is an obvious contempt and would include refusing to attend at the Bar of the House after the House had so ordered, refusing to personally attend and to produce the documents requested by a committee (the formal contempt would only be recognized when the committee reported the incident to the House and the House took action)...
As I noted, the matter of a House order for a witness to attendance at a committee is not a common creature. Nonetheless, our House has experienced this disobedience to its orders for witnesses to appear in the House.
Pages 130 to 132 of Bosc and Gagnon recount some of these examples. The first two entries relevant to this question of privilege begin on page 130:
On March 31 and April 1, 1874, Louis Riel (Provencher) was ordered to attend in his place in the House for having fled from justice in the matter of the Red River Rebellion and the murder of Thomas Scott. He failed to attend and was later expelled from the House....
In 1891, the Public Accounts Committee reported that André Senécal, an employee of the Government Printing Bureau, had failed to appear when called as a witness. The House adopted a motion summoning him to appear at the Bar. When he failed to do so, the House ordered that he be taken into the custody of the Sergeant-at-Arms, who could not locate him. No further action was taken.
The latter case concerning Mr. Senécal, a public servant holding the office of superintendent of printing, begins in the House's records at page 454 of Journals on August 27, 1891, when the public accounts committee reported that Mr. Senécal failed to appear when summoned, though the sought-after witness claimed he was following medical advice and, furthermore, had offered his resignation from his government position.
While Bosc and Gagnon noted that no further action was taken concerning Mr. Senécal, it was not for a lack of trying. The acting sergeant-at-arms, Lieutenant-Colonel Henry Smith, informed the House, at column 4747 of the Debates for September 1, 1891:
Mr. Speaker, I have the honour to report that the witness Senécal left Ottawa on or about the 24th ultimo, and, although I have made careful enquiry, I have been unable to ascertain his present whereabouts. In consequence of his absence, the Order for him to attend at the Bar of the House this afternoon, was left with a member of his family at his Ottawa residence.
A further incident, this one involving a member of the House being investigated in a corruption scandal, is recounted by Bosc and Gagnon at page 136. It states:
In 1891, Thomas McGreevy (Quebec West) was accused by Israel Tarte (Montmorency) of corrupt practices concerning construction work in the harbour at Quebec City, and the matter was referred by the House to the Select Standing Committee on Privileges and Elections. Mr. McGreevy refused to answer questions put to him while appearing before the Committee. The Committee reported this to the House on August 12, 1891, and requested that the House take action. On August 13, Mr. McGreevy was ordered by the House to attend in his place on August 18. On that day, Mr. McGreevy was found not to be in attendance and the Sergeant-at-Arms was ordered to take the Member into custody.
The records of the House concerning Mr. McGreevy show that the orders of the House were not mere words printed on paper. When Mr. McGreevy did not appear at the appointed hour on August 18, 1891, column 4001 of the Debates shows that Mr. Speaker Peter White updated the House on the matter. He stated:
I am informed by the Clerk that a copy of the Order of the House of Thursday last, duly signed by himself, was forwarded by post on Friday last to Hon. Thomas McGreevy at Quebec, when it was learned that he was not at Ottawa, and a telegram communicating the Order was at the same time sent to him at Quebec. The manager of the North-Western Telegraph Company at Quebec has informed the Clerk that the telegram was duly delivered to Hon. Thomas McGreevy on Friday last at 2.45 p.m., in the office of the Richelieu and Ottawa Navigation Company.
When the House ordered Mr. McGreevy into custody, Lieutenant-Colonel Smith did not just keep a copy of the order in his pocket; he jumped on a train and he went in pursuit of the absconding MP. Page 422 of the Journals for August 20, 1891, reveals the following entry:
Mr. Speaker informed the House, that, in pursuance of the Order of the House of the 18th instant, he had issued his Warrant to the Acting Segeant-at-Arms for the taking into custody of the Honourable Thomas McGreevy, and that he had received the following report from that office: —
House of Commons
Ottawa, 20th August, 1891.
Sir, — I have the honour to report that I reached Quebec yesterday, at 3 o'Clock, p.m., and at once made diligent search for Mr. Thomas McGreevy at his residence, office and other places, but could not find him. Later I was informed, on what I considered good authority, that he had left Quebec by the Grand Trunk Railway, but I was unable to ascertain his destination. I have no doubt that he left Quebec several hours before I arrive in that city.
I have the honour to be, sir
Your obedient servant,
Henry R. Smith,
Acting Sergeant-at-Arms, House of Commons
In the end, the privileges committee, which had been investigating the corruption allegation against Mr. McGreevy, completed its work and reported back to the House. Bosc and Gagnon note the outcome at page 136:
On September 29, the House adopted a resolution finding Mr. McGreevy guilty of contempt of the authority of the House by not attending in his place when ordered, as well as being guilty of certain other offences. The House then adopted a second resolution expelling Mr. McGreevy.
This was based on the findings of the privileges committee.
Going back to Bosc and Gagnon's list, which I introduced earlier, at pages 131 and 132, the next relevant case is the following:
In 1894, two witnesses (Jean Baptiste Provost and Omer Edouard Larose) failed to appear when summoned as witnesses before the Privileges and Elections Committee. The Committee reported this and asked for “the action of the House”. A motion was adopted summoning the two witnesses to appear before the Bar. They failed to comply and the House ordered them to be taken into the custody of the Sergeant-at-Arms in order to be brought to the Bar of the House. They later appeared, answered questions and were discharged.
This 1894 case concerned two Quebec City grocers who failed to appear when summoned by a committee that was undertaking another corruption investigation respecting a member. They based their refusal on the fact they had not been advanced money for their travel expenses. The witnesses persisted in their refusal, even in the face of an order of the House of Commons but, as noted, the House ordered them into custody and the Sergeant-at-Arms saw to it.
Upon being called to the bar, Mr. Provost and Mr. Larose were each asked by Prime Minister Sir John Thompson the same two questions recorded at pages 299 and 300 of the Journals for June 13, 1894, which state:
1. Have you any explanation to offer of your disobedience to the summons of the Select Standing Committee on Privileges and Elections of this House requiring your attendance before the Committee, and of the Order of The House requiring your attendance at the Bar of The House?
2. Are you prepared to undertake to The House that you will, if relieved from custody, attend and testify before the Select Standing Committee on Privileges and Elections at the first meeting of the Committee and at each meeting thereafter until relieved from further attendance?
Following the two witnesses' positive answers to the latter question, the House discharged them from the custody of the Sergeant-at-Arms.
As for a witness defying an order to appear at committee, at page 548, Odgers comments that Australian Senate orders of this nature have had a different experience from our March 25 order. It states:
In all such cases the orders were complied with and witnesses duly appeared, or, in one case, required documents were produced. They were all public office-holders; this procedure has not been used in respect of private citizens.
The United Kingdom's House of Commons on the other hand, quite recently had an experience closer to our own. In 2018, that House's Digital Culture, Media and Sport Committee reported to the House that as part of its study into “fake news” it had invited, then ordered, Dominic Cummings, who had been the campaign director for the Vote Leave campaign in the 2016 Brexit referendum to appear for the purpose of giving evidence.
Mr. Cummings defied the order and on June 5, 2018, that committee reported to the House that his absence “constitutes a serious interference with the ability of this Committee to discharge the task assigned to it by the House.”
In response, on June 7, 2018, the U.K. House of Commons passed the following motions recorded at pages 1 and 2 of the Votes and Proceedings:
Resolved, That this House takes note of the Third Special Report of the Digital, Culture, Media and Sport Committee (HC 1115);
Ordered, That Mr Dominic Cummings give an undertaking to the Committee, no later than 6 pm on 11 June 2018, to appear before that Committee at a time on or before 20 June 2018.
Page 5 of the Votes and Proceedings for June 20, 2018, shows that the committee's chair reported to the House that Mr. Cummings failed to comply with the House's orders. Then on June 28, 2018, the House referred the matter to its committee on privileges. After the privileges committee reported back to the House of Commons—