Derek Lee

[Jobs and Economic Growth Act, April 16th, 2010]

Mr. Speaker, the $200 reference came from the game of Monopoly. It does not have much to do with what we are doing here today, I do not think.

An omnibus bill has a definition generally accepted by the House. The essential defence of an omnibus bill procedure is that the bill in question, although it may seem to create or amend many disparate statutes, in effect has one basic principle or purpose, which ties together all the proposed enactments and thereby renders the bill intelligible for parliamentary purposes.

This bill does not have one principle or thing. It ties together many disparate bills. It is not intelligible or useful for parliamentary purposes. We each get one vote on some 30 different measures, many of which should be stand-alone measures so that we can represent our constituents in dealing with those legislative measures and policy issues. Each of them is arguably quite distinct.

[Jobs and Economic Growth Act, April 16th, 2010]

Mr. Speaker, the member's remarks raise a very important issue. This bill contains financial measures and, like it or not, if the bill fails in the House, we are going to an election forthwith. We will not pass go or collect $200.

I do not know if the member is asking whether or not we are going to have an election now. But he is right, this bill contains measures dealing with changes to Canada Post Corporation. Believe it or not, this bill contains a provision dealing with the complete divestiture of AECL, Atomic Energy of Canada Limited.

In the past there have been separate bills dealing with the divestiture of Petro-Canada and Air Canada. They were separate bills and we debated a major policy issue, but no, in this bill it is buried. It could not help but be buried. When there are 30 tax and other measures in a bill, everything is buried.

[Jobs and Economic Growth Act, April 16th, 2010]

Mr. Speaker, we are continuing our consideration of Bill C-9, the budget implementation bill. When I was speaking yesterday, I felt that I had to bring to the attention of the House what, in my view, was almost an extraordinary package of measures contained in Bill C-9. It was the scope of the measures contained in the bill that struck me. It struck me so much that I feel that there is a procedural anomaly extant here, that the bill is too big, too wide, and harms the ability of the House, of members of the House, to deal with its components.

As I mentioned, and maybe other members have done this, it would probably take me five or ten minutes to go through all the components of the bill if I read each statute and just mentioned what the amendment was all about. There are 11 income tax amendments. There are eight GST-HST amendments. There are a couple of Customs and Excise Act amendments. And there are some 20 other statutes amended.

In order to bring in a budget implementation bill, normally there is a ways and means motion that precedes the introduction of the bill. That is normal. That gives the House a heads-up. In fact, the government must have a ways and means motion adopted before such a bill is introduced.

I would not have a problem, and I do not think anybody would have a problem, with a bill that reflected, give or take, what was in the ways and means motion. If the ways and means motion implementing the budget has 10 or 20 separate items and the budget implementation bill that follows deals with those 10 or 20 separate items, I do not think we could argue that the bill does not reflect the ways and means motion and the ways and means motion does not reflect the budget because there is a theme.

However, in this particular case, the bill goes way beyond both the ways and means motion and what I heard in this House in the budget. I think probably all of us were here to listen to the budget speech,. However, there are things in this bill which were not mentioned in the budget speech and there are other things which were not listed, mentioned, or itemized in the ways and means motion.

What this bill comes forward looking like is what we sometimes call an omnibus bill. It is an omnibus bill. At least that is what some would say at first blush. However, I must say that as I look at this bill, it is not even an omnibus bill.

So, what kind of a bill is it? I will try and tell members why it is not an omnibus bill. But what kind of a bill is it? It is not even on the list of types of bills. It contains so many measures it looks like the House may be in the process of accepting a bill which is not an omnibus bill but which has dozens or hundreds of separate statutory amendments because there does not appear to be a limit.

If we can put 30 or 40 statutory amendments in this bill, why could we not put 50 in another one? How about 100?

This is a little bit like the Texas senate. As I understand it, the Texas senate used to meet for about one week per year. What it did was take all of the legislation it had to deal with and put it into one bill. It had one bill that dealt with the dozens of pieces of legislation it wanted to deal with in the legislative body in Texas, U.S.A. It would meet for a week, debate for a week and pass the bill. Its members were out of town, gone, and it was done. That is how easy it is. Maybe we are heading in that direction. I hope we are not and I am still considering just what the procedural implications are, both at this point and later at committee and then report stages.

There is also another procedure the House has adopted over the years. It is not an omnibus bill issue; it is called the miscellaneous statutes amendment procedure. This is a procedure, which the House has accepted and used for many years, where a whole bunch of miscellaneous minor technical amendments to statutes, 10, 20, 30 statutes, are bundled. The Justice Department bundles them up, creates a bill, and the bill is put through the House. It is usually debated very quickly at second reading and then goes to the justice committee.

If at any point along the way there is objection to any one component of the bill, that component is dropped. Otherwise, the bill goes through and these dozens and dozens of miscellaneous technical amendments are made, passed and done. It is really easy. This is not a miscellaneous statutes amendment bill. This is a budget implementation bill. It is too big and wide.

It is so big and wide that in the 10 minutes we each have here to talk about this bill, we will not actually get a chance to address some of these components. This has serious implications for the way we do our business and there may be another opportunity for me to talk about that in the House.

[Jobs and Economic Growth Act, April 15th, 2010]

Madam Speaker, I think we are on the verge of accepting what may be one of the great parliamentary travesties of the early 21st century. It relates to the comments just made by the previous speaker. If any one of us have looked through this bill, we will see that it is massive in cope. It is not just a budget implementation bill.

Normally in a budget implementation bill there will be a ways and means motion to implement, but it is amazing how few things were in the ways and means motion and how many things are in the budget bill itself.

I am going to bet everyone around here dollars to donuts that about a year from now, unless this is a serious legislative problem, the members on that side of the House will be debating something and they will look to this side of the House and say to the members, “You voted against that measure.”

How many measures will we be voting on in this budget? If we bundle all of the income tax measures into just one item and all of the GST-HST items into just one time that is two items, and I still count 27 separate pieces of legislative change.

I will just talk about me. I get one vote on 27 separate statutory amendments and policy changes. How does that allow me as a parliamentarian to consider, deliberate, debate and analyze what is in a bill that comes forward as a government confidence measure? How fair or appropriate is that?

[Privilege, April 12th, 2010]

Mr. Speaker, this is perhaps by way of rebuttal or reply to the remarks of the Attorney General two parliamentary days ago, just before the break. He took about an hour and a half in his remarks and I am going to be much shorter in my rebuttal, of course, and I hope colleagues will appreciate that. The issues, however, are important and potentially complex.

At the outset, some of the assertions of the Minister of Justice do require some rebuttal, not because it is necessary to banter on about irrelevant things, but because these are words of the Minister of Justice. If some of these pronouncements were to be wrong in representing, as they do, the executive of government, they cannot be left unchallenged in the House.

First, he urged that the principles of necessity and restraint must underscore all matters of privilege, but in saying this he clearly failed to distinguish between the exercise of all powers and privileges of the House, and the raising of a question of privilege in the House. I am certain the Speaker will agree that while those principles reflect aspects of our constitutional functions here, it is not necessary for a member of the House to demonstrate them when raising a defined privilege matter here. I submit that these are diversionary and unhelpful remarks in dealing with these issues.

Second, he said repeatedly in his remarks that this was really just a matter of free speech and debate. He questioned how the expression of contrary opinion about parliamentary powers could lie in contempt of the House. Let us not be misled by this first-year law school sawhorse about free speech. Just because one has free speech, it does not give someone the right to slander another, nor does it give one the right to shout “fire” in a crowded movie theatre.

The issue I raise is not about free speech or opinion. It is about government ministers and the assistant deputy minister of the Department of Justice publicly stating that our parliamentary witnesses, whether ordinary citizens or government officials, do not have full immunity and protection through privilege when they provide evidence and documents to our committees, irrespective of what any statute or convention otherwise provides and, thereby, intimidate witnesses into false observances and obstruct us in our parliamentary inquiry functions. This is the real issue here and I will repeat it later in my remarks.

Third, in a theme that recurred throughout his remarks, the Minister of Justice said that this was just debate about an unclear subject. He said that in administering and enforcing our privileges, we here assembled were not a court of law and that the Speaker will not decide a question of law. On these issues, he could not be more confused.

It is only among the uninformed and the negligently ignorant that the power to send for persons, papers and records would appear unclear. On a matter of the law and the exercise of our privileges and powers, including the power to send for persons, papers and records, this is the only court in the country empowered to adjudicate and act. Those powers and authorities are all part of Canada's Constitution. How desperately embarrassing it is that the Attorney General of Canada could stand in this place and say these things. I want to quote his exact words:

Under the Department of Justice Act, the Attorney General of Canada is the official legal adviser of the Governor General and a legal member of the Queen's Privy Council for Canada. Officers in my department act in principle under my instruction.

There we have it. Not only does the assistant deputy minister of the Department of Justice act under the minister's instruction, her letter was not a fluke or unauthorized. The minister actually takes ownership of it. Now he says he is the official legal adviser to the Governor General. I hope the Governor General will take some advice from the House and always get a second opinion.

He says that I, in this matter, merely expressed an opinion on the scope of the powers of the House to send for persons and papers. That is untrue. I did no such thing. I had no need to describe the scope of the power. It was already written. He may question the power and its scope; I do not. I simply put that power and privilege to you, Mr. Speaker, and the House and say that it is being undermined and slandered in a way that obstructs our witnesses and our committees in our inquiries.

If we do not react and grab hold of this attack now, it will have the impact of hobbling the House in all its future work in one of its essential constitutional functions, that of inquiry and holding government to account.

Fourth, another major deficiency in the submissions of the minister when he cites examples of proceedings in this and other houses and from other observers and writers on the subject of providing disclosure is the failure to distinguish between several types of disclosure procedures, for example: there is a simple request by a member for information; there is a motion for production of papers; an order for papers consented to by a minister under a motion, and we had exactly one of those orders passed here not five minutes ago; a request by a member under the Access to Information Act; a question on the order paper; a question during oral question period; a request from a committee; an order or summons from a committee; and an order of the House.

All of those are mechanisms used by this place and our committees to obtain information, and only two of them, arguably three, the order passed on consent in the House, involve orders of committees of the House. That is the highest and most effective tool, but the others are used on a daily basis around here.

This failure to distinguish is either an attempt to muddle a muddle by throwing Jello at the wall to see if it sticks, or a lack of appreciation of the difference between all these procedures on the part of the Department of Justice. Either way, it is too bad the minister could not have been more precise. I know you, Mr. Speaker, and the Table will assess this as needed and will not be fooled.

Fifth, although the debates, writings and reports in other jurisdictions can be helpful in understanding these issues, I know from our own parliamentary history and records, to the best of my ability, including the research and publication of a book on this subject in 1999, our Parliament's authority to send for persons, papers and records has never been abridged or diminished. I challenge the minister to show where our House has done so. I ask him just exactly where and when and how the House diminished or subtracted or diluted this constitutional power and function. I ask him to please show us. I submit he has not done this at all in his speech.

The minister suggests that because the House and its committees and our members often or usually accept assertions of confidentiality as we do our work, that somehow our PPR power, our power to send for persons, papers and records, has eroded or diminished. In fact, our parliamentary law prevents just that from happening. Citations should not be necessary here, but they can be provided to the Table if required. By analogy, just because nobody has been charged with high treason under section 47 of the Criminal Code in a century, does not mean that this law has eroded or diminished in any way.

Just for the record, here are 10 commonly used categories of confidentiality claimed, used or recognized by our members in governments in Canada in which we manage in the public interest all the time: privacy; solicitor-client privilege; income tax confidentiality; cabinet confidences; Canada Evidence Act restrictions; Security of Information Act restrictions; privacy of the confessional; commercial confidentiality; crown privilege; and national security. That is just 10. There are probably others. If any of these were to obstruct our constitutional powers of inquiry, then all of them would. And if they all did, we in this place would soon, in my view, be out of business in fulfilling our constitutional role as grand inquest of the nation.

There are two or three specific statements from the minister which I believe to be in error and which are material and deserving of correction or clarification.

First, he says in his remarks that in no way was the work of the Special Committee on the Canadian Mission in Afghanistan impeded by the statements or by that letter. I submit that his position has been proven false by the evidence of a witness some days ago at that very committee.

On Wednesday, March 31, the witness, Mr. Cory Anderson, gave his testimony. It is shown in the Hansard of the Committee Evidence No. 04. I will read it. He is asked a question by one of our members, the member for Toronto Centre. I will start with his first statement, “I understand the pressures you're under, and nobody's trying to put you on the spot. I assume you have discussed your presence here and your testimony with your colleagues at the foreign affairs department...And with your superiors?...As well as with officials from the Ministry of Justice?” He answered, “I have”.

The next question was, “And what have they told you?” He answered, “They have told me that my responsibilities as a public servant are not to be admonished”. He uses the word “admonished”. The transcript may have it wrong. It may have been “diminished”. It is not clear to me. He goes on to say, “during the committee hearings. So the ability to speak frankly in a setting like this is made more difficult by interpretations by the Ministry of Justice on what actually pertains to be national security and operational imperatives”.

The next question was, “So you've been told there are certain things you can't tell us.” He answered, “I haven't been told there are certain specific things I can't tell you. What I've been told is that I as a public servant am still under the terms of any public servant, and those are defined by the Ministry of Justice, in my view, quite rigidly”.

I will not read on, but those words clearly indicate the chill factor and impact of that letter and the Ministry of Justice's position on that particular witness. No one has questioned that he is telling the truth.

This looks like obstruction. This smells like obstruction. The witness describes the chill effect of the advice he has received from the justice department. The justice department has even but its position in writing to us. This was in the letter to the law clerk, dated December 9. Talk about a smoking gun.

Second, the minister has misconstrued the work of two committees of the House for his own ends. As fate would have it, I actually sat as a member on both of those committees 19 years ago. I think I am the only member in the House who did and is still here. I cannot allow him to misconstrue the work of those committees in his words here. He has used selective quotes out of context.

The special committee on review of the CSIS act never did find that Parliament had no role in scrutinizing national security matters and in fact recommended the creation of a parliamentary committee especially for that purpose. That very committee did receive classified information as part of its work, and all of that information has been kept in confidence by the members.

In 1991 the House of Commons justice committee brought the matter discussed by the minister before the House. It involved the refusal of the Solicitor General to turn over uncensored documents to that committee. The matter was brought into the House and when the procedure and House affairs committee, to which the matter had been referred on unanimous consent, reported back to the House, fully supporting the powers of our committees, an order of the House was passed, also unanimously, ordering the full production of the documents in camera and taking note of the full committee report as well.

The reference to section 8(2)(c) of the Privacy Act could not have been the basis of the order as the minister says, because in order for that section to come into play, Parliament, we in the House, would have had to have the full power of subpoena as set out in the section in the first place.

The minister says that the House order was grounded in the authority of the Privacy Act. The Privacy Act gives no such powers to the House, as the minister suggests. The House and our committees already have them, and I am being kind when I say that this remark has the potential to mislead the House.

He says that the December 9 letter expressly acknowledges that “all witnesses who testify before parliamentary committees are immune from legal and disciplinary proceedings in respect of their testimony”. That is what he says the letter says. This is simply not true. In fact, the letter states the opposite when it says, a line or two later:

However, that does not mean automatically that government officials...are absolved from respecting duties imposed by a statute enacted by Parliament, or by requirements of the common law, such as solicitor-client privilege or Crown privilege.

This completely rebuts what the minister has suggested to the House. His assertion about the content of the letter, more than once in his remarks, is patently untrue and is an apparent attempt to whitewash the contents of that letter.

Both this House and our courts, as two branches of our constitutional democracy, have powers to bring persons and information before them to enable them in their constitutional functions. Does the minister think that if he or his department had directly called into question the power of those courts to compel persons to attend, there would not be a constitutional crisis undermining our governance and those courts? Does he think that those courts would not react to sanction him and his officials with contempt if he were to do that? Why does he think that he and his department can get away with the same thing in this place? As chief law officer of the Crown, he must know the answers, or he should go and get them quickly.

The fact that we cannot rely on the Attorney General of Canada to provide a clear and objective statement on our parliamentary law is troubling and clearly an issue for another day. We almost ask this. Which master does our attorney general serve when he speaks to the House?

The proceedings in Jamaica in 1808, just about 200 years ago, are very instructive, because an identical issue was before that House and because there were many surprising, factual similarities, including a challenge to the king. I am going to read them. I am hoping, Mr. Speaker, that you will find them of interest, and the public record will benefit. They state:

The House of Assembly, on November 1, 1808, struck a committee to inquire into a mutiny that had occurred earlier that year. On November 2, the House sent a Message to the Governor, requesting copies of all proceedings taken before the Courts-Martial and Courts of Inquiry respecting the mutiny, and the Governor, in turn, communicated the request to the Commander of the Islands' Forces, Major-General Carmichael. The Governor sent the House a copy of the Commander's response, in which the Commander indicated he did not feel authorized or justified in delivering such documents to the House, which letter was tabled on November 17. On November 22, the House sent a Message to the Governor requesting him to cause the attendance of two officers of the Islands' Forces before a committee of the House. The committee reported to the House, on November 29, that their inquiry had been frustrated due to the general order issued by Major-General Carmichael on November 25, which read:

The Major-General feels a paramount duty to apprise any officer, or other person in a military capacity, that may bellowed to appear, that he does not permit them to answer any questions to that Legislative Body of this Island...upon the subject of a late mutiny, or upon the Government and discipline of His Majesty's forces.

The House thereupon unanimously passed six resolutions:

Resolved, 1st. That this House as the representatives of the people, hath of right and ever has exercised within the Island, all the powers, privileges and immunities claimed and enjoyed by the Commons House of Parliament, within the United Kingdom of Great Britain and Ireland.

Resolved, 2nd. That it is the undoubted privilege of the House to send for all papers and records, and to order the attendance of all persons, civil and military, resident within the Island, capable of giving evidence on any subject, under investigation in the House; that to prevent the attendance of witnesses, duly summoned, or pretend to prohibit such witnesses from giving full and true answers to all questions whatever, that may be propounded for discovering the truth, are breaches of the privileges of the House.

Resolved, 3rd. That requiring the attendance of the officers, non-commissioned officers and privates of His Majesty's forces on the House, to be ordered by the Governor or Lieutenant Governor, who heretofore was commander of such forces, in place of bringing them by summons, has been matter of courtesy, in case they might, at the same time, have been ordered on other duty, and is not of right: and that the courtesy of the House has been uniformly returned by an immediate order for the attendance of all such persons, without any attempt to suppress the truth, or garble their testimony.

Resolved, 4th. That as the Grand Inquest of the country, it is the right and duty of the House to inquire into all grievances or matters which happen within the Island, dangerous to the public safety... to the end that such representations may be made to our most gracious Sovereign, or such Legislative measures adopted as shall procure redress, etc.

I skipped number five.

Resolved, 6th. That the assumption by Major-General Carmichael of a power to obstruct this House in the exercise of its rightful functions, inquiring into the causes of a mutiny which has excited the greatest alarm... by pretending to permit or prevent the attendance of witnesses, or prohibit them from answering any questions that by this House, or its Committees, may be thought necessary... is an unconstitutional attempt to deprive this House of its undoubted rights, by an arbitrary exertion of military authority, and a gross violation of the most important privileges of the House.

Following the passage of those resolutions on November 29, the House then ordered Major-General Carmichael to attend at the Bar on December 1.

The next day, November 30, Major-General Carmichael wrote to the Governor, [and essentially said, “I decline to attend. I am not going to show up. I work for His Majesty. Not coming.”]

The Governor communicated the letter to the House by Message, which was tabled. The House then adjourned. When the House reconvened on December 1, without the attendance of Major-General Carmichael, the House unanimously ordered:

That Major-General Carmichael be taken into the custody of the Sergeant-at-Arms, for a contempt of this House, in not attending at the Bar this day, to be examined touching a breach of the privileges of the House; and that Mr. Speaker do issue his warrant accordingly.

The House then passed a number of resolutions declaring certain actions of the Governor to have been breaches of the privileges of the House.

That is the Governor to be in breach of the privileges of the House.

On the same day, the House was commanded by the Governor, by Message, in the King's name, to attend upon him in the Council Chamber. The Governor then delivered a speech:

The House of Assembly having ordered the attendance of Commander of H.M. Forces at the Bar, and intending, as it appears to me, to enforce that order, a measure certainly novel, and giving rise to a question of the greatest magnitude, as it tends, in fact, to devolve the command of any British army in this Island upon that House, I feel it incumbent upon me, however I lament any interruption to that harmony subsisting between the different branches of this Legislature, to take such measures as shall bring so important a point before the highest authority, previous to any further proceedings.

In code words that means the matter was taken to the King of England.

What is interesting is this,

The Governor then prorogued the Assembly until December 27.

We are no strangers to that procedure around here.

The new session was not opened, however, until April 25, 1809 [about four months later]. In his address to the House, the Governor said:

I have it in command from His Majesty to acquaint you that he has been graciously pleased to direct a copy of the minutes of the Court-Martial to be laid before you, pursuant to your message of 2nd of November last.... And I am also to acquaint you that the officers whose attendance you requested me to procure, by your message of the 22nd of November last, will be directed to attend you, without being subjected to the restrictions contained in Major-General Carmichael's order of the 25th of November last....

The House, however, was not satisfied. Following the reading of certain Journal entries in respect of Major-General Carmichael, the House ordered:

That Mr. Speaker, pro tempore, do issue his Warrant for taking into custody Major-General Carmichael, who was ordered into custody during the last Session on a Resolution of the House, that he had violated its privileges, and for a contempt of the House in not attending on Mr. Speaker's Summons, to be examined touching the said breaches of privilege.

On April 26, [a day later, following, I guess, a throne speech something like we have here,] Major General Carmichael was brought before the Bar of the House in the custody of the Serjeant-at-Arms. The Speaker invited him to make a statement concerning his breaches of the privileges of the House. Following Major-General Carmichael's statement, the House discharged him.

The next day, April 27, [the House still not satisfied] the House passed an Address to the Governor in respect of the King's order to Major-General Carmichael to attend the House. The House rejected the implied necessity of the King's order, and again reasserted the House's power to compel the attendance of witnesses under its own authority. The address read [in part]:

Every right and privilege exercised by the Commons House of Parliament within the United Kingdom of Great Britain and Ireland, being inherent in the representatives of the people of this Island, met in General Assembly, we cannot receive as a favour, depending on the direction of His Majesty's Government, the attendance of witnesses required by the House; nor can we recognize its authority to remove the unconstitutional restrictions attempted to be imposed by Major-General Carmichael's order of the 25th of November last, which supposes the power of continuing such restrictions, or renewing them, when deemed expedient.

They rejected any authority in the King to constrain the House's witnesses.

Mr. Speaker, Parliament's role and powers to inquire and obtain information is fundamental to our role and function in our democracy. Were it otherwise, a component of our governance, our grand inquest, would be set aside, impaired and the scrutiny by this House would be crippled; and that has never happened in our entire history. Never has the right of our House to inquire been set aside or displaced and now the minister would suggest that this is not so. This purported, contorted, false and shirking constitutional definition put forward by the minister is not the Parliament designed by our ancestors, some of whom gave their lives to create and sustain it.

In advocating that a Parliament in Canada would be less than it was created to be, the minister invites us to open the door to a potential, silent, secret tyranny that, if not now then some day will be abused and misused by those with seditious, self-interested political purpose.

While our Constitution cannot be amended on the run, and we take some satisfaction from that, we cannot stand idly by when these suggestions are put forward by a government in this House. Our people are free and have the tools, including our Parliament's power of inquiry, to assure us that our governments are accountable to the people and not just to the legions of the self-interested and the powerful. This place serves all of our citizens and not some Holy Grail of centralized power. We have the constitutional provisions to do our job here and we will get the job done.

In conclusion, the law empowering our House to send for persons, papers and records was written long ago. The meaning and reach of that law has not changed in three centuries. The attorney general has failed to state that law here. He did not state what the law was in his remarks, not once, and he has not been able to show in any way how Parliament itself has changed it. If this law had changed, then it had to exist in the first place and he has failed to describe either, even though our constitutional law clearly provides that our parliamentary law on persons, papers and records does not change unless explicitly provided for. No House and no court has, to the best of my knowledge, ever found to the contrary, and the attorney general has not identified any decision of this House or any statutory change that explicitly changes our parliamentary law.

We do have one example in 2002 of the House actually taking steps to avoid narrowing our power of inquiry which could have resulted from a change to the Canada Evidence Act post-9/11 to better protect national security, and which was improperly described by the Minister of National Defence on December 10 as actually restricting the House. If that law actually did apply to this House, why has the government not invoked the silencing provisions of sections 37 and 38? The answer is that it knows that it cannot.

The minister's statement falsely states both that the act was strengthened to apply to Parliament, and second, that those who provide evidence to Parliament were bound by those so-called new restrictions. These false words, delivered in public, have the direct effect of slandering the powers and role of this House in deterring our witnesses, particularly those in the ranks of the armed forces, of which he is the minister.

These remarks demand retraction or clarification to protect the dignity of this House, our privileges and our function as the grand inquest. Second, the impact of the December 10 letter from the assistant deputy minister of justice has been put to the House consistently here in the debate, including the testimony of a public servant who indicates that his testimony was constrained by that advice from the Department of Justice.

On the continuing partial compliance and partial default of the government in complying with the order of this House on December 10 to provide documents. While it certainly is a circumstance reflecting breach of privilege, I would look forward to recognition of the House powers and provisions here in the House for screening and protecting sensitive documentation while at the same time making full disclosure to the special committee members on a need-to-know basis while protecting from broader public disclosure.

I would be prepared to move a motion, which I would want very much to be in collaboration with other parties and individuals in the House, and I will do my very best to do that should you, Mr. Speaker, find this to be a prima facie breach of privilege.

[Privilege, March 31st, 2010]

Mr. Speaker, I am really seeking the guidance of the Chair here.

The minister has provided a very substantive reply to the initial interventions. It covered about an hour and a half, and while I am prepared to reply now, it might be a more effective engagement on these significant issues if I, and perhaps some of the others, had additional time, taking us into tomorrow or into the week that follows the break. However, I am prepared to reply now if you think that would be helpful.

[Privilege, March 18th, 2010]

I choose my words very carefully. This letter from the assistant deputy minister, Department of Justice, breaches the privileges of the House by, in effect, laying for witnesses a false basis for refusing to provide disclosure to the House or its committees after being ordered to do so.

These contemptuous suggestions are found in paragraph 4 on page 2 of the letter. They read:

Of course, there may be instances where an Act of Parliament will not be interpreted to apply to the Houses of Parliament (or their committees). However, that does not mean automatically that government officials—who are agents of the executive, not the legislative branch—are absolved from respecting duties imposed by a statute enacted by Parliament, or by requirements of the common law, such as solicitor-client privilege or Crown privilege. This is so even if a parliamentary committee, through the exercise of parliamentary privilege, may extend immunity to witnesses appearing before it. A parliamentary committee cannot waive a legal duty imposed on government officials.

I feel like reading it again, but the record will stand. This is a clear indication that public servants, government officials and probably even the public cannot be protected by Parliament if they respond to questions at a parliamentary committee.

To me, these words are sad and shocking coming from the Department of Justice and the legal advisers to the Crown. In my view, they undermine the entire structure of parliamentary accountability and the constitutional law I have already outlined.

I am going to give three citations to the House that articulate the powers of the House with reference to the possibility that other public statutes may appear to get in the way. The first is Maingot, second edition, page 20. It states:

...a privilege may not be diminished, prejudicially affected, or repealed save by express statutory enactment to that effect.

Second, Beauchesne, 4th edition, page 96 states:

No general statute or order in council can override the privileges, immunities and powers of the Commons. As the prerogatives of the Crown can only be given away or delegated to others by the consent of the Crown stated in express terms, so the rights, privileges and immunities of the House of Commons cannot be taken away by implication or by vague terms of any statute, but only by the express words of the law or by the express resolution of the House.

In this particular case, House of Commons v. Canada Labour Relations Board, [1986] 2 F. C. 376, the Federal Court of Appeal held that it is a well established principle that an express provision of a statute is necessary to abrogate a privilege of Parliament or its members.

The problem here is not just the assistant deputy minister of justice's being wrong and fully disregarding any reference to parliamentary law and Parliament's constitutional purpose, but it actually describes that government officials would not be absolved from respecting statutory duties if required to testify before a committee.

These are not the words of an ordinary citizen over the counter at Tim Hortons. These are the words and pronouncements, the position, of the Department of Justice over the hand of the assistant deputy minister for the public law sector.

These and other words in this letter show no knowledge or regard for the law of this institution and betray on the part of the department a shocking and unprofessional ignorance of parliamentary law, and that law binds our democracy together. If these words were crafted with others and with ministerial approval, in my view it would constitute a conspiracy to undermine Parliament and the ability of the House to carry on its constitutional functions.

Either way, in simple ignorance or with subversive intent, this document over the hand of the assistant deputy minister of justice constitutes a contempt and cannot be allowed to stand under our Constitution.

I gave written and polite notice of my concern over this opinion to the assistant deputy minister on January 27. There was a polite reply, although it was not a substantive reply.

On the issue of obstruction, I am going to provide three very quick citations on the matter of obstruction of witnesses. The first, and colleagues will forgive me for going back so far in history, is from the year 1700, from the United Kingdom House of Commons, Westminster. It reads:

...that if it shall appear that any person hath been tampering with any Witness, in respect of his evidence to be given to this House, or any Committee thereof, or directly or indirectly hath endeavoured to deter or hinder any person from appearing or giving evidence, the same is declared to be a high crime and misdemeanour; and this House will proceed with the utmost severity against such offender.

That is from the United Kingdom's Journal of the House of Commons, February 21, 1700, volume 13, page 350.

Second, I will bring it a little bit further into the present. This is from Erskine May, 21st edition, page 131:

Any conduct calculated to deter prospective witnesses from giving evidence before either House or a committee is a contempt.

Just to be really precise about this, here is a third quote, from Erskine May, same volume, page 132:

This matter was considered in 1935 by a committee of the Commons which reported that, in its opinion, it was a breach of privilege to give any advice to a witness which took the form of pressure or of interference with his freedom to form and express his own opinions honestly in the light of all the facts known to him; and the House resolved that it agreed with the committee in its report.

The proceedings in 1991 in the justice committee and in this House involving the persons known as Légère and Gingras may for some have raised at that time arguably legitimate questions as to the extent of the power to send for persons, papers and records. Speaker Fraser seems to have allowed for that, notwithstanding his clear 1987 words referred to earlier.

At this time, 18 years later, following the report of the committee that reviewed that subpoena power, the unanimous House order to the government to turn over the unexpurgated documents to the justice committee at that time, the 1999 publication of a book here on this very subject, and the publication of two editions of House of Commons Procedure and Practice, there are no uncertainties, in my view, or questions unanswered.

There is no unclear law as to the powers of the House and its committees.

I would like to reuse, with some licence, the dictum, “There are none so blind as those who will not see, read or learn”. Those who purport to govern and administer Canada must be taken to know the place of the Magna Carta and the events of 1648, as messy as they were; 1689, the Bill of Rights; 1867, our Constitution; and 1982, in our constitutional history. They must also be taken to know the constitutional accountability of the government to this elected House with all its inquiry functions.

Canadians do not elect governments; they elect a House. The breach by that party, the alleged breach that I have brought to your attention here today, is in this light a cardinal insult to this House and all Canadians represented here.

If the breaches were co-ordinated in a conspiracy.... Perhaps I should not use that word in the criminal sense, but if people get together to bring this to us and present this in a certain way, then I say that if they did that, it would be constitutionally seditious and immediately deserving of sanction.

Lastly, there is no place in this country where this issue can be raised and acted on. There is no department of government and there is no court allowed to interfere. There are no other persons who can come into this House to protect the constitutional foundations of this country, only the 308 persons here. So if we do not stand up for our Parliament's role on behalf of Canadians, then there is no one else out there to do it. It is an attempt to undermine the work of Parliament and its committees that I place before the House today. If we do not stand up, those efforts to undermine our Constitution will have succeeded. We cannot let that happen.

I will close in saying that I am, of course, prepared to move an appropriate motion if you find a prima facie case here. I indicate to all colleagues, including those who will rise on this matter today, that there is the opportunity to work in a non-partisan, collaborative way to craft a resolution, to craft a motion that would suit the needs of the House and the people of Canada. I say that because at some point the Speaker will have to make a ruling and there is only so much time we have to work on this. But it is possible; it is not impossible.

[Privilege, March 18th, 2010]

Mr. Speaker, I am happy to be able to take up this matter with the House this morning. It is probably going to take a few minutes. I hope members will bear with me. I gather there are other colleagues who wish to do the same.

Mr. Speaker, I brought notice of this question of privilege to you on February 18, prior to the resumption of the House. The issue stretches back to approximately December 1, when I rose in the House to bring to the attention of the House the words of the Minister of National Defence in response to a question in question period. They were words that I believed would potentially obstruct witnesses before our committees.

I brought three matters to your attention. Today, I am going to refer to one as a prelude, the one dealing with the words of the Minister of National Defence. Second, there is one organic matter that I believe is a breach of our privileges, involving correspondence from the Department of Justice to our law clerk and parliamentary counsel here in the House of Commons.

In all three instances, but technically in just two here today, these actions taken or not taken here, in my view, impugn, obstruct or derogate from the inquiry powers of the House as an integral and core function. It is part of our constitutional legislative function here as grand inquest of the nation.

No citation should be needed here, but for the record, and I am not going to quote them, I will simply list the three citations: the words of Edward Coke in the year 1671, from the Institutes of the Laws of England, volume 4; Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, 1916, page 70; and the Supreme Court of Canada in Canada v. Vaid, S.C.R. 2005, page 20, not that any court validation is constitutionally necessary for us here.

These benchmarks reflect 340 years of bedrock constitutional history. I have selected these dates to show the length of time this constitutional provision has remained the same. It has not varied for 350 years. If anyone thinks it has, I invite them to find a precedent anywhere in the developed world where there is a parliament.

Initially, these laws were developed in Westminster. I have gone back 350 years to show one of the routes taking us right into modern Canadian law, with that citation from the Supreme Court of Canada. I am not making this up as I go along, and we in Parliament are not making this up as we go along. This is a three-century bedrock constitutional power.

One of the powers and privileges we have here in this inquiry function is the power to send for persons, papers and records. The powers among those described in the Erskine May classic definition of privilege are in edition 21 on page 69. I will not read them, as members have heard them hundreds of times.

The power is also codified in our House Standing Orders, specifically in Standing Order 108(1)(a). The key words are that we are “empowered to examine and inquire” and that we are empowered to send for “persons, papers and records”. These are also bedrock and elementary House of Commons 101 constitutional law principles. If anyone disagrees, again, let them find a precedent or let them make an amendment to our Canadian Constitution.

I also need to make two quick reference points just to shape my remarks. The power to send for persons, papers and records exercised by the House and its committees is whole, complete and unabridged.

The delegation of this complete power from the House to its committees in Standing Order 108 is full and unconditional. There are no words, phrases, precedents, events or statutes that distinguish this power in the hands of committees from that of the House itself, and I cite the words of Speaker Fraser on March 17, 1987, when he said:

I think it is important to emphasize, in case there should be any misconception in any quarter concerning the powers and functions of parliamentary committees, that committees appointed by this House are entitled to exercise all or any of the powers that this House delegates to them. These powers include the right not only to invite witnesses to appear but to summon them to appear, if necessary.

If there is non-compliance, a separate enforcement procedure or punishment procedure or coercion, usually a contempt matter, can be initiated in the House, sometimes relying on the Sergeant-at-Arms. Our committees would not usually have this enforcement power on their own, unless the House were to pass a statute specifically for that purpose.

This separation of the subpoena power from the enforcement, coercion and punishment power and procedure has confused some, even some of us in the House. By analogy, the House of Commons and Parliament pass and adopt criminal laws, but we do not enforce them. The police and the courts do. However, this does not mean that Parliament does not have the full power to pass the criminal laws in the first place. An order issued pursuant to a power to send for persons, papers and records is full and complete and binding, and failing compliance, enforcement and punishment can be pursued and has been.

I note that many of our administrative tribunals and our cousins in the American congressional houses and committees also have a similar separation of the enforcement procedure, which they have assigned to civil or federal courts. This assignment in no way derogates from the fullness of their subpoena powers.

My second point of reference is that many Canadian statutes refer to bodies or agencies that have a power to compel attendance or the production of documents. This House of Parliament under our Constitution, of course, is not included among those references. As far as I can determine, this House and its powers are distinct from every other organ of government, and no statute is needed to provide for those powers and no statute or constitutional provision abridges those powers and the associated privileges, other than has been done explicitly in the Parliament of Canada Act. Such statutory references as compelling the production of documents or attendance do not describe Parliament and are not helpful for analysis or comparison.

What are the breaches? First, the words of the Minister of National Defence, I would say, describe a prelude to the breach. The Minister of National Defence declared in an answer in question period on December 1, 2009, that:

There is a mandatory obligation on public officials to ensure that when information is released, it is in compliance with the Canada Evidence Act.

....With respect to information, I think most people, even the hon. member, can understand that we want to protect operational matters, information received from other countries, other sources, confidential sources, national security. Those are the reasons these documents are being examined by the Department of Justice.

I thought those words constituted an attempt to mislead, or that they actually do mislead, the public and the House on the obligations of witnesses, including government witnesses and all persons, to respond to orders to appear and to answer questions or provide documents to our House committees.

The minister says those documents can only be released to the Special Committee on the Canadian Mission in Afghanistan under the provisions of the Canada Evidence Act. That is what he said to the House. More importantly, the words are simply not just wrong and misleading but also, coming from a government minister and Minister of National Defence, they have, in my view, the direct effect of obstructing House and committee witnesses by intimidating the witnesses, especially armed forces personnel and public servants, from complying with House requests and orders.

He says that statutes of general application prevent persons from complying with orders of this House for documents. However, under our law and our constitution, persons under a House of Commons order are not prevented by statutory provisions from complying, and all of our witnesses, I repeat, all of our witnesses, have the full protection of our Houses and constitution-based privileges and no such procedure may be taken up or questioned in any Canadian court.

I submit that these words constitute, whether through misunderstanding, ignorance or malice, I am not sure, a slander of our parliamentary core powers, and they serve directly or indirectly to undermine our country's constitutional order, which gives this House the obligation to hold the government to account.

I am going to move to the second item now.

In a letter dated December 9, 2009, the assistant deputy minister, Public Law Sector, Department of Justice, wrote to our law clerk and parliamentary counsel. That letter and the reply by Mr. Walsh, our law clerk, were made available to me at my request following their circulation to a member or members of the special committee I referred to earlier.

The letter outlines the position of the Department of Justice on the application of acts of Parliament to officials of the Government of Canada.

I would table both these letters with consent or simply make copies available to the Chair.

Do I have consent to table the letters?

[Business of Supply, March 17th, 2010]

Tell us what the prerogatives are.

[Business of Supply, March 17th, 2010]

Madam Speaker, there is a lot of stuff I just heard that seems to be, let us just say, made up.

His colleague, the government House leader, says that government does not stop during a prorogation. That is probably true. However, Parliament sure as heck does. The current government shut it down dead. There are still committees of this House that are not up and running yet. We were shut down between December 30, 2009, and March 3, 2010, and that is the truth.

His colleague said there are prerogatives of the Prime Minister. Does he think the Prime Minister is king? What are those prerogatives? Tell us now what the prerogatives of the Prime Minister are.