I am now prepared to rule on the question of privilege raised on April 29 by the member for Peace River—Westlock concerning the government's failure to table certain documents.
The member argued that the Minister of International Trade failed to fulfill an obligation set out in an order in council by neglecting to table in the House the latest annual reports of the Canadian ombudsperson for responsible enterprise.
Based on a decision rendered by Speaker Fraser on February 5, 1992, the member asserted that this failure deprived members of access to information required to carry out their parliamentary functions, particularly their oversight duties, and frustrated the operation of the House's processes for examining these reports. He therefore submitted that this failure engages the privileges of the House.
The member for Saint-Hyacinthe—Bagot—Acton also spoke in favour of this point of view.
In response, the parliamentary secretary to the government House leader said that the issue raised is one of statutory law, an area in which the Speaker is not empowered to intervene. He further noted that the case at hand differs from the situation in 1992 as the tabling of the ombudsperson's annual reports is not provided for by law, but by an order in council made by the executive. The parliamentary secretary added that the order in council does not include a deadline for tabling the reports. In his view, the matter does not relate to either a legislative requirement or a question currently before the House. Therefore, it cannot amount to a breach of privilege.
The Chair would like to begin by stating that, contrary to the arguments of the parliamentary secretary to the government House leader, the House is the appropriate forum for raising this issue.
To paraphrase Speaker Fraser, while a matter may stem from a statutory requirement, it may still be procedural in nature. Indeed, it is the House that is responsible for determining whether the tabling of a document required by the House has been carried out or not.
That being the case, the Chair must determine the source of the requirement to table the documents in question.
First, it is critical to distinguish documents that are required by a law, an order of the House or the Standing Orders of the House from those that are not. House of Commons Procedure and Practice, fourth edition, states in section 10.14:
A number of statutes set forth the specific circumstances for tabling documents. For example, some statutes require ministers to table annual reports of the departments, agencies and commissions that fall under their administrative responsibilities.
Standing Order 32(1) sets out the procedure to follow for tabling documents belonging to this first category, which are automatically referred to committee for review.
The tabling of the second type of documents, those that fall within the administrative responsibilities of the government but are not required by law, an order or the Standing Orders, is governed by Standing Order 32(2). It is the government's prerogative to decide whether it wishes to table these documents. Moreover, until 1968, this procedure was not automatic, and ministers had to obtain the House's approval before doing so.
In the ruling of February 5, 1992, referenced by the member for Peace River—Westlock, Speaker Fraser drew a link between the tabling of required documents and the ability of members and committees to discharge their functions. As he said on pages 6426–6427 of the Debates:
...all reports, returns and papers to be laid before the House in accordance with the requirements of the statute are automatically referred to a standing committee pursuant to Standing Order 32(5).
Thus, a failure to table any required document has the effect of impeding such committees from carrying out their mandate “to examine and enquire into all such matters as may be referred to them by the House” as stipulated by Standing Order 108(1).
Yet, in the case before us, the mandate and mechanisms providing for the preparation and tabling of the annual reports of the Canadian ombudsperson for responsible enterprise are not set out in a law, an order of the House or the Standing Orders, but rather in an order in council made by the government.
In other words, the House has never required the tabling of this report.
The Journals of the House of February 11, 2022, and March 21, 2023, clearly show that the ombudsperson's previous reports were not tabled in accordance with the law, an order or the Standing Orders of the House, but instead pursuant to the government’s right to table documents under Standing Order 32(2).
Consequently, since no law, order of the House or standing order requires the tabling of these documents, the Chair cannot find that there is a prima facie breach of the House's privileges. However, it is strange that the government did not comply with a tabling requirement that it imposed on itself, and there are other parliamentary avenues available to members who wish to pursue this matter.
For these reasons, I now consider this question of privilege closed. I thank all members for their attention.