I am now prepared to rule on the question of privilege raised on June 7, 2021, by the member for Louis-Saint-Laurent concerning the government’s non-compliance with an order for the production of documents.
First, the Chair wishes to describe the sequence of events that led to the question of privilege currently under consideration.
On two occasions, on March 31 and May 10, 2021, the Special Committee on Canada-China Relations adopted an order requiring the Public Health Agency of Canada to produce unredacted documents. In both cases, the documents were to be sent to the law clerk and parliamentary counsel so that he could assess their contents. The order of May 10 also provided that a report should be made to the House if the documents were not produced within 10 days.
The agency’s refusal led to the presentation of the third report from the committee. It recommended that the House adopt an order for the production of the same documents and that it include the same requirements as the order of March 31.
On June 1, 2021, the House was seized of the matter through an opposition motion, and it adopted an order the next day to have the documents provided to it. The relevant extracts contained the following elements:
(a) these documents shall be deposited with the Law Clerk and Parliamentary Counsel...
(b) the Law Clerk and Parliamentary Counsel shall promptly thereafter notify the Speaker, who shall forthwith inform the House, whether he is satisfied the documents were produced as ordered...
(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;
(e) the Speaker shall cause the [redacted] documents...to be laid upon the table at the next earliest opportunity and, after being tabled, they shall stand referred to the special committee....
Also, the committee, after consulting the Law Clerk and Parliamentary Counsel in camera, may decide to make public any redacted material.
On June 4, 2021, the president of the agency wrote to the Law Clerk and Parliamentary Counsel informing him that the documents sent to him had been redacted because the order of the House did not offer the appropriate guarantees for protecting information related to national security and personal information. He added that the agency was co-operating with the National Security and Intelligence Committee of Parliamentarians and had sent that committee an unredacted version of the documents.
Citing relevant references and numerous precedents, the member for Louis‑Saint‑Laurent stated that the role of the House and its committees in holding the government to account for its actions includes the power to require the production of documents. The member also argued that sending the unredacted documents to the National Security and Intelligence Committee of Parliamentarians is not an acceptable alternative.
He concluded that the government had not complied with the order of the House because it had redacted certain information and had not provided a valid reason for doing so.
There was thus apparently a prima facie case of contempt on which the House must rule, and for which it must determine the appropriate sanctions.
The members for Jonquière and St. John’s-East added that they shared some of the concerns of the member for Louis-Saint-Laurent, while insisting that privacy and national security are not sufficient pretexts for non-compliance with an order of the House. Furthermore, the National Security and Intelligence Committee of Parliamentarians is not a committee of the House and its membership did not include, at least until very recently, representatives of all parties.
In response to these arguments, the member for Kingston and the Islands suggested that, if the Chair deems there is a prima facie question of privilege, the motion that the member for Louis-Saint-Laurent intends to move is not consistent with our customs and practices. Moreover, it offers no mechanism to preserve the confidential nature of the information contained in the documents, which is why they were sent to the National Security and Intelligence Committee of Parliamentarians.
While they are not being challenged, it is still worth recalling that, at the heart of the parliamentary system, and firmly anchored in our Constitution, there are rights and privileges that are indispensable to the performance of members' duties. Thus, one can read the following, at page 137 of House of Commons Procedure and Practice, third edition:
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.
That being said, the Chair is essentially being asked to rule on two very specific questions, namely whether there are limits to the application of this privilege and whether sending unredacted documents to the National Security and Intelligence Committee of Parliamentarians is an acceptable alternative.
As I have already indicated, the member for Kingston and the Islands and the president of the agency are concerned about the lack of regard for national security issues and the provisions for protecting personal information to which the government is normally subject. This is not a new argument. It was the subject of an important ruling from April 27, 2010. While confirming that the House had, at times, agreed to abstain from requiring documents for reasons of national security or international relations among others, Speaker Milliken took care to clarify that it was quite different in an instance where the House expressed its will by adopting an explicit order.
In his ruling, Speaker Milliken, at page 2042 of Debates, responded as follows to the government’s objections:
To accept such a notion would completely undermine the importance of the role of parliamentarians in holding the government to account.
Before us are issues that question the very foundations upon which our parliamentary system is built. In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and in fact an obligation.
House of Commons Procedure and Practice, third edition, adds this at page 985:
No statute or practice diminishes the fullness of that power rooted in House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers....
In accordance with the order of the House of June 2, the Chair tabled a letter received from the Law Clerk and Parliamentary Counsel on June 7, informing him that the documents “were not produced as ordered as they were not unredacted versions.”
After concluding that there was a prima facie question of privilege in his ruling of April 27, 2010, Speaker Milliken, still concerned about the issues raised, deemed it wise to ask members to continue their discussions for a limited period of time before allowing the member who had initially raised the question of privilege to move the usual motion for debate. Indeed, the order in question at the time offered no measure to protect the confidential information contained in the required documents, be it, for example, examining the documents in camera, limiting the number of copies distributed or even providing for their destruction once they had been studied. The result of these discussions would in no way affect his decision, the Speaker's intention was simply to offer a final delay to allow time to reach a compromise.
In the current situation, the order adopted provides that the Office of the Law Clerk and Parliamentary Counsel first examine the documents, redact them using specific criteria and discuss them with the members of the Special Committee in camera. The Minister of Health was also called to appear, and did so on Monday, June 14, in an effort to continue some form of dialogue. It is, however, not up to the Chair to judge the extent of the measures taken, but to note that they were considered. There is thus no reason to allow an additional delay.
The second question relates to the government arguing that there is now a more appropriate forum to deal with documents having national security implications, namely the National Security and Intelligence Committee of Parliamentarians. The committee, which was created by statute in 2017, is composed of members of both Houses with top secret security clearance, who are bound by oaths of confidentiality.
Paragraph 8(1)(c) of the National Security and Intelligence Committee of Parliamentarians Act allows the committee to consider “any matter relating to national security or intelligence that a minister” refers to it. The Minister of Health indicated that she has formally asked the committee to review the documents at issue. However, as the member for Louis-Saint-Laurent and the member for St. John's East have pointed out, the act also made clear that, despite its composition, this body is not a committee of Parliament. It exists outside of Parliament.
In these circumstances, the Chair cannot conclude that the documents submitted to the National Security and Intelligence Committee of Parliamentarians fulfills an order of this House or of its committees. Nothing in the act affects or limits the privileges of the House to order the production of documents, even those with national security implications. It is for the House and not for the government to decide how such documents are to be reviewed and what safeguards are to put in place, if any.
As a result, in the opinion of the Chair, the failure to comply with the order of the House of June 2, 2021, constitutes a prima facie question of privilege.
There is one last point to settle. The Chair has read the wording of the motion suggested by the member for Louis‑Saint‑Laurent in his written notice. It departs considerably from established practice. The scope of this type of motion is limited, as indicated in House of Commons Procedure and Practice, third edition, at page 150, and I quote: “The terms of the motion have generally provided that the matter be referred to committee for study...”
A review of the rare exceptions shows that there was a certain consensus on the procedure to follow and, thus, on the wording of the motion. As Speaker Milliken confirmed in a ruling on March 9, 2011, at page 8842, “The Chair is of course aware of exceptions to this practice, but in most if not all of these cases, circumstances were such that a deviation from the normal practice was deemed acceptable, or there was a unanimous desire on the part of the House to proceed in that fashion.”
There are also precedents that support censure. In short, given that the parameters for such motions are clear and that the practice is well established, the proposed motion should be a motion of censure or to refer the matter to the appropriate committee for study.
Under the circumstances, and since discussions are required, the Chair reserves its ruling and will return to the House as soon as the member is ready to move the appropriate motion.
The table officers and I are available to support and guide the hon. member as he drafts his motion.
I want to thank hon. members for their attention.
The hon. member for Carleton is rising on a question of privilege.
