Greg Fergus

[Business of Supply, November 21st, 2024]

We will resume.

The Chair would like to make a statement regarding the current supply period, ending December 10, 2024.

Since September 26, 2024, the House has been seized with privilege motions. As stated in Standing Order 48(1), “Whenever any matter of privilege arises, it shall be taken into consideration immediately.” Accordingly, any potential breach of privilege or contempt of the House must be examined without delay.

Our practices and traditions also give a privilege motion priority consideration over other orders of the day, based on the long-standing principle that for our House to carry out its work effectively and authoritatively, its rights and dignity must be upheld at all times.

House of Commons Procedure and Practice, third edition, explains at page 151:

A privilege motion once under debate has priority over all Orders of the Day including Government Orders and Private Members' Business. However, the debate does not interfere with Routine Proceedings, Statements by Members, Question Period, Royal Assent, deferred recorded divisions or the adjournment of the House.... Should debate on a privilege motion not be completed by the ordinary hour of daily adjournment, this item will take priority over all other Orders of the Day at the next sitting.

Members are now familiar with this principle.

The House also has an undoubted responsibility to grant supplies, which are the sole gift of the House to the Crown, as outlined in Standing Order 80(1). This is the reason estimates are tabled in the House periodically. On Monday, November 18, 2024, the President of the Treasury Board tabled the supplementary estimates (B) for the fiscal year ending March 31, 2025. The Standing Orders, notably Standing Order 81(17), prescribe a mechanism to dispose of those estimates no later than December 10.

In addition, the responsibility for the estimates must be balanced with another fundamental principle, that of allowing the opposition to present its grievances, through motions examined during supply days, before the House can adopt supplies. These days are commonly referred to as opposition days. Four more opposition days must be held during the supply period ending on December 10.

Without presupposing how or when the House will deal with its various questions of privilege, as we get closer to the end of the current supply period, the Chair wishes to encourage the House leaders to keep these various principles in mind. I am confident that they can find ways to reconcile these important responsibilities.

I thank all members for their attention.

The hon. member for La Prairie on a point of order.

[Points of Order, November 19th, 2024]

I am now prepared to rule on the point of order raised on November 18, 2024, by the member for Edmonton Strathcona regarding the wearing of lapel pins in the House.

During Oral Questions that day, the Chair cautioned all members to be mindful in this regard. The member for Edmonton Strathcona argued that pins are regularly worn in the House without them being considered props. The Chair undertook to consider the matter and return to the House. Other members also intervened briefly on this matter.

Using visual displays of any kind to illustrate remarks or to emphasize positions in the House is normally considered a breach of decorum. Typically, members are called to order by the Chair when they use displays that cause disorder, no matter what message is conveyed. This extends to the wearing of buttons and lapel pins.

As stated in House of Commons Procedure and Practice, third edition, at page 618:

While political buttons and lapel pins have not been considered exhibits as long as they do not cause disorder, the Speaker has interrupted a division to request that certain Members remove “props” from their lapels.

In a ruling on a similar matter, Deputy Speaker Savoie stated on June 23, 2011, at page 980 of the Debates:

We are in a grey zone because in many cases some buttons or scarves have been allowed. It seems to me from reading the precedents that the test is whether they cause disorder, and apparently they have this evening. I would ask that the buttons be removed.

As several members pointed out, including the members for Edmonton Strathcona and Kitchener Centre, there are sometimes situations where members of all parties wear pins, ribbons or displays to show their support for a particular cause and this elicits no reaction. In other cases, objections are raised as some feel they are being used as props to emphasize a political point about which there is some disagreement.

The Chair is in no way commenting on the worthiness of any particular cause, as I know members, as do all Canadians in general, hold strong views on a variety of subjects. However, our practice in this place is that members express their points of view through their words and their votes rather than through displays. Therefore, the litmus test just described, that is, whether a button or a pin causes disorder, will continue to guide the Chair in enforcing this rule of decorum.

Now, given the wide scope of interpretation involved, the Chair seeks the co-operation of all members to be judicious in choosing to wear buttons or pins and to be equally judicious in choosing to raise their concern with the Chair. I ask all members for their co-operation in this regard.

The hon. member for Mégantic—L'Érable on a point of order.

[Privilege, October 29th, 2024]

I am now ready to rule on the question of privilege raised on October 7, by the member for Thornhill concerning public access to Parliament Hill.

In her intervention, the member for Thornhill alleged that an officer of the Parliamentary Protective Service, PPS, prevented a member of the public from accessing the grounds of Parliament Hill, ostensibly because of his political ideology. This interaction was videorecorded and then posted to social media.

The member for Thornhill argued that the officer was applying some sort of political test by which a person would be barred from accessing the parliamentary precinct if they did not support a particular cause, in this case relating to Palestine.

The member contended that in similar circumstances, if a member of Parliament had refused to identify themselves as a “supporter of Palestine”, they would have also been barred from the Hill, constituting a breach of their right of access to the parliamentary precinct. She concluded by declaring that no member or individual should be denied access to the grounds of Parliament Hill because of the political views they hold. The issue should therefore be considered by the Standing Committee on Procedure and House Affairs.

The parliamentary secretary to the government House leader countered that no member of Parliament was impeded in accessing the precinct nor, in fact, involved in the incident. Therefore, there was no question of privilege. The member for New Westminster—Burnaby made a similar argument, pointing out that the fundamental right of access to the precinct free of obstruction is enjoyed by members of Parliament. It does not extend to members of the public.

The Chair will first address the member for Thornhill's assertions that members' privileges were breached because of the interaction that occurred between a PPS officer and an individual on October 5, 2024. The Chair will then provide members with some information on the administrative protocol for the use of Parliament Hill's front lawn by various groups for organized demonstrations and other types of events.

As stated in House of Commons Procedure and Practice, third edition, on page 110, and I quote, “In circumstances where Members claim to be physically obstructed, impeded, interfered with or intimidated in the performance of their parliamentary functions, the Speaker is apt to find that a prima facie breach of privilege has occurred.”

In those cases, there must be demonstrable evidence that a member, or the House collectively, was impeded in fulfilling their duties for a prima facie question of privilege to be found. House of Commons Procedure and Practice, third edition, on page 148, also states, “In deliberating upon a question of privilege, the Chair will take into account the extent to which the matter complained of infringed upon any Member's ability to perform his or her parliamentary functions or appears to be a contempt against the dignity of Parliament.”

Recently, in another ruling on September 23, 2024, which can be found at page 25726 of the Debates, the Chair stated, “The member must demonstrate, concretely, how they, or the House, were impeded in the discharge of their functions, and, most important, that evidence exists as to the material interference.”

To this I can add that any alleged breach of privilege that is being complained of must be an actual breach, not a hypothetical one. While members' freedom of access to the Hill is well documented in many precedents, none of these suggest that this privilege extends to public access to the Hill for demonstrations.

With these important principles in mind, the Chair examined the events of October 5, 2024. After reviewing the video on social media that captures a portion of the interaction and consulting the House security partners, the Chair cannot conclude that members were denied access to the parliamentary precinct, nor was the situation related to any proceeding of Parliament. This is therefore not a prima facie question of privilege.

Before concluding, the Chair would like to share with members some additional information about organized demonstrations and other types of events on the front lawn of Parliament Hill. By default, the grounds of Parliament Hill are open to the public. The front lawn is also accessible to those who wish to organize a demonstration to highlight a particular cause or political concern. We are all used to seeing demonstrations on the front lawn and in the vicinity of the precinct.

Decisions about the use of the grounds of Parliament Hill are made under the authority of the Committee on the Use of Parliament Hill. The committee is co-chaired by the House of Commons Sergeant-at-Arms and the Senate Director of Corporate Security, on behalf of their respective Speakers. Its membership also includes representatives of various government departments.

A key consideration for this group is to ensure that any use of the grounds remains peaceful and incident-free and to protect the safety of all visitors to the Hill and those who work in the precinct. I can assure all members that this protocol is entirely administrative and that no member of Parliament, nor the Speaker, is involved in the operation of this protocol.

Groups that want access to Parliament Hill for specific activities, such as holding a public demonstration, must first obtain authorization from the Committee on the Use of Parliament Hill. The committee reserves the right to change the conditions included in a public event permit. It can also cancel activities for security reasons, or even refuse permits on that basis.

On the day in question, a group of pro-Palestinian demonstrators had requested and received permission to organize an event. A space on the front lawn was designated for their demonstration, and the members of their group and sympathizers with their cause were directed to that space as they arrived.

Anyone present on the Hill that day could access the grounds. Pro-Palestinians demonstrators were directed to one area, while the general public and any counter-demonstrators were directed away from the grounds where the demonstration was taking place. Other parts of the front lawn and other parts of the precinct remained accessible to visitors.

To be clear, the events from that day followed well-established guidelines, which are in place to ensure the safety of everyone wishing access to Parliament Hill, including the demonstrators, any counter-demonstrators and the general public.

At no time was there any general directive to refuse access to the Hill on the basis of political views. The PPS followed its operational guidelines pertaining to the often challenging situations that they face daily. These guidelines are in place to preserve the safety and security of all people present on Parliament Hill.

I thank all members for their attention.

[10th Anniversary of Attack on Parliament Hill, October 22nd, 2024]

Hon. colleagues, thank you for your kind words on this sad anniversary.

Many of us remember that day 10 years ago, and many of us can picture that day 10 years ago, but it affects us all.

We all mourn the terrible and senseless death of Corporal Nathan Cirillo. We honour him and remember his sacrifice and his service to our country. Our hearts and prayers are with his loved ones, who miss him still.

We also remember and honour the strength and courage of our Parliamentary Protective Service personnel on duty that day, our heroes who put their own lives at risk without hesitation to keep us all safe. We have colleagues serving today who bear the scars of that day. Out of respect to all members of the Parliamentary Protective Service and the RCMP, I will not individually name them, but on behalf of all of us, I want them to know that we see them, we recognize them and we recognize their service and devotion to this place. From the bottom of our hearts, we thank them all.

If I may, I would also like to recognize three ordinary Canadians who the hon. member for Timmins—James Bay directly brought to our attention. These incredible Canadians, in an extraordinary way, stepped into a dangerous situation and provided succour to Corporal Cirillo in his hour of need. Margaret Lerhe was a nurse who tried to save Corporal Cirillo's life, Martin Magnan held the corporal's hand and Barbara Winters told Corporal Cirillo in the final moments of his life that he was loved.

We also remember all those who helped our community in various ways that day and thereafter. We thank them. We thank those who ran to Corporal Cirillo and tried to save him, as well as those who stood by him with love and compassion in his last moments.

Countless others, ordinary people and others in uniform, found themselves living an impossibly dangerous moment and acted with bravery and humanity to do whatever they could to help others. Ten years later, the healing continues. Some scars can be seen, others are invisible, but all are lasting. We never deny them. We recognize them and try to come together as a community to find healing and peace.

Canada's Parliament is the seat of our democracy. Any attack in this place is an attack on all Canadians. The safety of each and every one of us and all who visit us is a constant priority for our parliamentary community. We can also commit to doing our part to contribute to a respectful workplace and a community that cares for its members and leaves no one behind.

We recognize that the attack 10 years ago led to a loss of innocence. We cannot take it back, but we can move forward knowing we share a commitment to ensuring that Parliament Hill, our workplace, is safe and secure for all of us who work here and all Canadians who come here to see their democracy in action.

Thank you for your attention.

[Points of Order, October 8th, 2024]

I am now ready to rule on the point of order raised on September 23, 2024, by the member for Mississauga—Erin Mills concerning the alleged violation of Standing Order 116(2) at the Standing Committee on Public Accounts.

The member explained that while the committee was still debating a substantive motion that day, the chair proceeded to the putting of the question on the motion, despite her clearly manifested intention to continue debating the motion. This, she argued, violated Standing Order 116(2), which prevents committee chairs from cutting off debate on a motion when there are committee members still wishing to debate it. She asked the Speaker to use the authority conferred in Standing Order 116(2) to nullify the proceedings on the motion in question and to allow the member to voice her views on it prior to the committee coming to a decision.

The member further intervened on September 26, 2024, to emphasize that the Standing Order is in place to safeguard committee members’ right to participate in debate on motions before they are put to a vote and a final decision is taken. She asserted that this is so regardless of whether the committee chair is acting intentionally or not.

In response, the chair of the committee, the member for New Brunswick Southwest, assured the House that he believed that the debate had concluded with no further members wishing to speak to the motion. He explained that he did not do so precipitously, wanting to ensure that no member of the committee wished to make additional remarks. He explained that, from his perspective, the member for Mississauga—Erin Mills had indicated a desire to speak, but only after the question had been called. He also explained that he had informed the member and the committee that the question had been put and that the only remedy would be for her to appeal his decision. His ruling was ultimately sustained by committee members.

Until now, Standing Order 116(2) had only been invoked twice since coming into effect on September 18, 2017. This Standing Order specifies that:

(a) Unless a time limit has been adopted by the committee or by the House, the Chair of a standing, special or legislative committee may not bring a debate to an end while there are members present who still wish to participate. A decision of the Chair in this regard may not be subject to an appeal to the committee.

(b) A violation of paragraph (a) of this section may be brought to the attention of the Speaker by any member and the Speaker shall have the power to rule on the matter. If, in the opinion of the Speaker, such violation has occurred, the Speaker may order that all subsequent proceedings in relation to the said violation be nullified.

As a point of general process, committee chairs should never prematurely end debate while there are still committee members wishing to speak. This key principle is what Standing Order 116(2) is meant to safeguard.

Standing Order 116(2) also empowers the Speaker to exceptionally intervene in procedural concerns arising in committee proceedings without a report from a committee.

Called upon to rule for the first time on the operation of the standing order, Speaker Regan stated, on April 1, 2019, at page 26496 of the Debates, and I quote:

At the very core of this new provision, then, stands the desire to allow committee members to participate fully in their deliberations without being unduly stopped from debating matters until their natural conclusion. Defence of this mattered to the extent that it was, in fact, fortified with a recourse, and a new authority for the Speaker, in the event of a clear violation.

He indicated in the same ruling:

Essentially, it seems to the Chair that this new rule is intended to safeguard debate in committee from a procedural hijacking, so to speak, that would permanently end debate on a motion.

The Speaker reviewed the events that occurred at the Standing Committee on Public Accounts on September 23, 2024, including relevant video clips, as well as the back-and-forth discussion that occurred between the member and the committee chair.

I would like to make three points about those events. First, it was helpful that the member first raised her concerns about wishing to speak to the motion in committee before doing so in the House. This made it easier to follow the chain of events.

Related to that discussion in committee, and my second point, is an argument advanced by the committee chair, as to the fact that the chair's decision was appealed and sustained. This has no bearing on the procedural soundness of the proceedings on the committee motion. As Standing Order 116(2)(a) denotes in its last sentence, and I quote: “A decision of the Chair in this regard may not be subject to an appeal to the committee.”

Therefore, this is not an argument that I considered in assessing this point of order and all members need to be mindful that this is not an option when such situations arise during debate in committee.

Third, the Speaker is convinced that the member for Mississauga—Erin Mills sincerely believed that she had flagged her intent to speak again on the motion and had reason to believe that the committee chair would recognize her before putting the question on the motion. I am equally satisfied that the committee Chair thought that no other committee member wished to continue debate. With that said, from viewing the video of the meeting, it would certainly appear that very little time was afforded to committee members by the chair to indicate their desire to continue debate on the motion before the question was put.

These points provide important context in considering this matter. There is no evidence of an intent to manipulate the process of debate by the chair's proceeding to a decision on the motion in question in this instance, but rather this appears to be a misunderstanding between the member and the chair. The member for New Brunswick Southwest seems to have operated in good faith in presiding over the committee proceedings on September 23, 2024.

That being said, such a miscommunication between the committee chair and the member for Mississauga—Erin Mills seems to have led to the unfortunate circumstance of the member missing an opportunity to contribute to debate.

Nevertheless, in the circumstances, I cannot conclude that the committee chair violated Standing Order 116(2). The proceedings of the committee on September 23 can stand. The Chair's decision is in part influenced by the fact that this is still a relatively untested standing order, and that guidance has not really been provided to committee chairs. Going forward, it is likely that the Chair will take a more rigid approach.

Accordingly, to avoid a repetition of this situation, I wish to provide guidance for the benefit of all committee chairs and members.

When a chair begins to discern that debate is nearing completion, before putting the question, they should take great care to ensure that no other members might wish to debate a motion. For instance, they should call for “resuming debate” or ask members if they are ready for the question. This is similar to the practice in the House and one that committee chairs should emulate.

As well, when members wish to have their name added to the speaking list in committee, they should also ensure they receive an acknowledgement from the chair or the clerk that their name has been added to the list. As members know, it is often the committee clerk who maintains a speaking list for use by the chair. Indeed, it is a best practice that the committee clerk maintains such a list.

I thank all members for their attention.

The hon. member for Nepean is rising on a point of order.

[Unparliamentary Language, October 8th, 2024]

Yesterday, during question period, the Chair indicated that the Leader of the Opposition had used language directed at the Minister of Foreign Affairs that was deemed to be unparliamentary. In fact, it was very similar in nature to language used earlier this year by a member who accused the Leader of the Opposition of pandering to an odious regime. At the time, that member was asked to withdraw the comment.

Therefore, yesterday, I asked that the Leader of the Opposition do the same, namely, to withdraw his comment at the earliest opportunity. To date, this has not happened. We will soon find ourselves at the time of day when the Leader of the Opposition normally undertakes one of his most important roles: leading question period. Members will recall that, when the Leader of the Opposition was himself the subject of unparliamentary language, to which I just referred, members of his caucus took great offence and made that perfectly clear to the Chair occupant. The Chair, very rightly, insisted on a withdrawal. As such, I am sure members can appreciate that I must do the same in the present circumstances.

Our parliamentary system entails abiding by the rules that members have made for themselves in the House and that they have entrusted to the Speaker and other Chair occupants to enforce.

Disregarding the authority of the Chair, who is tasked with enforcing these rules, has a corrosive effect on our proceedings. I would ask all members to reflect on this, especially the House officers for each party. Ultimately these situations also leave an increasingly negative impression for the public on the important work of the House and its members.

The Leader of the Opposition is an experienced member; he is well versed in our practices and procedures. He knows that, in our system, the role of the Leader of the Opposition is to ask questions of the ministry, ensure that it is held accountable for its actions and challenge its decisions. His role is not to make the government comfortable, quite the contrary; however, his actions must also be exercised within the existing boundaries of parliamentary decorum.

Over the past few months, there have been two occasions where he has not heeded the Speaker's rulings regarding unparliamentary language during question period. A first instance resulted in him being named and the second resulted in questions being removed from his party. Yesterday's events have resulted in a third instance.

The Leader of the Opposition should withdraw the comments he made yesterday during question period. If he is not willing to do so, the Chair will not recognize him for the remainder of today's sitting.

The hon. member for Berthier—Maskinongé has three minutes and 40 seconds to finish his intervention.

[Privilege, October 1st, 2024]

I am now ready to rule on the question of privilege raised on September 17, 2024, by the member for Leeds—Grenville—Thousand Islands and Rideau Lakes on the alleged failure of a witness to provide information to the Standing Committee on Access to Information, Privacy and Ethics.

In his intervention, the member referred to events described in the 12th report of the committee, presented to the House earlier that day. The report alleged that a witness, Mr. Stephen Anderson, failed to answer questions and refused to produce specific documents ordered by the committee following the adoption of two distinct motions. Specifically, Mr. Anderson repeatedly refused to provide the name of an individual he had referred to in his testimony.

The member made reference to a question of privilege he raised on March 20, 2024, concerning the 17th report of the Standing Committee on Government Operations and Estimates and the subsequent finding of a prima facie case of privilege, noting its similarities with the current situation. He added that this incident goes further. In addition to failing to respond to questions, Mr. Anderson also disregarded orders of the committee for the production of documents. The member argued the current situation also constitutes a prima facie contempt of the House.

In reviewing this matter, the Chair took into consideration the arguments made by the member for Hamilton Centre, who supported the assertions made by the member for Leeds—Grenville—Thousand Islands and Rideau Lakes.

The Chair also considered carefully the committee's report. After presenting the sequence of events and describing the attempts made to receive the requested information, it concludes with, and I quote, “having not received the documents requested from the witness, and, most significantly, the name referenced during the committee meeting of Wednesday, July 17, 2024, continuing to be withheld, [the] committee feels it is their duty to place these matters before the House at this time so that the House may take such measures as it deems appropriate.”

The Chair notes that two privileges enjoyed by committees have allegedly been breached. These are rights fundamental to the proper functioning of Parliament.

With regard to answering questions put by members of a committee, it is worth reiterating that witnesses are obliged to provide answers to questions from the committee. According to House of Commons Procedure and Practice, third edition, at page 1081, “refusal to answer questions or failure to reply truthfully may give rise to a charge of contempt of the House, whether the witness has been sworn in or not.”

In terms of ordering the productions of documents, Standing Order 108(1)(a) delegates this power from the House to its committees. Indeed, as Speaker Milliken stated in a ruling from March 9, 2011, at page 8841 of the Debates, and I quote, “the power of committees of the House to order papers is indistinguishable from that of the House.”

In light of the above and given the importance of protecting the powers accorded to the House to fulfill its duties, the Chair finds the matter to be a prima facie question of privilege.

Accordingly, I would now invite the member for Leeds—Grenville—Thousand Islands and Rideau Lakes to move his motion.

[Points of Order, October 1st, 2024]

I am also now ready to rule on the point of order raised on September 27, 2024, by the member for Edmonton Strathcona concerning an alleged personal insult made by the member for Calgary Heritage during a statement delivered pursuant to Standing Order 31.

In her intervention, the member for Edmonton Strathcona alleged that the member for Calgary Heritage used a personal insult directed at the member for Burnaby South earlier that day in his statement. She noted that the Chair had made a ruling recently about personal insults directed towards other members. She suggested that the member for Calgary Heritage should be asked to withdraw his comment and apologize.

As I indicated in my ruling of September 26, 2024, I remain very concerned about the tendency to use overly personal criticism and insults. I also concluded my ruling, found at page 25926, of the Debates, by inviting, and I quote, “members to be more judicious in their choice of words and behaviour. If they are not, the Chair will have no choice but to discipline those members who persist in their unparliamentary behaviour.”

The Chair has reviewed the statement made by the member for Calgary Heritage and finds certain words indeed constituted a personal attack on the member for Burnaby South.

The member for Calgary Heritage should have been aware that his words were problematic as I had warned one of his colleagues a few days before during Statements By Members against using the exact same terms. As I have stated before, there are ways to make our point without resorting to personal insults. As a result, the member for Calgary Heritage will not be recognized until such time as he withdraws his offending words.

I thank all members for their attention.

The hon. member for Don Valley West is rising on a point of order.

[Points of Order, October 1st, 2024]

I am now ready to rule on the point of order raised on Wednesday, September 25, 2024, by the member for Edmonton Griesbach concerning comments made during question period that same Wednesday.

Midway through question period that day, at a point when the Chair was standing and calling the House to order, heckles coming from one side of the House could be heard. The source of the comment was not immediately apparent to the Chair, nor was it to the editors of the Debates, who attributed them to “an hon. member”.

After question period, the member for Edmonton Griesbach rose on a point of order, claiming that the comments were clearly homophobic, and asking the Chair to look into the matter. Several other members referred to this specific situation the following day, on Thursday, September 26, pressing the Chair to rule on it. At some point, accusations were made directly toward the member for Sherwood Park—Fort Saskatchewan, who was suspected to have said the alleged words.

Just before question period last Thursday, the Chair made a ruling dealing with decorum and unparliamentary language. The Chair will repeat one of the quotations used in that ruling.

As indicated on page 624 of House of Commons Procedure and Practice, third edition, and I quote: “In dealing with unparliamentary language, the Speaker takes into account the tone, manner and intention of the Member speaking, the person to whom the words at issue were directed, the degree of provocation, and most important, whether or not the remarks created disorder in the Chamber.”

The member for Sherwood Park—Fort Saskatchewan rose and admitted to having made the statement in question, but explained the context in which it was made and his intentions in making it. He maintained that his comment was meant to criticize government spending and that no slur was intended.

Of course, comments that are clearly meant to denigrate someone due to their sexual orientation, or make insinuations about someone's sexual orientation, would not be acceptable in the House. While the member for Sherwood Park—Fort Saskatchewan has vigorously denied that this was his intent, and the Chair is prepared to take him at his word, I would invite him to reflect upon how how his comments could have been interpreted and to recognize that they provoked disorder.

The situation underscores certain principles that should govern our actions in the chamber: first, the importance of not shouting out comments across the floor, and second, to avoid jokes that others could interpret as hurtful or offensive. We all have a responsibility to choose our words carefully. It is in this context that I will invite the member for Sherwood Park—Fort Saskatchewan to withdraw his remarks and to do so at the earliest possible opportunity.

I thank all members for their attention.

[Privilege, September 26th, 2024]

Colleagues, I am now ready to rule on the question of privilege raised on September 16 by the House leader of the official opposition, concerning the alleged failure to produce documents pertaining to Sustainable Development Technology Canada.

In his intervention, the opposition House leader argued that several government departments and agencies failed to adhere to a House order for the production of documents related to Sustainable Development Technology Canada, which was adopted on June 10. His assertions were based on a series of letters provided to the Speaker by the Law Clerk and Parliamentary Counsel and tabled in the House pursuant to that order.

The law clerk had been directed to report to the Speaker on whether the respondents had, in fact, fully complied with the House order, by the stipulated deadline of 30 days following the adoption of the order. The letters were tabled on July 17, August 21 and September 16. In some instances, only partial disclosures were made, owing either to redactions or the withholding of documents. In other instances, the House order was met with a complete refusal.

The opposition House leader argued that the House's powers to order the production of documents are absolute and, as a result, the government was in contempt of the House for its disregard of a binding House order. He therefore asked the Chair to find a prima facie question of privilege, enabling the House to consider a motion to reiterate the order with a new deadline and urging the Prime Minister to make it clear to departments that the House order ought to be complied with.

In response, the Leader of the Government in the House of Commons expressed concerns that the House order may trespass on certain charter rights, in particular relating to police investigations and privacy. She also argued that it was procedurally inadmissible on the grounds that the order exceeded the authority of the House by attempting to secure documents for the exclusive use of a third party, namely the RCMP, rather than for its own use.

She further suggested that the order constituted an attempt by the House to appropriate the role of another branch of Canada's system of government, namely, the judiciary, by authorizing the RCMP to obtain information outside the established and judicially based law enforcement processes. Indeed, she noted that the RCMP itself had raised concerns about accepting the documents, as it feared doing so may circumvent normal investigative processes and Charter protections.

The government House leader also indicated that the order was silent on whether the documents requested should be redacted. She suggested that, absent any other indication from the House, the government should follow its statutory responsibilities by redacting documents to protect sensitive information.

While the government House leader argued that the House may have exceeded its authority in adopting the order, if the Chair determines that the matter is a prima facie question of privilege, she contended that the appropriate course of action would be for the House to refer the matter to the Standing Committee on Procedure and House Affairs to shed light on the contentious points.

The House leader of the official opposition returned a second time to rebut arguments advanced by the government House leader, namely those on the admissibility of the motion, the nature of the motion and the scope of the House's power to order the production of documents.

The member for Windsor West intervened to argue that the order for the production of documents should be respected. He added that it is up to the House to decide whether it is satisfied by the nature of the response. The member for La Prairie contended that the government may well have had reasons to not meet its obligations, but that the privileges of the House are well established and the order was clear. He endorsed a prima facie finding. While both members noted the order was unusual, both maintained this fact does not excuse non-compliance.

The House has been seized before with questions of privilege regarding orders for the production of documents. Neither the Standing Orders nor any statute delimits Parliament's authority to order the production of papers and records that it may need to carry out its duties. House of Commons Procedure and Practice, third edition, confirms this procedural and constitutional understanding, stating 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....

The House leader of the official opposition pointed to the partial production of documents provided to the law clerk. As we have been informed, there were many redactions and omissions, which were made by the various departments and agencies that produced the documents. The House order, indeed, did not explicitly require that the documents be provided in unredacted form, nor did it make provision for departments and agencies to pre-emptively omit or redact portions of documents or documents in their entirety. On this matter, only the House can judge if it is satisfied with the production of documents that it has received.

More generally, the understanding that it is for the House to determine how to exercise its power to order the production of documents is also set out in Joseph Maingot’s Parliamentary Privilege in Canada, second edition, at page 190, where he states: “The only limitations, which could only be self-imposed, would be that any inquiry should relate to a subject within the legislative competence of Parliament, particularly where witnesses and documents are required and the penal jurisdiction of Parliament is contemplated.”

The procedural precedents and authorities are abundantly clear. The House has the undoubted right to order the production of any and all documents from any entity or individual it deems necessary to carry out its duties. Moreover, these powers are a settled matter, at least as far as the House is concerned. They have been confirmed and reconfirmed by my immediate predecessors, as well as those more distantly removed.

To lend support to the absolute nature of the power to order the production of documents, the House leader of the official opposition relied on the ruling on a question of privilege of April 27, 2010, from Speaker Milliken, centring on the House's right to order documents. He stated in the Debates, at page 2043, the following: “procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of government documents”.

The government House leader attempted to argue that this particular order for documents was different, insofar as the documents were not to assist members in carrying out their duties but instead to be transmitted to a third party. For this reason, she claimed that the order was beyond the authority of the House. The Chair would suggest, respectfully, that these concerns ought to have been raised prior to the motion’s adoption.

I would remind members that, if there are concerns about the procedural admissibility of any motion, they should be raised with the Chair before the motion is debated or, at the latest, before the House is called upon to vote on the matter. It would be difficult, perhaps even inappropriate, now for the Chair to retroactively comment on its admissibility.

As it stands, the motion was adopted. The House has clearly ordered the production of certain documents, and that order has clearly not been fully complied with. The Chair cannot come to any other conclusion but to find that a prima facie question of privilege has been established. However, before inviting the House leader of the official opposition to proceed with the moving of a motion, I would like to make a few comments on the type of motion the Chair would consider to be appropriate in the circumstances.

The members who intervened on this question used words such as “unusual”, “novel” and “unprecedented” to describe this particular production order. The Chair agrees with those characterizations. It is indeed unusual, novel and unprecedented for the House to order documents not for its own purposes but for a third party. The Chair also notes that the intended recipient of the information, the RCMP, has expressed to our law clerk its serious reservations about receiving these documents, at least in their current form. Both the opposition House leader and the member for La Prairie argued that this is not the House’s concern and that the RCMP can simply refuse the information if it wishes. Before insisting on the production of documents, as the opposition House leader proposes to do, the Chair believes the House would benefit from having this matter studied further.

In his landmark ruling on documents relating to Afghan detainees on April 27, 2010, Speaker Milliken spoke eloquently of the need for reflection, collaboration and even accommodation in such matters. While asserting unequivocally that the House had the right to order the production of papers, he also recognized that the House generally understands that the government has responsibilities to protect certain information.

In that case, it was a matter of balancing national security concerns with the duty of elected representatives to hold the government accountable for its decisions. In the case before us, the government, the RCMP and even the Auditor General, an officer of Parliament, have expressed concerns about providing the documents in question to the RCMP. While it is ultimately for the House to decide how it wishes to proceed in the face of such objections, the Chair is of the view that it would be valuable to afford an opportunity for the concerns expressed by the RCMP, as well as by the Auditor General, to be addressed fully and, I would hope, for a mutually satisfactory solution to be arrived at.

I believe the best way for this to be achieved would be to follow the usual course for a prima facie question of privilege, that is, a referral to the Standing Committee on Procedure and House Affairs. Such a referral would allow for a more detailed consideration of what documents remain to be submitted, what has been withheld and why, and, most importantly, how the House can ensure the intended recipient, the RCMP, is in a position to act as the House would wish it to act.

The Chair acknowledges that, in recent years, other privilege motions have been brought forward, rather than the usual referral to a committee, although previous Speakers have on occasion insisted on a particular course of action.

My predecessor’s ruling of June 26, 2021, found at page 8550 of the Debates, stated that:

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.

I would also refer the House to the same ruling made by Speaker Milliken on March 9, 2011, in which he found that the proper course of action in those circumstances was to refer the matter to committee. At page 8842 of the Debates, he stated:

I hasten to add that the powers of the Speaker in these matters are robust and well known. In 1966, Mr. Speaker Lamoureux, having come to a finding of prima facie privilege on a matter ruled a number of motions out of order. As House of Commons Procedure and Practice, second edition, tells us at page 147, footnote 371, in doing so, Mr. Speaker Lamoureux “more than once pointed out that it was Canadian practice to refer such matters to committee for study and suggested that this should be the avenue pursued”.

The table officers and I are available to help the House leader of the official opposition craft an acceptable motion. The House will consider the matter as soon as the member is ready to move his motion in the appropriate form.

I thank all members for their attention.