Mr. Speaker, I rise to respond to the question of privilege raised on June 7, 2021, by the member for Louis-Saint-Laurent in respect to the order adopted on June 2, 2021. In reviewing the lengthy intervention by the hon. member, I want to raise two issues with respect to the motion the member proposes to raise if the Speaker agrees that there is a prima facie question of privilege in this matter.
First, the practices of the House clearly demonstrate that the Speaker has the discretion on the type and substance of a motion to be moved when the Speaker finds a prima facie question of privilege or contempt. There are two avenues that the House can consider in the event of finding a prima facie question of privilege. They are to either refer the matter to the procedure and House affairs committee or find a member, the government or an institution of the government to be in contempt of the House.
This is not what the member is proposing to pursue. The member is suggesting a substantive motion with many separate elements for which formal notice would be required. The member for Louis-Saint-Laurent stated in his intervention:
That brings me to the remedy which I am prepared to propose in a motion, should you agree that there is a prima facie case of contempt here.
In the interest of giving members appropriate notice of where this debate might go, the motion I intend to move would do the following things: (a) it would find the Public Health Agency of Canada to be in contempt; (b) it would order the Minister of Health to attend in her place, here in this House, to produce documents that have been ordered; (c) it would then require the minister to be questioned by the House; (d) finally, it would set out the procedures for this questioning because the old practices followed when the witness would be summoned to the House for questioning, which the curious could find explained in a search of Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, do not fit neatly into our contemporary rules and ways of doing business.
Page 150 of House of Commons Procedure and Practice, third edition, states, “The Speaker would be reluctant to allow a matter as important as a privilege motion to fail on the ground of improper form. The terms of the motion have generally provided that the matter be referred to committee for study or have been amended to that effect.”
That is not what the member is proposing. The member's proposed terms of the motion represent a substantive motion for which notice would be required. Therefore, I suggest that the member can propose a motion of censure or to refer to the matter to the committee for study. That is the long-standing practice of this House.
The second matter I would like to raise is the lack of any meaningful mechanism to ensure that the confidential information that may be contained in the papers ordered to be provided are not made public. The member is proposing that the Minister of Health table unredacted documents in the House, thereby placing these documents into the public domain. This approach ignores the mechanism that was in the order adopted by the Special Committee on Canada-China Relations on May 10, 2021. That order provided:
(a) these documents shall be deposited with the Law Clerk and Parliamentary Counsel, in an unredacted form, within 20 days of the adoption of this order;
(b) the Law Clerk and Parliamentary Counsel discuss with the committee, in an in camera meeting, information contained therein, which in his opinion, might reasonably be expected to compromise national security or reveal details of an ongoing criminal investigation, other than the existence of an investigation, so that the committee may determine which information is placed before a committee in public....
The in camera meeting being the critical part.
The safeguards, like those contained in the motion adopted by the Special Committee on Canada-China Relations, are nowhere to be found in the proposed motion of my hon. colleague. This is a clearly a very dangerous and, quite frankly, clumsy oversight. The government has proposed using the National Security Committee of Parliamentarians, otherwise known as NSICOP, to undertake this work given the nature of the information contained in the documents and the expertise of the members of the committee in matters of national security.
Just as the then Conservative government did in 2010 with the Afghan detainee documents, the government is proposing a similar process that respects the balance of interests between the right of parliamentarians to have access to information and the obligations of the government to protect information related to national security.
NSICOP has a broad mandate to review Canada's legislative, regulatory, policy, administrative and financial framework for national security and intelligence. It may also review any activity carried out by a department that relates to national security or intelligence.
Committee members come from both Houses of Parliament. It is a body that was created by an act of Parliament by parliamentarians. All members hold top-secret security clearances and are permanently bound to secrecy under the Security of Information Act. Members swear an oath or solemn affirmation indicating that they will obey and uphold the laws of Canada and not communicate or inappropriately use information obtained in confidence as part of their responsibility on the committee.
NSICOP was created for exactly these types of situations and is an appropriate place for the review of these documents. The government has provided unredacted documents in response to this motion. The Minister of Health has referred this matter to NSICOP and the government through the Public Health Agency of Canada, provided a copy of the unredacted documents to NSICOP and informed the Law Clerk and Parliamentary Counsel of this on June 4, 2021.
It is critically important that there be an appropriate mechanism in place to ensure information that may be injurious to Canada's interests, could compromise national security or the privacy rights of Canadians, or relate to an ongoing criminal investigation, be protected. Providing unredacted documents to NSICOP is the appropriate and reasonable approach. Unfortunately, the House Leader of the Official Opposition has dismissed this option entirely.
Speaker Milliken clearly acknowledged the need to balance these interests in his ruling on April 27, 2010, which is directly relevant to the matter before the House. He said:
Several members have made the point that there are numerous ways that the documents in question could have been made available without divulging state secrets and acknowledged that all sides in the House needed to find a way to respect the privileges and rights of members of Parliament to hold the government to account, while at the same time protecting national security.
The government, for its part, has sought to find a solution to the impasse.
Speaker Milliken then states the following in relation to putting a mechanism in place to ensure this balance is struck:
The Chair must conclude that it is within the powers of the House of Commons to ask for the documents sought in the December 10 order it adopted. Now it seems to me that the issue before us is this: Is it possible to put in place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain? In other words, is it possible for the two sides, working together in the best interests of the Canadians they serve, to devise a means where both their concerns are met? Surely that is not too much to hope for.
Since the member raises precedence from the Australian legislature, I too would like to point out that the Australian legislators have experience putting in place mechanisms to deal with requests for sensitive information. I would draw to the attention of members an excerpt from Speaker Milliken's 2010 ruling. He said:
In some jurisdictions, such as the Legislative Council in the Australian state of New South Wales, and I would refer members to New South Wales Legislative Council Practice by Lovelock and Evans at page 481, mechanisms have been put in place, which satisfy the confidentiality concerns of the government as well as those of the legislature. Procedures provide for independent arbiters, recognized by both the executive and the legislature, to make determinations on what can be disclosed when a dispute arises over an order for the production of documents.
Page 986 of House of Commons Procedure and Practice, 2017, elaborates on this matter:
In cases where the author of or the authority responsible for a record refuses to comply with an order issued by a committee to produce documents, the committee essentially has three options. The first is to accept the reasons and conditions put forward to justify the refusal; the committee members then concede that they will not have access to the record or accept the record with passages deleted. The second is to seek an acceptable compromise with the author or the authority responsible for access to the record. Normally, this entails putting measures in place to ensure that the record is kept confidential while it is being consulted. These include in camera review....
In conclusion, Mr. Speaker, I suggest that you have the power to ensure that if there is a finding of prima facie contempt, the motion to deal with the matter is either a motion to censure or a motion to refer the matter to committee for further study. NSICOP was created for exactly these types of situations and is an appropriate place for the review of the documents. As I stated, this body was created by an act of Parliament by parliamentarians.
The government remains open to discussions with the opposition on how to balance the right of members to consider unredacted documents with the need to protect sensitive information from public disclosure that could be injurious to Canada's interests.