Madam Speaker, the motion on the floor of the House tonight asks the House to find the Public Health Agency of Canada to be in contempt for its failure to obey three orders, one being an order of the House and the other two being orders of the Special Committee on Canada-China Relations, and to order the president of the Public Health Agency of Canada to appear at the bar of the House to receive a formal admonishment and deliver the unredacted documents ordered by the House.
The issue in front of us today is simple. Has the government complied with the order made by the House on June 2 of this year and the two orders made by the special committee on March 31 and May 10 of this year, orders which mandated that the government provide the unredacted documents concerning the government's National Microbiology Laboratory in Winnipeg, Manitoba? The answer is clearly no.
These three orders are binding. They are not resolutions of the House or its committees. They are not an expression of the opinion of the House or of its committee. They are orders that must be complied with, just as Canadians have been required to comply with the public health orders of the government during the last 15 months of the pandemic, orders that concerned quarantines, movement, mask-wearing and many other things.
Since the adoption of the order on June 2, the government has said it has given the unredacted documents to NSICOP. That is not where the House order specified the unredacted documents be delivered to. The House order was clear. In part (a) it states:
(a) these documents shall be deposited with the Law Clerk and Parliamentary Counsel, in both official languages, within 48 hours of the adoption of this order
NSICOP is not the Law Clerk and Parliamentary Counsel. It is that simple. The government does not get to decide what part of a binding House order it gets to comply with and what part of a binding House order it gets to ignore, just as Canadians do not get to decide what part of quarantine orders they get to comply with and what part of quarantine orders they get to ignore.
Let us set aside for a moment the fact that the House order compels the government to deliver the documents to the Law Clerk and Parliamentary Counsel. Let us set aside for a moment that House order. Let us think about, in general terms, in the absence of these three orders, whether or not NSICOP is the appropriate place to hold the government accountable.
In our Constitution there is only one place to which the government is accountable and that is the House of Commons. We do not elect governments in Canada. We elect a legislature of 338 members, out of which a prime minister and government are appointed by the Governor General, on the assessment of the Governor General as to which member has the support of the majority of the members of the House. That is why this place is the only place in the land where the confidence convention exists.
The government's accountability to the House is not just a singular moment when it is appointed based on that assessment. The government's accountability to the House is not just the confidence convention. It is the daily and ongoing proceedings of the House and its committees, through question period, through committees, through debate, through votes and through so many other proceedings.
One reason that NSICOP is not the right place to hold the government accountable is that NSICOP is not a committee of this place. It is not a committee of the other place. It is not a committee of Parliament.
The act that governs NSICOP is the National Security and Intelligence Committee of Parliamentarians Act, and in subsection 4(3), under “Not a committee of Parliament”, it states:
The Committee is not a committee of either House of Parliament or of both Houses.
Not only is it not a committee of Parliament, but MPs and senators on NSICOP actually give up their parliamentary rights. Subsection 12(1) of the act says:
Despite any other law, no member or former member of the Committee may claim immunity based on parliamentary privilege in a proceeding against them in relation to a contravention of subsection 11(1) or of a provision of the Security of Information Act or in relation to any other proceeding arising from any disclosure of information that is prohibited under that subsection.
Furthermore, subsection 5(1) of the act governing the committee says:
The members of the Committee are to be appointed by the Governor in Council, on the recommendation of the Prime Minister, to hold office during pleasure until the dissolution of Parliament following their appointment.
In other words, members of NSICOP hold office at the pleasure of the Prime Minister.
Subsection 6(1) of the act says:
The Governor in Council is to designate the Chair of the Committee from among the members of the Committee, on the recommendation of the Prime Minister.
In other words, the Prime Minister decides who will chair the committee.
Subsection 16(1) gives the minister the authority to refuse information requested by the committee. Paragraph 8(1)(b) gives a minister the right to block the committee's review of any matter. Subsection 21(5) gives the Prime Minister the power to direct the committee to revise reports and remove information. It says:
If, after consulting the Chair of the Committee, the Prime Minister is of the opinion that information in an annual or special report is information the disclosure of which would be injurious to national security, national defence or international relations or is information that is protected by litigation privilege or by solicitor-client privilege or the professional secrecy of advocates and notaries, the Prime Minister may direct the Committee to submit to the Prime Minister a revised version of the annual or special report that does not contain that information.
These provisions allowing the Prime Minister to direct the committee to revise reports on the Prime Minister's opinion that information is injurious to national security, national defence, international relations or solicitor-client privilege are so broad and all-encompassing that they give the Prime Minister great latitude to see reports revised that might be embarrassing to the government.
NSICOP is not a committee of Parliament. Its members give up the rights they have as parliamentarians. Its members and its chair serve at the pleasure of the Prime Minister. Any minister has the broad latitude to refuse the committee information and to block a committee's review, and the Prime Minister has the broad power to change committee reports before they are made public.
All of this is not new. It is the exact criticism Information Commissioner Suzanne Legault gave in her testimony about Bill C-22, which passed in the last Parliament and now governs this committee. Clearly it is the wrong committee to hold the government accountable. It is like the fox guarding the henhouse, and that is why it is the wrong committee for the redacted documents to be sent to.
The argument I have just made about NSICOP being the wrong committee is really beside the point, because the three orders of the House and its special committee are clear. The unredacted documents are to be sent to the Law Clerk and Parliamentary Counsel, not to NSICOP.
I have heard the government make reference to the fact that NSICOP is similar to committees that exist in other democracies. That is not accurate. NSICOP is not similar to the U.K.'s Intelligence and Security Committee. Unlike NSICOP, the U.K.'s Intelligence and Security Committee is not under the control of the British prime minister. In addition, the U.K.'s Intelligence and Security Committee is a committee of Parliament. It consists of nine members, one of whom is the chair. While the prime minister nominates candidates for the committee, both houses of Parliament must confirm their respective parliamentarians, and both the House of Commons and the House of Lords have the power to reject the nominated candidates. Also, the chair of the committee is not appointed on the recommendation of the prime minister, but is elected by committee members at the first meeting of the committee.
As a result, the U.K.'s Intelligence and Security Committee has autonomy from the Prime Minister and the government. It is a committee of Parliament, with the ability to hold the British government accountable.
The government has said it will not hand over the documents because it is concerned about national security. That argument is not cogent, because in all three orders of the House and its special committee, a provision was made to protect national security or any details of an ongoing criminal investigation. In the order adopted by this House on June 2, paragraph (d) says:
(d) the Law Clerk and Parliamentary Counsel shall confidentially review the documents with a view to redacting information which, in his opinion, could reasonably be expected to compromise national security or reveal details of an ongoing criminal investigation, other than the existence of an investigation;
There is a difference between the three orders with respect to the Winnipeg lab documents and the House order of December 2009 that required the previous Conservative government to hand over documents concerning Afghan detainees. The difference is this. All three orders of this House and its special committee in this Parliament regarding the Winnipeg lab documents have provisions to protect national security and any details of an ongoing criminal investigation. The House order of December 2009, which had been moved by Mr. Dosanjh on December 10, 2009, contained no such provisions. It simply ordered the government to hand over the documents about Afghan detainees in their original and uncensored form forthwith, which meant they would have to be immediately and publicly released without any redactions. We took great pains in the drafting of these three orders for the Winnipeg lab documents to address the national security concerns expressed by the government at that time.
Another point to make is this. The first two orders adopted by the special committee had the support of all members of the committee, including members of the ministerial party. That was not an oversight. The members of the ministerial party knew exactly what they were voting for and knew exactly what the order of the committee said. Therefore, even members of the ministerial party believed the government must hand over these documents to the House and the special committee.
Since March 31, two and a half months ago, the government has ignored these orders, and now its ignorance has caught up to it. Initially, the government hid behind the Privacy Act, ignoring parliamentary supremacy and ignoring the fact that paragraph 8(2)(c) of the Privacy Act itself grants an exemption for personal information that is disclosed in compliance with an order made by a body with jurisdiction to compel the production of information.
After that argument did not seem to hold any more water, the government hid behind the excuse of national security, ignoring the fact that all three orders made provisions for the protection of national security. The reality is that one has to conclude that the government is doing nothing more than buying time to avoid providing this House and its special committee with information, hoping the clock will run out with the adjournment of the House next week on Wednesday.
My colleagues and I have not taken this decision lightly to pursue this motion of censure and to call the president of the Public Health Agency of Canada to the bar. We understand the constitutional implications of this and we understand the stress that public servants at the Public Health Agency of Canada must be feeling. However, there are bigger issues at stake here, including the strength of our parliamentary institutions, their rights and their privileges, which have been under immense pressure in the last year, some would even say in retreat because of the restrictions of the pandemic.
Since March 31, we have repeatedly urged the government to comply with the order. We have given the government ample time to comply with the orders, making clear the consequence of not doing so, including earlier this week at the special committee meeting on Monday evening. Despite all these admonitions, despite all these urgings, the government has chosen not to comply.
I make one last appeal to the government at this late hour. I urge the government to comply with the orders of this House and its special committee and deliver the unredacted documents to the Law Clerk and Parliamentary Counsel of the House. I urge all my colleagues in the House to vote for this motion if the government continues to refuse to comply with these orders.