Madam Speaker, never has so much effort been put into renewing Parliament as has been over the past decade. Over $5 billion is being spent on renovating Parliament Hill.
Centre Block, with its iconic Peace Tower, has been shuttered since December 2018 so that magnificent building can be restored. Tonnes of rock have been blasted out of the Canadian Shield. Some 40,000 truckloads of rock have been removed to create a pit 75 feet deep for a new underground structure. The leaded windows in the building have been taken out and are being restored. The copper roof has been replaced. The stonework is being repointed. The woodwork is being restored, and the mechanicals in the building are being completely overhauled.
Confederation Building has had its windows completely removed and restored, and the outside of the building has been cleaned and repointed. The outside of East Block has been restored. its stonework has been cleaned and repointed and the copper roof redone. Here in West Block, the quadrangle has been turned into an atrium that houses the glass chamber we now sit in. The stonework looks as bright as the day it was laid, over a century and a half ago. While Centre Block is still undergoing work, the buildings on Parliament Hill are sparkling with new renovations.
However, Parliament is more than its buildings. The essence of Parliament is its procedure and practices, its privileges, its powers and immunities and its authorities. The buildings are secondary. While the buildings gleam and shine, particularly at night, the authorities of Parliament do not. The $5 billion in renovations on Parliament Hill belies a Parliament that is unable to do its job, a Parliament that is unable to fulfill its constitutional role as a legislative and deliberative body that holds the government to account, a Parliament that is unable to deliberate about the Sustainable Development Technology Canada fund because it is unable to get the documents related to that fund, and a Parliament that is unable to hold the government to account because it is unable to get the documents about the Sustainable Development Technology fund.
Let us start from first principles. Our Constitution is the supreme law of this land. The preamble and section 18 of the Constitution Act, 1867 lay out the privileges, immunities and powers of the House. The beginning of the preamble reads:
WHEREAS the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:
Section 18, which was reiterated by Parliament itself in section 4 of the Parliament of Canada Act, reads:
The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.
The preamble and section 18 grant to the House of Commons the unfettered right to send for persons, papers and records. The House of Commons has the unfettered right to order any and all documents. Its right to order the government, or anyone, to provide documents is absolute.
House of Commons Procedure and Practice, third edition, 2017, edited by Marc Bosc and André Gagnon, reads:
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 and records.
Speaker Milliken also affirmed that absolute right of this House to order documents in his rulings of April 27, 2010, and March 9, 2011. Again, I quote from the House of Commons Procedure and Practice, third edition, which states:
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.
The right to order the production of documents is as old as this place itself. The right to order the production of documents is fundamental to the proper functioning of Parliament. The right to order the production of documents is a constitutional power. It is an essential power for Parliament, as a legislative and deliberative body, so that we in this House can legislate, deliberate and hold the government to account.
There is no limit on the kinds of documents that can be requested. The only prerequisite is that the documents exist, that they are either in hard copy or in electronic form and that they are located in Canada. These documents can be in the possession of government, civil society or the private sector.
Again, I will quote from Bosc and Gagnon. Although this passage refers to committees, it equally applies to the House as a whole.
It states:
The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the types of papers likely to be requested; the only prerequisite is that the papers exist in hard copy or electronic format, and that they are located in Canada. They can be papers originating from or in the possession of governments, or papers the authors or owners of which are from the private sector or civil society (individuals, associations, organizations, et cetera).
The power to order documents is absolute. Nothing can impinge on the right of this House to order documents, not unwritten conventions, not common law, not even statute law.
I will quote from the 42nd report of the Standing Committee on Procedure and House Affairs of the 41st Parliament's first session, which states:
Since parliamentary privileges form part of the Constitution, laws must be interpreted and applied in a manner consistent with them, and where there is a conflict between privileges and statutory provisions, the statutory provisions are “of no force and effect” to the extent of the inconsistency. This constitutional principle is a fundamental postulate and organizing principle of the Canadian constitutional structure, and is clearly set out in subsection 52(1) of the Constitution Act, 1982 that provides: “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”
Courts have recognized the special constitutional status attached to parliamentary privilege and the limitations it imposes over their own jurisdiction, and that of the executive.
The government has failed to comply with an order of this House for the documents related to the Sustainable Development Technology Canada fund. This is not the first time. In the previous Parliament, the government also refused to comply with four orders of the House and its committee for the production of the Winnipeg lab documents, even though the House ordered the documents be handed over in secret, under lock and key, so as to prevent the release of information injurious to national security. Incredibly, in the dying days of the last Parliament, the government had the audacity to take the Speaker of the House to court to try and use statute law to defy our constitutional law. It was only after three years that the government recanted and handed over the documents to the House.
Let us compare the government's treatment of Parliament when it asks for documents with how other governments treat their national legislatures.
In the United Kingdom, in the fall of 2018, the House of Commons ordered the government of then prime minister Theresa May to hand over a solicitor-client privileged document in its unredacted form. This was a legal opinion prepared by United Kingdom's then attorney general Geoffrey Cox. He prepared a legal opinion for cabinet about the validity of the Irish backstop in the Brexit deal. The former prime minister resisted handing over the document to the House, and the House subsequently adopted a motion holding the government in contempt, indicating that it had to hand over the solicitor-client privileged document. The former prime minister then complied with that order and handed over the document forthwith.
Let us do a comparison to what happened south of the border when an individual refused to hand over a document to Congress. Steve Bannon refused to appear in front of a congressional committee and refused to hand over documents to it. He was indicted on one count of refusing to appear in front of a committee and a second count of refusing to hand over documents to a committee, and he served four months in prison for that refusal. That is how important the constitutional order in other democracies treats the right of a national legislature to get documents from the government, individuals or civil society. That is why the founders of Confederation wrote the preamble to the Constitution Act, 1867, and wrote section 18 into that act.
Let us compare the government's treatment of Parliament with that of previous governments.
In 1990 and 1991, during the government of former prime minister Brian Mulroney, the solicitor general refused to provide the Standing Committee on Justice and the Solicitor General with documents, citing privacy issues. The Standing Committee on Privileges and Elections concluded that the Standing Committee on Justice and the Solicitor General had the right to insist on the production of these documents and recommended that the House order the solicitor general to comply with the production order.
The House subsequently issued a production order that the documents be presented at an in camera meeting of the Standing Committee on Justice and the Solicitor General. The government complied with the order at the next meeting of the committee, and members of the committee examined the unredacted version of the documents.
In 2009, during the government of former prime minister Stephen Harper, the hon. Ujjal Dosanjh moved the following motion, which was adopted by the House:
That, given the undisputed privileges of Parliament under Canada’s constitution, including the absolute power to require the government to produce uncensored documents when requested, and given the reality that the government has violated the rights of Parliament by invoking the Canada Evidence Act to censor documents before producing them, the House urgently requires access to the following documents in their original and uncensored form:
all documents referred to in the affidavit of Richard Colvin, dated October 5, 2009;
all documents within the Department of Foreign Affairs written in response to the documents referred to in the affidavit of Richard Colvin, dated October 5, 2009;
all memoranda for information or memoranda for decision sent to the Minister of Foreign Affairs concerning detainees from December 18, 2005 to the present;
all documents produced pursuant to all orders of the Federal Court in Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada;
all documents produced to the Military Police Complaints Commission in the Afghanistan Public Interest Hearings;
all annual human rights reports by the Department of Foreign Affairs on Afghanistan; and
accordingly the House hereby orders that these documents be produced in their original and uncensored form forthwith.
I want to emphasize what the order said: “the House hereby orders that these documents be produced in their original and uncensored form forthwith.” In other words, the documents about the Afghan detainees were to be released to the House and to the public immediately, without redactions, for the entire world to see, including the armed combatants fighting Canadian Forces in Afghanistan. The order required the government to immediately and publicly, without any redactions and without any consideration to the injury that could result in the ongoing Canadian Armed Forces military operations in Afghanistan, release the documents.
Understandably, the Harper government was reluctant to release the information publicly. Speaker Milliken ruled that the House had an unfettered right to these documents, but he also sympathized with the government's concerns about publicly releasing information that could be injurious to ongoing Canadian military operations. Therefore, he encouraged the parties to work together to resolve it. The government did exactly that, and six months later, an ad hoc committee was struck. The government handed over all the documents to that committee in the summer of 2010, without redactions, and the committee began its work.
There are two things to note about the Afghan detainee document order that made it different and distinct from the Winnipeg lab document order. First, there were no measures in the Afghan detainee order to prevent the release of information injurious to national security or to the conduct of Canadian military operations. The order mandated that all the documents be released forthwith, publicly, without redactions. Second, the government understood its obligations to Parliament and worked with the opposition parties to produce the documents to the ad hoc committee in six months.
In comparison, the Sustainable Development Technology Canada fund documents contain no information injurious to national security. The government's explanation for defying an order of the House for those documents is that it could be a violation of charter rights. This argument is weak and thin. One suspects that this is because it was the only argument the government could come up with in response to the order. One suspects that, if the reference to the RCMP was not in the order for the documents, the government would find another flimsy excuse not to hand them over. One suspects that the real reason the government will not hand over the documents is not that it would be injurious to the rule of law or to charter rights but that it would be injurious to the government's political fortunes.
There are several ways to end this debate, but there are only two ways to end it in the right way. One is for the government to hand over the documents, and the other is for Parliament to be dissolved and for the matter to be taken to the Canadian people for their decision at the ballot box.
