House of Commons photo

Elsewhere

Crucial Fact

  • His favourite word was report.

Last in Parliament March 2011, as Liberal MP for Kingston and the Islands (Ontario)

Won his last election, in 2008, with 39% of the vote.

Statements in the House

Privilege June 17th, 2010

The Chair is now prepared to make a statement regarding the question of privilege pertaining to documents on the treatment of Afghan detainees in response to interventions by the hon. member for St. John's East, the hon. government House leader, the hon. member for Wascana, the hon. member for Joliette, and the hon. member for Vancouver East.

As hon. members will recall, on April 27, 2010, the Chair provided the House with a detailed ruling on the questions of privilege raised concerning the Order of the House of December 10, 2009, pertaining to documents on the treatment of Afghan detainees. Having carefully considered all sides of this complex issue, I made the determination that there was, in fact, a prima facie question of privilege related to the failure of the government to produce the documents as required by the House Order.

However, rather than immediately proceeding to the next step for dealing with a question of privilege, as is normally the case, that is allowing a member to move a motion related to the matter, I opted to defer such action in favour of giving all parties two weeks to work together to reach a compromise.

On Tuesday, May 11, following a request from all parties, an extension to Friday, May 14 was granted.

On May 14, the Minister of Justice announced that an agreement in principle had been reached between the parties and proceeded to table the agreement. In doing so he stated:

All parties agree that the details of this proposal will be further outlined in a memorandum of understanding signed by all party leaders.

Mr. Speaker, I am prepared to table that, in both official languages, and indicate to you that it is the agreement between the members that the memorandum of understanding would be in place by May 31, 2010.

This can be found in Debates, p. 2848.

On May 31, the Minister of Justice again rose in the House, this time to indicate that more time was required to finalize the memorandum of understanding. No date was given for the completion of discussions or for the tabling of a signed final document.

On June 15, the government House leader made a statement indicating that the government, together with the official opposition and the Bloc Québécois, had arrived at an agreement. Yesterday, that agreement, duly signed by the Prime Minister, the Leader of the Opposition and the leader of the Bloc Québécois, was tabled in the House by the government House leader.

When, on April 27, 2010, the Chair enjoined the parties to find a solution to the impasse in which the House found itself at that time, I stated: “...the Chair believes that the House ought to make one further effort to arrive at an interest-based solution....”

Later, in the same ruling, I expressed my hope for a compromise which prompted me to grant members additional time in which to find a resolution to the imbroglio.

The memorandum of understanding tabled by the government House leader makes it apparent to the Chair that a resolution has indeed been found. A consensus has been reached between the government and two of the opposition parties. The Chair notes, in particular and most significantly, that the party whose motion gave rise to the House order of December 10, 2009, is a signatory to the agreement.

In considering this matter, the Chair has taken great care to assess whether the existence of this consensus satisfies the broad conditions that were imposed on the parties in the ruling of April 27.

I must stress that it is not for the Chair to examine the details of the agreement or to compare it to the agreement in principle tabled on May 14. I am responding to the interventions that have been made on behalf of an overwhelming majority of members who have stated that they are satisfied with the consensus agreement that has been tabled.

The Chair can only conclude, therefore, that the requirements of the ruling of April 27, 2010, have indeed been met and, accordingly, I will not call on the hon. member for St. John's East to move a motion at this time.

Instead, the Chair will allow time for the processes and mechanisms described in the agreement to be implemented. Should circumstances change, members will no doubt ensure that the Chair will again be seized of the matter, but for now I will consider the matter closed.

I wish to thank the parties for taking the time required to arrive at this understanding, which is in keeping with the best traditions of this place, and I thank the House for its attention.

I have another ruling.

Privilege June 14th, 2010

I am now prepared to rule on the questions of privilege raised on May 10 and 14, 2010, by the hon. member for Mississauga South concerning statements made pursuant to Standing Order 31 by the members for Peace River and Selkirk—Interlake and the preamble to an oral question by the member for Peace River.

Each of these related specifically to the role played by the member for Mississauga South as chair of the Standing Committee on Access to Information, Privacy and Ethics.

I would like to thank the hon. member for Mississauga South for having raised these matters, and the Minister of State for Science and Technology and Federal Economic Development Agency for Southern Ontario, as well as the members for Peace River, Pickering—Scarborough East, Selkirk—Interlake, Cariboo—Prince George, Scarborough—Rouge River, Charlottetown, and Burnaby—Douglas for their interventions.

The member for Mississauga South alleges that the member for Peace River and the member for Selkirk—Interlake knowingly made inaccurate statements in the House that were personal attacks on him in his capacity as committee chair. He also argued that they were an indictment of him and contrary to the spirit and intent of the February 26, 2009 letter sent by me as Speaker to the House leaders concerning statements pursuant to Standing Order 31.

To support his arguments, he cited both Standing Order 18, which requires members to refrain from using offensive words against other members, and House of Commons Procedure and Practice, Second Edition, at page 618, which reads:

Personal attacks, insults and obscene language or words are not in order. A direct charge or accusation against a member may be made only by way of a substantive motion for which notice is required.

The member also referred to rulings by Speakers Michener, Fraser and Parent which emphasized the importance of freedom of speech, but cautioned about the dangers of its improper use. Claiming that the comments complained of amounted to a form of intimidation and impugned his integrity, honesty, character and ethics, the member asked that the Chair find that these interventions in the House constitute a prima facie breach of privilege.

For his part, the member for Peace River explained that he had used the statement to expose what he believed to be an abuse of authority by the member for Mississauga South in his capacity as chair of the Standing Committee on Access to Information, Privacy and Ethics. He stated that his statement was not meant as a personal attack but was simply a difference of opinion, freely expressed, that was really a matter of debate.

The hon. member for Selkirk—Interlake echoed these arguments, contending that he did not believe he had impugned the reputation of the hon. member for Mississauga South.

When this issue was first raised on May 10, 2010, the Deputy Speaker rightly noted that, if there are issues about the proceedings in the committee, it is incumbent upon the committee itself to deal with them and, should it deem it necessary, to report to the House on the matter.

It is clear to the Chair in this instance that many of the grievances aired in the House by the members for Peace River and Selkirk – Interlake, including those that gave rise to this question of privilege, relate directly to events that are said to have occurred in committee.

That venue provides ample opportunity for the members for Peace River and Selkirk—Interlake to raise their concerns about the conduct of the committee proceedings, and provides the member for Mississauga South, as chair, with a venue to respond. Ultimately, these are committee issues which the committee itself should address.

At the same time, the Chair is being asked to rule on a sort of hybrid matter, that is, whether or not statements made in the House with regard to events in committee, because of the way they were cast when made, constitute a prima facie case of privilege.

Members’ statements, pursuant to Standing Order 31, as well as oral questions, are important means by which members bring matters to the attention of the House, and I need not remind members that the public takes great interest in both proceedings.

As the hon. member for Mississauga South indicated, many of my predecessors as Speaker have noted that the privilege of freedom of speech that members enjoy confers responsibilities on those who are protected by it, and members must use great care in exercising their right to speak freely in the House.

As was correctly pointed out, the use of members' statements and preambles to questions to attack other members does not provide those targeted with an opportunity to respond or deal directly with such attacks.

The Chair has been at pains to remind the House that statements made pursuant to Standing Order 31 and preambles to oral questions are not the appropriate mechanisms to use if members wish to bring such matters to the attention of the House. As has already been mentioned, page 618 of House of Commons Procedure and Practice, second edition, states:

A direct charge or accusation against a member may be made only by way of a substantive motion for which notice is required.

As the Chair indicated earlier, if the matter emanates from committee, this would be done by way of a report; however, as to whether a case of prima facie privilege exists, which is the matter on which the Chair has been asked to rule, it is important to remind the House that in such cases the Chair must be satisfied that the actions complained of are of such a character as to have impeded the member in carrying out his duties.

Page 109 of O’Brien and Bosc is helpful in this regard:

In order to find a prima facie breach of privilege, the Speaker must be satisfied that there is evidence to support the member’s claim that he or she has been impeded in the performance of his or her parliamentary functions...

While the appropriateness of the statements made has been called into question and while there is little doubt that the member has raised legitimate grievances that are akin to a point of order, the Chair is not satisfied that the evidence presented is sufficient to suggest that the member for Mississauga South has been impeded in carrying out his duties.

Accordingly, the Chair cannot find a basis for finding a prima facie case of privilege in these instances. The Chair nonetheless remains concerned by the continuing and unsettling trend towards using members' statements as a vehicle to criticize other members.

As has been pointed out, House of Commons Procedure and Practice, 2nd edition at page 618 states:

The proceedings of the House are based on a long-standing tradition of respect for the integrity of all Members. Thus, the use of offensive, provocative or threatening language in the House is strictly forbidden. Personal attacks, insults and obscenities are not in order.

When speaking in the House, members must remain ever cognizant of these fundamental rules. They exist to safeguard the reputation and dignity not only of the House itself but also that of all its members.

I thank hon. members for their attention on this matter.

Privilege June 10th, 2010

I am now prepared to rule on the question of privilege raised on June 3, 2010 by the hon. member for Burnaby—New Westminster concerning events which took place in the Standing Committee on International Trade on June 1, 2010.

I would like to thank the hon. member for Burnaby—New Westminster for having raised this matter. I would also like to thank the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons and the member for Calgary Centre for their comments.

The member for Burnaby—New Westminster argued that the manner in which the Standing Committee on International Trade conducted its clause-by-clause consideration of Bill C-2, the Canada-Colombia free trade agreement implementation act, violated his rights and the rights of two other members of the committee.

Specifically, he complained that the chair had not informed the committee that it was reverting to a public meeting from its in camera status and that the chair and the majority of the members on the committee had systematically frustrated his attempts to speak, intervene on points of order, and have access to the procedural resources of the committee.

While recognizing that traditionally the Speaker does not get involved in matters that should be dealt with in committee, the member argued that this clearly constituted an abuse by the majority in the committee of the privileges bestowed on it by the House, and as such was a contempt of the House. For his part, the Parliamentary Secretary to the Government House Leader contended that a prima facie question of privilege did not exist as there was no report to the House from the committee on this matter. The member for Calgary Centre, the chair of the standing committee, reiterated this and stated that the committee had conducted its meeting fairly and in keeping with the rules of procedure.

All members who have intervened in this matter have acknowledged that the Speaker does not sit as a court of appeal to adjudicate procedural issues that arise in the course of committee proceedings. Indeed, on numerous occasions, Speakers have restated the cardinal rule that committees are masters of their own proceedings and any alleged irregularities occurring in committees can be taken up in the House only following a report from the committee itself. There have been very few exceptions to this rule.

The ruling of Mr. Speaker Fraser on March 26, 1990, to which the member for Burnaby—New Westminster alluded, does state:

—that in very serious and special circumstances the Speaker may have to pronounce on a committee matter without the committee having reported to the House.

However, having reviewed the evidence submitted, there is little to suggest that in the case before us the circumstances warrant the chair breaking with the entrenched practice of allowing committees to settle issues related to their proceedings, particularly since the member himself stated that “the chair had the support of the majority of the members of the committee”.

Thus, as Mr. Speaker Fraser declared in that same ruling, on page 9,758 of the debates:

I have chosen not to substitute my judgment for that expressed by a majority on the Finance Committee, unless that majority decides to report its dilemma to the House.

While it is clear to the chair that the member is unhappy with the decisions taken by the committee, the committee has not reported this matter to the House. It may be of assistance to the member to refer to pages 149 to 152 in the chapter “Privileges and Immunities” in House of Commons Procedure and Practice, Second Edition, where the procedural steps associated with bringing committee-related privilege issues before the House are fully described.

In the meantime, I regret to inform the member for Burnaby—New Westminster that unless he can persuade the committee to take some of those procedural steps, there is little the chair can do and there is certainly no basis for finding a prima facie question of privilege at this time.

I thank hon. members for their attention.

Points of Order May 31st, 2010

Order, please. I am now prepared to rule on the point of order raised on May 5, by the hon. member for Beauport—Limoilou regarding the use of the term “token Quebecker” or “Québécois de service” in reference to some members.

I want to thank the hon. member for Beauport—Limoilou for raising this issue, as well as the member for Crowfoot, the member for Montmorency—Charlevoix—Haute-Côte-Nord, the member for Marc-Aurèle-Fortin, the member for Saint-Laurent—Cartierville, the member for Joliette and the Parliamentary Secretary for Official Languages for their interventions.

Following question period on May 5, the member for Beauport—Limoilou rose to object to being referred to as a “token Quebecker” or “Québécois de service” by the member for Marc-Aurèle-Fortin. In doing so, she spoke of the need for all members to act respectfully toward one another, regardless of their opposing beliefs and ideas.

These very sentiments were echoed by the member for Saint-Laurent—Cartierville, who characterized such a remark as insulting. The Parliamentary Secretary for Official Languages and the member for Crowfoot added that there were in fact no token members.

Together with the member for Marc-Aurèle-Fortin, the member for Montmorency—Charlevoix—Haute-Côte-Nord dismissed the claim, saying that only the French term “Québécois de service” had been used, rather than “token Quebecker” as was suggested and that previously the member for Roberval—Lac-Saint-Jean had used the term intentionally when referring to himself.

Acknowledging that some members may indeed consider such language offensive, the member for Joliette contended that there are many occasions where members of his party are slighted during proceedings, without feeling the need to bring the insulting language in question to the Speaker’s attention every time.

The use of this same terminology has been brought to the attention of the Chair in the past. On March 31, 2009, at page 2221 of the Debates, the member for Bourassa raised a similar point of order and since then, the Chair has found that it has been used more than a dozen times, including a number of times in just the past few days.

While the term “token Quebecker” or “Québécois de service” may be acceptable to some, it appears to the Chair that it is being used in a provocative manner time and time again in the House. Members raising objections to language used in the House have, in the past, cited House of Commons Procedure and Practice, Second Edition, at page 618, which states:

The proceedings of the House are based on a long-standing tradition of respect for the integrity of all Members. Thus, the use of offensive, provocative or threatening language in the House is strictly forbidden. Personal attacks, insults and obscenities are not in order.

House of Commons Procedure and Practice, second edition, at page 619 also states:

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 importantly, whether or not the remarks created disorder in the Chamber. Thus, language deemed unparliamentary one day may not necessarily be deemed unparliamentary the following day...Although an expression may be found to be acceptable, the Speaker has cautioned that any language which leads to disorder in the House should not be used.

In the current circumstances, the use of the term in question has clearly led to some disorder and considerable offence, and I would therefore urge hon. members to refrain from using it and any others that tend to lead to disorder.

As I suggested when this matter was first raised, members may bring questions about the use of this term, and perhaps even more broadly, questions related to unparliamentary language, to the attention of the Standing Committee on Procedure and House Affairs.

I would also like to take the opportunity to remind the House in the strongest terms possible that all members are legitimate and duly elected members of the House who have rightfully taken their seats. As rightfully noted by the member for Crowfoot, none of them are token in any sense of the word and to suggest otherwise would diminish the importance of our parliamentary system, our electoral system and the decisions of the very electors who sent them, indeed all of us, here.

I thank hon. members for their attention and for their co-operation.

Points of Order May 26th, 2010

I am now prepared to rule on the point of order raised on May 11, 2010, by the hon. Parliamentary Secretary to the Government House Leader concerning the need for a royal recommendation for Bill C-501, An Act to amend the Bankruptcy and Insolvency Act and other Acts (pension protection), standing in the name of the hon. member for Thunder Bay-Rainy River.

I would like to thank the parliamentary secretary for having raised this matter, as well as the hon. member for Thunder Bay—Rainy River for his comments.

In his point of order, the parliamentary secretary pointed out that Bill C-501 makes provision for the appointment of adjudicators by the Minister of Labour in connection with claims against directors for the recovery of debts filed under the Canada Business Corporations Act. These provisions are found in clause 6 of the bill.

He drew the attention of the House to section 23 of the Interpretation Act, which indicates that the power to appoint public officials includes the power to pay them. In his view, the appointment of adjudicators under the Canada Business Corporations Act would constitute the naming of officials for a new and distinct function not currently authorized by any existing appropriation.

The Chair has examined Bill C-501 carefully and has taken note of the authorities cited by the parliamentary secretary. The Chair has also looked closely at the existing provisions of the Canada Business Corporations Act.

During his intervention, the member for Thunder Bay—Rainy River maintained that the Minister of Labour has the power to name adjudicators under other legislation. However, what is specifically at issue here is the minister's ability to appoint such officials under the Canadian Business Corporations Act.

As this act in its current form does not provide for the appointment of adjudicators, it is clear to the Chair that the proposal in clause 6 of Bill C-501 proposes a new and distinct function for the Minister of Labour, which would require an expenditure of public funds.

In accordance with Standing Order 79(1), the Chair must therefore rule that the bill requires a royal recommendation, and will decline to put the question on third reading of the bill in its present form unless a royal recommendation is received.

The recorded division later today, however, is on the motion for second reading, which can proceed as scheduled.

The Chair would like to take this opportunity to remind all hon. members of the importance which the Speaker attaches to questions of this nature. The orderly conduct of our proceedings, particularly where it touches on matters relating to the appropriation of public funds or the imposing of charges on the people, is of great importance in permitting the House to deliberate in a calm and well-considered manner. Procedural issues which may arise from time to time are often complex and it assists both the Chair and the House as a whole when they are raised as early as possible in the proceedings.

I thank hon. members for their attention.

Points of Order May 11th, 2010

I am now prepared to rule on the point of order raised by the Parliamentary Secretary to the Leader of the Government in the House of Commons on April 29, 2010 concerning amendments contained in the report from the Standing Committee on Aboriginal Affairs and Northern Development on Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs).

I would like to thank the parliamentary secretary for having raised this important matter as well as the hon. members for Labrador, Abitibi—Témiscamingue and Yukon for their comments.

In presenting his point of order, the parliamentary secretary argued that two of the amendments to Bill C-3 contained in the first report from the Standing Committee on Aboriginal Affairs and Northern Development, tabled on April 29, 2010, were beyond the scope of the bill as approved by the House at second reading.

The first motion presented by the member for Labrador during clause-by-clause consideration of the bill reads as follows:

That Bill C-3, in Clause 2, be amended by adding after line 16 on page 1 the following:

(a.1) that person was born prior to April 17, 1985 and is a direct descendant of the person referred to in paragraph (a) or of a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f) as they read immediately prior to April 17, 1985;

As reported by the parliamentary secretary, this motion was ruled out of order by the chair on the basis that it went beyond the scope of the bill as approved by the House at the second reading stage. The ruling was appealed and overturned by a majority vote and the amendment was subsequently adopted by a similar vote.

In respect of the second amendment under dispute concerning the short title of the bill, the parliamentary secretary argued that it had only been allowed to proceed because of the adoption of the first amendment. He noted that in the absence of any amendment requiring it, no motion to amend a bill's title was admissible under our rules.

The member for Labrador argued that the court ruling in which the bill responded identified discriminatory provisions related to registration in the Indian Act beyond those specific to the McIvor case. He stated that in its ruling the court of appeal pointed out that there may be other parts of the act that caused gender discrimination. He also drew to the attention of the House that there existed considerable latitude for the government to respond to the court's decision. In doing so, he cited a number of examples where legislation had gone well beyond the modifications to the law required by court decisions. He concluded that the amendment in question was entirely consistent with bills responding to court rulings.

The Chair has carefully examined Bill C-3, the Committee’s report as well as the proceedings in the Committee dealing with clause-by-clause consideration of the bill.

As has been frequently noted, the Speaker’s involvement in committee matters is limited except in cases where a committee has exceeded its authority. The adoption of amendments that are beyond the scope of a bill is such a case.

I would like to remind the House that the Speaker's role in these matters is limited strictly to determining the procedural issue that has been raised. While some members may be of the opinion that a different bill, perhaps broader in scope, ought to have been introduced, I must base my decision on the bill that actually was introduced and approved by the House at second reading.

House of Commons Procedure and Practice, p. 766, states:

An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.

In the present case, in order to determine the scope of the bill, we need to put this legislative measure in its unique context. Bill C-3 was drafted in response to a ruling of the court of appeal for British Columbia, which struck down certain provisions of the Indian Act based on unequal treatment with respect to registration accorded to the descendants of some Indian women arising out of earlier amendments to the Indian Act made in 1985. The bill seeks to redress the specific inequality identified by the court. As such, it is of extremely narrow scope. It removes gender discrimination arising from transitional effects of the 1985 amendments as they relate to a particular family structure.

The amendment, adding a new sub-paragraph a.1 to the conditions of registration in section 6 of the Indian Act, deals with all persons born prior to April 17, 1985 who are descended from those registered under the Indian Act, or entitled to be so registered, prior to that date. Individuals, whose status is not affected in any way by Bill C-3 as adopted at second reading, would have a different status as a result of this amendment. It may be that the amendment seeks to redress an inequality arising out of the Indian Act, but it is not addressing the specific inequality identified by the Court and initially targeted by Bill C-3. Consequently, the amendment exceeds the scope of the bill as set by the House at second reading and is therefore inadmissible.

The second amendment, changing the short title of the bill, is dependent on the broadening of scope resulting from the first inadmissible amendment. As such, in the absence of any other amendment requiring a change to the original short title, it too is inadmissible.

I therefore rule that the amendment to clause 2 of Bill C-3 and the amendment to the short title are null and void and no longer form part of the bill as reported to the House. In addition, I am ordering a reprint of Bill C-3 be published to replace the reprint ordered by the committee.

I thank hon. members for their attention.

Points of Order April 29th, 2010

I am now prepared to rule on the point of order raised on April 1, 2010, by the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons regarding the admissibility of an amendment adopted by the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities in its consideration of Bill C-304, An Act to ensure secure, adequate, accessible and affordable housing for Canadians. The bill containing the amendment in question was reported to the House on March 24.

I wish to thank the Parliamentary Secretary for having raised this issue as well as the hon. members for Joliette and Vancouver East for presenting their views on the matter.

The parliamentary secretary explained to the House that during the consideration of Bill C-304, the members of the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities overturned a decision of the chair concerning an amendment to Bill C-304 that had been ruled inadmissible. The committee then proceeded to adopt the amendment.

He pointed out that the purpose of Bill C-304 is to create a national housing strategy and, more specifically, that clause 3 of the bill provides for the minister to consult with the provincial and territorial ministers in order to establish that strategy. The parliamentary secretary stated that the amendment, which allows the province of Quebec to opt out with full compensation, is inconsistent with the purpose of the bill. He also argued that since there was no mention of a potential provincial exemption in the bill as adopted by the House at second reading, the amendment alters the purpose and goes beyond the scope and principle of the bill.

The parliamentary secretary made reference to a committee chairman's ruling on the admissibility of a similar amendment during clause-by-clause consideration of Bill S-3, an act to amend the Official Languages Act (promotion of English and French), by the Standing Committee on Official Languages on October 20, 2005. An amendment to exclude one province from the application of that bill was moved and ruled inadmissible by the committee chair since it was contrary to the principle of the bill.

In his intervention, the member for Joliette stated that, in his view, the amendment in question is admissible since the right of Quebec to be exempted is consistent with the principle of the bill. He also provided many examples of Canada-wide programs or strategies from which the province of Quebec is exempted.

In her intervention, the member for Vancouver East made reference to a Speaker's ruling of January 29, 2008 defining the principle and the scope of the bill. She explained that the principle of Bill C-304 is to develop a housing strategy and that the scope, which encompasses the mechanisms by which the principle is attained, includes the consultations leading to the establishment of the strategy. Furthermore, she claimed that the amendment in question is permissive, not mandatory, and that it merely seeks to clarify the scope of the bill.

As the House knows, the Speaker does not ordinarily intervene on committee matters unless a report has been presented in the House. With respect to legislation, the Speaker has been called upon to deal with such matters after the bill in question has been reported to the House.

The Chair believes that it would be useful to have a look at the amendment in question. It is a new clause added after clause 3 and reads as follows:

The Government of Quebec may choose to be exempted from the application of this Act and may, if it chooses to do so, receive an unconditional payment equal to the total of the amounts that would otherwise be paid within its territory under this Act.

In the Chair's view, there are two elements to this new clause. The first is the Government of Quebec's right to opt out of the strategy, and the second relates to the right to receive financial compensation if it chooses to do so.

With regard to the first element of the amendment, the members for Joliette and Vancouver East both have given examples of Canada-wide programs and policies of which the province of Quebec is exempted. The Chair is in no way questioning that such arrangements exist in current programs or could exist in future programs within specific legislative frameworks. However, the Chair has to determine if such an arrangement as defined by the amendment in question goes against the principle or broadens the scope of this bill as adopted by the House at second reading.

The Chair refers members to clause 3 of the bill which provides elements that should be part of a housing strategy, elements that are, in fact, defining the scope of the bill. The Chair views the nature of those elements as being very different from that proposed by the amendment in question and finds that an opting out provision is a new concept which exceeds the scope as defined in clause 3.

As for the second element, that of payments to provinces, the Chair has studied the bill very closely and finds no reference to payments that could be made to a province under this Act. Payments to provincial governments are not provided for in Bill C-304, and, therefore, it is clear that this element of the amendment goes beyond the scope of the bill.

The Chair also considered a number of precedents. In addition to the example of Bill S-3 cited by the parliamentary secretary, the Chair has found an example of similar amendments submitted at report stage. In fact, when Bill C-20, an Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, was considered at report stage, amendments seeking the exemption of the province of Quebec were submitted and were found to be inadmissible.

The Speaker then explained in his ruling of March 13, 2000 at Debates page 4375 that:

“...from a strictly procedural perspective…I remain convinced that those amendments the hon. member referred to do in fact go beyond the scope and alter the principle of the bill as already agreed to by the House.”

While the Chair appreciates the efforts to improve proposed legislation made by committees in the course of clause-by-clause consideration, the fact remains that a committee must carry out its mandate without exceeding its powers. In my view, by adopting an amendment that goes against the principle of the bill and that introduces a notion broadening its scope, a committee ventures beyond the role that the House has assigned to it.

Consequently, I must order that the amendment creating clause 3.1 adopted by the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities be declared null and void and no longer form part of the bill as reported to the House.

In addition, I am ordering that a reprint of Bill C-304 be published with all possible haste for use by the House at report stage to replace the reprint ordered by the committee.

I thank the House for its attention.

Privilege April 27th, 2010

I am now prepared to rule on the question of privilege raised on March 18, 2010, by the hon. member for Scarborough—Rouge River, the hon. member for St. John's East and the hon. member for Saint-Jean concerning the order of the House of December 10, 2009, respecting the production of documents regarding Afghan detainees.

I would like to thank those three members raising these issues. I would also like to thank the hon. Minister of Justice and Attorney General of Canada, the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons, the hon. House Leader of the Official Opposition, and the hon. members for Toronto Centre, Joliette, Windsor—Tecumseh, Yukon, Toronto—Danforth, Outremont and Kootenay—Columbia for their interventions on this important matter on March 18, 25, and 31, and on April 1 and 12, 2010.

The facts that have led the House, and the Chair, to be seized of this case are the following:

On February 10, 2009, the House recreated the Special Committee on the Canadian Mission in Afghanistan. This committee conducted its business in the usual way and began, in the fall of that year, to seek information from the government on the treatment of Afghan detainees.

On November 27, 2009, the committee reported to the House what it considered to be a breach of its privileges in relation to its inquiries and requests for documents.

On December 10, 2009, the House adopted an order for the production of documents regarding Afghan detainees.

On December 30, 2009, the session in which this order was adopted was prorogued.

On March 3, 2010, when the present session began, the Special Committee was re-constituted and resumed its work. Since Orders of the House for the production of documents survive prorogation, the House Order of December 10, 2009, remained in effect.

On March 5, 2010, the Minister of Justice rose in the House to announce that the government had appointed former Supreme Court Justice Frank Iacobucci to undertake “an independent, comprehensive and proper review of the documents at issue”.

The minister described Mr. Iacobucci's mandate in relation to the order of December 10, 2009 specifying that the former justice would report to him.

On March 16, 2010, the Leader of the Government in the House of Commons tabled the specific terms of reference for Mr. Iacobucci.

On March 18, 2010, three members raised questions of privilege related to the order of December 10, 2009. A number of other members also contributed to the discussion.

On March 25, 2010 and again on April 1 and 26, 2010 the government tabled a large volume of documents regarding Afghan detainees “without prejudice” to the procedural arguments relating to the order of December 10, 2009.

On March 25 and April 1 the Chair also heard interventions from members.

On March 31, 2010 the government responded to the arguments made in relation to the questions of privilege raised on March 18, 2010.

Last, on April 1, and again on April 12, 2010, the Chair heard arguments on the questions of privilege from several members, took the matter under advisement and undertook to return to the House with a ruling.

Before addressing the arguments brought forward, I want to take this opportunity to remind members of the role of the Chair when questions of privilege are raised.

House of Commons Procedure and Practice, second edition, O'Brien and Bosc, at page 141 states:

Great importance is attached to matters involving privilege. A Member wishing to raise a question of privilege in the House must first convince the Speaker that his or her concern is prima facie (on the first impression or at first glance) a question of privilege. The function of the Speaker is limited to deciding whether the matter is of such a character as to entitle the Member who has raised the question to move a motion which will have priority over Orders of the Day; that is, in the Speaker's opinion, there is a prima facie question of privilege. If there is, the House must take the matter into immediate consideration. Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.

As Speaker, one of my principal duties is to safeguard the rights and privileges of members and of the House. In doing so, the Chair is always mindful of the established precedents, usages, traditions and practices of the House and of the role of the Chair in their ongoing evolution. It is no exaggeration to say that it is a rare event for the Speaker to be seized of a matter as complex and as heavy with consequence as the matter before us now.

Because of the complexity of the issues that have been raised, and the large number of lengthy interventions made by hon. members, I have taken the liberty of regrouping the issues thematically in order to address the arguments presented more effectively.

The main and most important issue that the Chair must address today concerns the right of the House to order production of documents, including the nature of the right, questions related to the extent of the right and the manner in which the right can or ought to be exercised. All members who have intervened on these matters of privilege have touched on these fundamental questions in one way or another. In addition, the Chair has been asked to determine whether or not the order has been complied with, and if not, whether this constitutes, prima facie, a contempt of the House.

A second matter before the Chair is the contention—made primarily by the member for Scarborough—Rouge River—that witnesses were intimidated by answers given in Question Period by the Minister of National Defence and that a letter written by an official from the Department of Justice was contemptuous of the House in setting out for potential witnesses a false basis for refusing to answer questions in a committee of this House.

Arguments were also made in relation to a third theme, namely the form, clarity and procedural validity of the December 10 order of the House. These issues arose when the Parliamentary Secretary to the Leader of the Government in the House of Commons contended on March 31, 2010, that the order of December 10 was fatally flawed in that it seeks documents that he claims can only be obtained by way of an Address to the Governor General. Related issues were brought to the Chair’s attention on the same day by the Minister of Justice, who stated, at page 1225 of the Debates:

Mr. Speaker, as you will recall, the December order called for uncensored documents. It listed eight different categories of documents to be produced. The order did not specify exactly when such documents should be produced, who should produce them or to whom they should be produced. The order made no reference to the confidential information being protected...

The fourth theme that the Chair wishes to address concerns the issue of accommodation and trust which a number of members on both sides of the House have raised. Several members have made reference to the need to safeguard confidential information that, in the words of the Minister of Justice, as found at page 7881 of the Debates of December 10, 2009, “if disclosed, could compromise Canada's security, national defence and international relations”. More significantly, a number of members have indicated that they wish to find a way to accommodate the desire of the House for information while also accommodating the desire of the government to protect sensitive information.

The first arguments the Chair wishes to address are those related to the form, clarity and procedural validity of the December 10 order.

The Minister of Justice has called into question the clarity of the order. On reading the order, it is abundantly clear to the Chair that it is the government that is expected to produce the documents demanded, and that in the absence of instructions to the contrary, the documents are to be tabled in the House in the usual manner. In this sense the minister and the parliamentary secretary are correct in asserting that no provision is made in the order for confidential treatment of the material demanded. The Chair will return to this aspect of the question later in this ruling.

As to when the material is to be tabled, the order says very clearly “forthwith”. House of Commons Procedure and Practice, Second Edition, at page 475 states:

...if the House has adopted an Order for the production of a document, the Order should be complied with within a reasonable time. However, the Speaker has no power to determine when documents should be tabled.

As to the procedural validity of the order, as well as its form, the Chair wishes to draw the attention of the House to Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, which states at pages 245 and 246:

Previous to the session of 1876, it was customary to move for all papers by address to the Governor General, but since that time the regular practice of the English houses has been followed. It is now the usage to move for addresses only with respect to matters affecting imperial interests, the royal prerogative or the Governor in Council. On the other hand, it is the constitutional right of either House to ask for such information as it can directly obtain by its own order from any department or officer of the government...papers may be directly ordered when they relate to canals and railways, post office, customs, militia, fisheries, dismissal of public officers, harbours and public works and other matters under the immediate control and direction of the different departments of the government.

As this passage makes clear, an order is issued when seeking papers that fall under the “immediate control and direction of the different departments of the government”. As an example, in the case of the documents related to the Chief of the Defence Staff referred to by the parliamentary secretary, it is simply not credible to claim that these documents are not under the control of the government.

The parliamentary secretary has referred to certain rulings of my predecessors in making his arguments and has also provided additional material in support of his contention. The Chair has examined these precedents—a ruling from 1959 by Mr. Speaker Michener and a ruling from 1982 by Madam Speaker Sauvé—but is not convinced that they directly support the particular circumstances faced by the House in this case.

A further point to be made on this issue has to do with the documents tabled “without prejudice” so far by the government in response to the order of December 10. The Chair wishes to point out that of the documents tabled, several appear to fall into the categories which the parliamentary secretary claims require an address before they can be produced. In addition, the fact that these documents have been tabled has been cited by the government as a gesture of good faith on its part and an indication that it is complying, to the extent that it feels it can, with the order of December 10.

Finally, as the member for St. John's East noted, in response to objections raised at the time debate was commencing on the original motion, a decision was rendered that the motion was in order. Consequently, the House went on to debate and decide the matter: the House has expressed its will, and that is where the matter now stands.

I have considered the arguments put forward, and for the reasons stated above, the Chair concludes that it was procedurally acceptable for the House to use an order and not an address to require the production of these documents.

The Chair will now turn to the allegations related to witness intimidation. The member for Scarborough—Rouge River has contended that the comments made by the Minister of National Defence in reply to a question during oral questions on December 1, 2009, amounted to intimidation. He argued that the minister's contention that the documents in question could be released to the Special Committee on the Canadian Mission in Afghanistan only under the provisions of the Canada Evidence Act was wrong and misleading, obstructed the House and intimidated witnesses, especially armed forces personnel and public servants, thereby lessening the likelihood of their compliance with House requests and orders.

The hon. member for Scarborough—Rouge River also took exception to a December 9, 2009, letter to the Law Clerk and Parliamentary Counsel of the House from an Assistant Deputy Minister from the Department of Justice on the obligations of witnesses before committees, and on the obligation to provide documents ordered by committees. He argued that the letter constituted a contempt of the House by setting out for witnesses a false basis for refusing to provide disclosure to the House or its committees after being ordered to do so. In particular, the member for Scarborough—Rouge River stressed that if the contents of the letter were crafted with ministerial approval, it could constitute a conspiracy to undermine Parliament and the ability of the House to carry on its constitutional functions.

The government responded that the remarks made by the Minister of National Defence were simply matters of debate and differences of opinion between members. Of the second complaint, the government took the view that the letter from the justice official constituted nothing more than an exchange of views between legal professionals and it could not be construed as “an attempt to intimidate the government witnesses”.

The hon. member for Scarborough—Rouge River had argued that the minister's reply constituted a slander of Parliament's core powers to hold the government to account and thus was a contempt. However, particularly since this exchange between the minister and the member for Vancouver South occurred during question period, I find that I must agree with the parliamentary secretary's characterization of this exchange as a matter of debate.

I have no need to remind the House that freedom of speech is one of our most cherished rights. Although members may disagree with the comments made by the minister, I cannot find that the minister's words in and of themselves constitute witness intimidation, hence nor do they constitute a prima facie contempt of the House.

As for the member for Scarborough—Rouge River's other concern regarding the letter from the assistant deputy minister, the procedural authorities are clear that interference with witnesses may constitute a contempt. House of Commons Procedure and Practice, Second Edition, at page 1070, states: “Tampering with a witness or in any way attempting to deter a witness from giving evidence may constitute a breach of parliamentary privilege.”

It is reasonable to assume that a letter signed by an assistant deputy minister, acting under the authority of the Minister of Justice, is an expression of the government’s view on an issue, and given that its contents have been widely reported and circulated, the letter could leave the impression that public servants and government officials cannot be protected by Parliament for their responses to questions at a parliamentary committee, when this is not the case.

Specifically, I would like to draw to the attention of hon. members the section of the letter in question, which the member for Scarborough—Rouge River tabled in the House on March 18, 2010, where the assistant deputy minister lays out a view of the duties of public servants in relation to committees of the House. The letter states:

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. To argue to the contrary would be inimical to the principles of the rule of law and parliamentary sovereignty. A parliamentary committee is subordinate, not superior, to the legislative will of Parliament as expressed in its enactments.

It does concern me that the letter of the assistant deputy minister could be interpreted as having a “chilling effect” on public servants who are called to appear before parliamentary committees, as contended the members for Scarborough—Rouge River and Toronto Centre. This could be especially so if the view put forth in the letter formed the basis of a direction given by department heads to their employees who have been called to testify before parliamentary committees.

At the same time, it is critically important to remember in this regard that our practice already recognizes that public servants appearing as witnesses are placed in the peculiar position of having two duties. As House of Commons Procedure and Practice, Second Edition, states at pages 1068 and 1069:

“Particular attention is paid to the questioning of public servants. The obligation of a witness to answer all questions put by the committee must be balanced against the role that public servants play in providing confidential advice to their Ministers. ...In addition, committees ordinarily accept the reasons that a public servant gives for declining to answer a specific question or series of questions which....may be perceived as a conflict with the witness’ responsibility to the Minister....”

The solution for committees facing such situations is to seek answers from those who are ultimately accountable, namely, the ministers themselves.

It has been argued that there may be a chilling effect, which could come dangerously close to impeding members of committees in carrying out their duties; however, I remind the House that this letter was sent to our Law Clerk, so on balance, I would need to see the use made of this letter, in particular whether it was ever presented to a person who was scheduled to testify before the special committee with the intent of limiting the person's testimony.

As things stand, there does not appear to the Chair to be sufficient evidence for me to conclude that this letter constitutes a direct attempt to prevent or influence the testimony of any witness before a committee, and for these reasons, I cannot find that there is a prima facie question of contempt on this point.

I now turn to the questions of the House's right to order the production of documents and the claim that the government has failed to comply with the order of the House.

The hon. member for Kootenay--Columbia argued that even if the documents were provided to the committee, the committee could not, given their sensitive nature, make use of them publicly. However, I cannot agree with his conclusion that this obviates the government's requirement to provide the documents ordered by the House. To accept such a notion would completely undermine the importance of the role of parliamentarians in holding the government to account.

Before us are issues that question the very foundations upon which our parliamentary system is built. In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and in fact an obligation.

Embedded in our Constitution, parliamentary law and even in our Standing Orders, it is the source of our parliamentary system for which other processes and principles necessarily flow, and it is why that right is manifested in numerous procedures of the House, from the daily question period to the detailed examination by committees of estimates, to reviews of the accounts of Canada, to debate, amendments, and votes on legislation.

As I noted on December 10, 2009, House of Commons Procedure and Practice, Second Edition, states at page 136:

By virtue of the Preamble and section 18 of the Constitution Act, 1867, Parliament has the ability to institute its own inquiries, to require the attendance of witnesses and to order the production of documents, rights which are fundamental to its proper functioning. These rights are as old as Parliament itself.

And on pages 978 to 979:

The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the type of papers likely to be requested, the only prerequisite is that the papers exist--in hard copy or electronic format--and that they are located in Canada....

No statute or practice diminishes the fullness of the power rooted in the House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.

Further, at page 70, Bourinot's 4th edition states:

The Senate and House of Commons have the right, inherent in them as legislative bodies, to summon and compel the attendance of all persons, within the limits of their jurisdiction, as witnesses, and to order them to bring with them such papers and records as may be required for the purpose of an inquiry.

In the arguments presented, the Chair has heard this power described as unabridged, unconditional, unqualified, absolute and, furthermore, one which is limited only by the discretion of the House itself. However, this view is not shared by all and so it is a privilege whose limits have now been called into question.

The government's view is that such an unqualified right does not exist for either House of Parliament or their committees. The executive, the holder of the sensitive information sought by the House, has competing obligations. On the one hand, it recognizes that there is an expectation of transparency so that government actions can be properly monitored to ensure that they respect the law and international agreements. On the other hand, the government contends that the protection of national security, national defence and international relations demand that some information remain secret and confidential, out of the reach of those obliged to scrutinize its actions and hold it to account.

In his March 31 intervention, the Minister of Justice quoted from the 1887 parliamentary treatise of Alpheus Todd to support the view that “a due regard to the interests of the State, occasionally demand...that information sought for by members of the legislature should be withheld, at the discretion and upon the general responsibility of ministers”.

The minister also cited Bourinot in 1884, observing that the government may “feel constrained to refuse certain papers on the ground that their production would be...injurious to the public interest”. Had he read a little further, he might have found the following statement by Bourinot at page 281:

But it must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses.

As the members for Saint-Jean and Joliette commented on March 25, 2010, Bourinot’s Second Edition notes that even in instances where a minister refuses to provide documents that are requested, it is clear that it is still ultimately up to the House to determine whether grounds exist to withhold documents.

Bourinot, in referring to procedures for notices of motions for production of papers, wrote at pages 337 and 338:

Consequently, there are frequent cases in which the ministers refuse information, especially at some delicate stage of an investigation or negotiation; and in such instances the house will always acquiesce when sufficient reasons are given for the refusal...But it must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient.

Joseph Maingot’s Parliamentary Privilege in Canada, Second Edition, also supports the need for Parliament to have a voice in these very matters when it states at page 190:

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. This dovetails with the right of each House of Parliament to summon and compel the attendance of all persons within the limits of their jurisdictions.

Similarly, in Erskine May, 23rd edition, in a discussion of the exclusive cognizance of proceedings at page 102, we find the following:

...underlying the Bill of Rights [1689] is the privilege of both Houses to the exclusive cognizance of their own proceedings. Both Houses retain the right to be sole judge of the lawfulness of their own proceedings, and to settle—or depart from—their own codes of procedure. This is equally the case where the House in question is dealing with a matter which is finally decided by its sole authority, such as an order or resolution, or whether (like a bill) it is the joint concern of both Houses.

In David McGee's Parliamentary Practice in New Zealand, second edition, at page 621 he asserts, “The Australian legislation”, referring to the Parliamentary Privileges Act, 1987, “in respect of article 9 of the Bill of Rights...may be taken to indicate the types of transactions falling within the term 'proceedings of Parliament'”

He then goes on to state that such proceedings to which privilege attaches include “...the presentation of a document to a House or a committee...”.

Odgers' Australian Senate Practice, 12th edition, at page 51 states clearly:

Parliamentary privilege is not affected by provisions in statutes which prohibit in general terms the disclosure of categories of information....

Statutory provisions of this type do not prevent the disclosure of information covered by the provisions to a House of the Parliament or to a parliamentary committee in the course of a parliamentary inquiry.... They...do not prevent committees seeking the information covered by such provisions or persons who have that information providing it to committees.

In light of these various authorities, the Chair must conclude that the House does indeed have the right to ask for the documents listed in the order of December 10, 2009.

With regard to the extent of the right, the Chair would like to address the contention of the Minister of Justice, made on March 31, that the order of the House of December 10 is a breach of the constitutional separation of powers between the executive and the legislature.

Having noted that the three branches of government must respect the legitimate sphere of activity of the others, the minister argued that the order of the House was tantamount to an unlawful extension of the House's privileges. This can only be true if one agrees with the notion that the House's power to order the production of documents is not absolute. The question would then be whether this interpretation subjugates the legislature to the executive.

It is the view of the Chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would in fact jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts. Furthermore, it risks diminishing the inherent privileges of the House and its members, which have been earned and must be safeguarded.

As has been noted earlier, 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, even those related to national security.

Therefore, the Chair must conclude that it is perfectly within the existing privileges of the House to order production of the documents in question. Bearing in mind that the fundamental role of Parliament is to hold the government to account, as the servant of the House and the protector of its privileges, I cannot agree with the government's interpretation that ordering these documents transgresses the separation of powers and interferes with the spheres of activity of the executive branch.

But what of the House’s responsibility regarding the manner in which this right can or ought to be exercised? The authorities cited earlier all make reference to the long-standing practice whereby the House has accepted that not all documents demanded ought to be made available in cases where the Government asserts that this is impossible or inappropriate for reasons of national security, national defence or international relations.

O’Brien and Bosc, at page 979, states: “—it may not be appropriate to insist on the production of papers and records in all cases.”

The basis for this statement is a 1991 report by the Standing Committee on Privileges and Elections, which, as recorded on page 95 of the Journals of May 29, 1991, pointed out:

The House of Commons recognizes that it should not require the production of documents in all cases; considerations of public policy, including national security, foreign relations, and so forth, enter into the decision as to when it is appropriate to order the production of such documents.

In his comments on this aspect of the matter before us, the Parliamentary Secretary to the Leader of the Government in the House of Commons referred to my ruling of June 8, 2006, where I stated that national security, when asserted by a minister, was sufficient to set aside a requirement to table documents cited in debate. The examples cited by the parliamentary secretary related strictly to documents that have been cited by a minister in the absence of any other explicit expression of interest by the House in the said documents.

Having reviewed the June 8 ruling, it is clear to the Chair that there is a difference between the practice of the House which allows a minister, on the sole basis of his or her judgment, to refrain from tabling a cited document for reasons of confidentiality and national security, and an order, duly adopted by the House following notice and debate, requiring the tabling of documents.

Another important distinction between the order adopted by the House on December 10, 2009, and the practice respecting notices of motions for the production of papers, referred to by the member for St. John's East on April 12 is that, with respect to such notices, there is an opportunity for a minister or parliamentary secretary to indicate to the House that the notice is acceptable to the government subject to certain reservations, such as confidentiality, or national security.

Thus the House, prior to the adoption of the motion, is fully aware that some documents will not be produced if the motion is adopted. If the House does not agree, the motion must either be transferred for debate or be put immediately to the House without debate or amendment.

Something similar happened on December 10, 2009. Before the House voted on the motion that became an order to produce documents, the ministers of justice, national defence and foreign affairs all rose in the House to explain the reasons why the documents in question should not be made available. This is in keeping with what Bourinot refers to as the government's responsibility to provide “reasons very cogent” for not producing documents.

Under normal circumstances, reflecting on past history in the House, these assertions by the government might well have been found to be acceptable by the House. In the current circumstances, however, the reasons given by the government were not found to be sufficient. The House debated the matter and voted to adopt an order for the production of documents despite the request of the government.

The reason for this, it seems, has to do with the issue of accommodation and trust. On December 10, 2009, as found on page 7877 of the Debates, I stated:

It is unfortunate, if I may make this comment, that arrangements were not made in committee to settle this matter there, where these requests were made and where there might have been some agreement on which documents and which format would be tabled or made available to members. How they were to be produced or however it was to be done, I do not know, but obviously that has not happened.

Several members have made the point that there are numerous ways that the documents in question could have been made available without divulging state secrets and acknowledged that all sides in the House needed to find a way to respect the privileges and rights of members of Parliament to hold the government to account, while at the same time protecting national security.

The government, for its part, has sought to find a solution to the impasse. It has appointed former Supreme Court Justice Frank Iacobucci and given him a mandate to examine the documents and to recommend to the Minister of Justice and Attorney General what could be safely disclosed to the House.

The government has argued that in mandating this review by Mr. Iacobucci, it was taking steps to comply with the order consistent with its requirements to protect the security of Canada’s armed forces and Canada’s international obligations.

However, several members have pointed out that Mr. Iacobucci's appointment establishes a separate, parallel process outside of parliamentary oversight, and without parliamentary involvement. Furthermore, and in my view perhaps most significantly, Mr. Iacobucci reports to the Minister of Justice; his client is the government.

The authorities I have cited are unanimous in the view of the House's privilege to ask for the production of papers and many go on to explain that accommodations are made between those seeking information and those in possession of it to ensure that arrangements are made in the best interests of the public they both serve.

Certainly from the submissions I have heard, it is evident to the Chair that all members take seriously the sensitive nature of these documents and the need to protect the confidential information they contain.

The Chair must conclude that it is within the powers of the House of Commons to ask for the documents sought in the December 10 order it adopted. Now it seems to me that the issue before us is this: Is it possible to put in place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain? In other words, is it possible for the two sides, working together in the best interests of the Canadians they serve, to devise a means where both their concerns are met? Surely that is not too much to hope for.

The member for Toronto Centre has made a suggestion, as recorded on page 615 of the Debates of March 18, 2010:

What we believe can be done is not beyond the ability of the House. It is done in many other parliaments. Indeed, there are circumstances under which it has even been done in this House. It is perfectly possible for unredacted documents to be seen by members of Parliament who have been sworn in for the purpose of looking at these documents.

O'Brien and Bosc, at page 980, points to ways of seeking a compromise for members to gain access to otherwise inaccessible material:

Normally, this entails putting measures in place to ensure that the record is kept confidential while it is being consulted: in camera review, limited and numbered copies, arrangements for disposing of or destroying the copies after the committee meeting, et cetera.

In some jurisdictions, such as the Legislative Council in the Australian state of New South Wales, and I would refer members to New South Wales Legislative Council Practice by Lovelock and Evans at page 481, mechanisms have been put in place, which satisfy the confidentiality concerns of the government as well as those of the legislature. Procedures provide for independent arbiters, recognized by both the executive and the legislature, to make determinations on what can be disclosed when a dispute arises over an order for the production of documents.

Finding common ground will be difficult. There have been assertions that colleagues in the House are not sufficiently trustworthy to be given confidential information, even with appropriate security safeguards in place. I find such comments troubling. The insinuation that members of Parliament cannot be trusted with the very information that they may well require to act on behalf of Canadians runs contrary to the inherent trust that Canadians have placed in their elected officials and which members require to act in their various parliamentary capacities.

The issue of trust goes in the other direction as well. Some suggestions have been made that the government has self-serving and ulterior motives for the redactions in the documents tabled. Here too, such remarks are singularly unhelpful to the aim of finding a workable accommodation and ultimately identifying mechanisms that will satisfy all actors in this matter.

But the fact remains that the House and the government have, essentially, an unbroken record of some 140 years of collaboration and accommodation in cases of this kind. It seems to me that it would be a signal failure for us to see that record shattered in the third session of the 40th Parliament because we lacked the will or the wit to find a solution to this impasse.

The House has long understood the role of the government as “defender of the realm” and its heavy responsibilities in matters of security, national defence and international relations. Similarly, the government understands the House's undoubted role as the “grand inquest of the nation” and its need for complete and accurate information in order to fulfill its duty of holding the government to account.

Examples have been cited of mechanisms that might satisfy the competing interests of both sides in this matter. In view of the grave circumstances of the current impasse, the Chair believes that the House ought to make one further effort to arrive at an interest-based solution to this thorny question.

Accordingly, on analyzing the evidence before it and the precedents, the Chair cannot but conclude that the government's failure to comply with the order of December 10, 2009, constitutes prima facie a question of privilege.

I will allow House leaders, ministers and party critics time to suggest some way of resolving the impasse, for it seems to me we would fail the institution if no resolution can be found. However, if in two weeks' time, the matter is still not resolved, the Chair will return to make a statement on the motion that will be allowed in the circumstances.

In the meantime, of course the Chair is disposed to assist the House in any way it can, and I am open to suggestions on any particular role that I as your Speaker can play.

I thank the House for its attention.

Canada's Olympic and Paralympic Athletes April 22nd, 2010

I would now like to read the names of the Canadian athletes who are with us today. I will ask hon. members to withhold their applause until I have completed the list.

Alpine Skiing: Anna Goodman, Erin Mielzynski, Jan Hudec, Julian Cousineau, Louis-Pierre Helie, Marie-Michele Gagnon, Erik Guay, Marie-Pier Prefontaine, Ryan Semple, Shona Rubens, Tyler Nella.

Para-Alpine Skiing: Andrea Dziewior, Arly Fogarty, Jeff Dickson, Karolina Wisniewska, Kirk Schornstein, Lauren Woolstencroft, Matthew Hallat, Melanie Schwartz, Morgan Perrin, Viviane Forest, Lindsay Debou, Sam Danniels, Nicholas Brush.

Biathlon: Brendan Green, Marc-Andre Bédard, Megan Imrie, Rosanna Crawford, Zina Kocher.

Bobsleigh: Chris Le Bihan, Heather Moyse, Helen Upperton, Kaillie Humphries, Lascelles Brown, Lyndon Rush.

Cross-Country Skiing: Daria Gaiazova, Drew Goldsack, George Grey, Sara Renner, Stefan Kuhn.

Curling: Carolyn McCorie, Corinne Bartel, Sonja Gaudet, Susan O'Connor, Bruno Yizek, Darryl Neighbour, Ina Forrest.

Figure Skating: Anabelle Langlois, Cody Hay, Vanessa Crone, Vaughn Chipeur.

Freestyle Skiing: Alexandre Bilodeau, Chloe Dufour-Lapointe, Jennifer Heil, Kristi Richards, Kyle Nissen, Maxime Gingras, Pierre-Alexandre Rousseau, Steve Omischl, Veronika Bauer, Vincent Marquis, Warren Shouldice.

Ski Cross: Danielle Poleschuk, Davey Barr, Julia Murray, Kelsey Serwa.

Ice Hockey: Caroline Ouellette, Tessa Bonhomme, Scott Niedermayer.

Luge: Alex Gough, Chris Moffat, Ian Cockerline, Justin Smith, Meaghan Simister, Mike Moffat, Samuel Edney, Tristan Walker.

Nordic Skiing: Alexei Novikov, Brian McKeever, Robin McKeever, Colette Bourgonje, Lou Gibson, Mark Arendz, Tyler Mosher.

Nordic Combined: Jason Myslicki.

Skeleton: Amy Gough, Michelle Kelly, Mike Douglas.

Ski Jump: Eric Mitchell, Mackenzie Boyd-Clowes, Stefan Read, Trevor Morrice.

Sledge Hockey: Hervé Lord, Marc Dorion, Paul Rosen, Raymond Grassi, Todd Nicholson.

Snowboard: Alexa Loo, Caroline Calvé, Dominique Maltais, François Boivin, Maëlle Ricker, Michael Robertson, Palmer Taylor, Rob Fagan, Sarah Conrad.

Speed Skating: Anastasia Bucsis, Clara Hughes, Denny Morrison, François-Olivier Roberge, Kyle Parrott, Mathieu Giroux, Shannon Rempel.

Short Track Speed Skating: Charles Hamelin, François Hamelin, Guillaume Bastille, Kalyna Roberge, Marianne St-Gelais, Tania Vicent, Valérie Maltais.

Once again, congratulations to our Olympic and Paralympic athletes, and thank you.

All hon. members are invited to join the athletes at a reception immediately following in room 200, West Block.

Points of Order April 1st, 2010

I am now prepared to rule on the point of order raised on March 24, 2010, by the hon. member for Joliette, concerning comments made on the social networking site Twitter by the hon. member for Ottawa—Orléans regarding the presence or absence of members in the House.

I would like to thank the member for Joliette for having raised this matter and the member for Ottawa—Orléans for his comments on March 29, 2010.

In raising his point of order the member for Joliette informed the House that the member for Ottawa—Orléans on March 11, 12, 18 and 19, 2010, using the Twitter site, posted the exact number of members of each party present in the House, as well as the names of some members who were absent or present.

Noting the longstanding practices that a member is not allowed to make comments on the presence or absence of members in the House and that members cannot do indirectly what cannot be done directly, he contended that these rules should also apply to members using new technologies.

Intervening on March 29, 2010, the hon. member for Ottawa—Orléans asserted that the Speaker has no authority to rule on statements made outside the House, citing House of Commons Procedure and Practice, second edition, at page 614. He stated that not only is the social networking site Twitter outside the House, but that the House leader for the Bloc Québécois had presented no evidence that the public information shared via Twitter was initiated from the floor of the House or from the galleries.

Furthermore, he noted that, contrary to the claim of the member for Joliette, the information posted was not privileged but, in fact, very public. He concluded by reiterating that members have an obligation to respect privileged information, but should not have fewer rights than any other citizen in disseminating public information.

House of Commons Procedure and Practice, second edition, contains a number of references to the prohibition against reflecting on the presence or absence of members in the House, including the one referred to by both members at page 614, and others at pages 126, 127 and 213.

In particular, I would like to draw to the attention of members the passage on page 213 which states:

One of the Member’s primary duties is to attend the sittings of the House when it is in session, unless the Member has other parliamentary or official commitments, such as committee meetings, constituency work or parliamentary exchanges. This obligation is enshrined in Standing Order 15: “Every Member, being cognizant of the provisions of the Parliament of Canada Act, is bound to attend the sittings of the House, unless otherwise occupied with parliamentary activities and functions or on public or official business”. The Speaker has traditionally discouraged Members from signalling the absence of another Member from the House because “there are many places that Members have to be in order to carry out all of the obligations that go with their office”.

As members are repeatedly cautioned, it is clearly unparliamentary to make reference in debate to the presence or absence of other members. The case before us is somewhat novel and, while I accept the viewpoint of the hon. member for Joliette, I also appreciate the argument made by the hon. member for Ottawa—Orléans. It is clearly impossible for the Chair to police the use of personal digital devices by members, for example, by trying to distinguish whether certain texting has originated from the Chamber or not. Nor would the Chair want to change its longstanding practice of refraining from comment on statements made outside the House. That said, however, it seems to me that statements like the ones complained of are—at the very least—unfortunate and I would strongly advise all members to refrain from such behaviour in the future as you undoubtedly understand the possible repercussions on colleagues and on the reputation of the House itself.

All the same, I want to take this opportunity to address the broader issue of the ways in which these new technologies and tools challenge our historic practices and procedures. While they are extremely useful in reaching out to colleagues, constituents and the public, these technologies need to be used judiciously, not least because of the speed with which messages and images can be distributed once they are on the Internet.

On various occasions over the past months, members have raised concerns over their use in conjunction with House and committee proceedings. In fact, the very use of the social networking site Twitter has been raised as an issue in this House several times, including the case before us. For example, on October 20 and 27, and again on November 17, 2009, postings on Twitter resulted in members apologizing to this House.

More recently, a posting on Facebook gave rise to concern for the member for Saskatoon—Humboldt when a photograph of the member, and a statement related thereto, were posted on the popular networking site.

The House and the Standing Committee on Procedure and House Affairs have already dealt with some of the issues related to new technologies. For example, in response to concerns about the re-use of parliamentary webcasts on March 5, 2009, the House concurred in the eighth report of the Standing Committee on Procedure and House Affairs. This allowed us to strengthen and broaden the Speaker's permission that appears on the back page of Debates, concerning the reproduction and use of webcasts of House and committee proceedings.

Given the increasing frequency of incidents involving social networking technologies, I believe it would be helpful if the Standing Committee on Procedure and House Affairs would consider the issues related to these technologies and their impact on House and committee proceedings.

I thank hon. members for their attention.