Background / Precedent 17762

8/14/2019 Background / Precedent 17762

1/8

Background / Precedent Privilege Matter Item 9A

17762 COMMONS DEBATES February 28, 1991

* * *

PRIVILEGE

STANDING COMMITTEE ON JUSTICE AND THE SOLICITOR GENERAL

Mr. Derek Lee (Scarborough-Rouge River): Mr. Speaker, given that I had begun toaddress the matter earlier today, I will not belabour the items that I raised at that time. I willcontinue roughly where I left off.

I would point out that following discussions with colleagues opposite I will delete from myremarks a number of factual items that perhaps, while relevant, may be seen by some to becollateral and not directly on a point in making aprima facie case.

I want first to refer the Chair - and I am sure I have no need to do it in detail - to preciselywhat we mean here when we are talking about privilege. I will make a number of references. I

will not read all the materials, but I will cite them.

The first item would be the definition of privilege which has been read in this House manytimes and cited. I would just refer to two parts of it: that is that the privilege is the sum of thepeculiar rights enjoyed by each House collectively as a constituent part of the High Court ofParliament, and the last portion which states:

-privilege, though part of the law of the land, is to a certain extent an exemption from the ordinary law.

I will refer to that later. That citation is from Beauchesne's and is also contained in thecurrent document calledPrivilege in the Modern Contextpublished by the House.

The second item I want to refer to is the particular right as one of the rights and privilegesthat I address here. That specific right is the right to institute inquiries, call witnesses anddemand papers. That is a collective right of Parliament and its committees. That right is listed asone of a number of rights also at page 2 of the documentPrivilege in the Modern Context.

The particular right breached is the right to obtain information through committee orders. Inote a second citation in Erskine May, page 69, twentieth edition, where he states that:

When any of these rights and immunities is disregarded or attacked, the offence is called a breach ofprivilege-

I maintain that the failure or inability of the minister, in a manner that I will refer to later, is adisregard of that right.

(1240)

I would also refer to section 18 of the Constitution Act 1867 which codifies, generally, therights and privileges of Parliament as we knew them in 1867, Sections 5 and 6 of the Parliamentof Canada Act which restates them, and section 108 of the Standing Orders which provides the

9A-1


2/8


existing codification of the mandate of the House and its committees. I will not read them intothe record.

I would point out that in all of these there are no restrictions on the right of Parliament incommittees to obtain information other than the limiting subsection referred to in the Parliamentof Canada Act and the Constitution which confines those rights and privileges to those existingin 1867 and it is not to go beyond those.

I had hoped to cite a reference - it will take up too Much of the Houses time given my earlierdiscussions - of an unfortunate individual in the British Parliament named Mr. Lee who, in theyear - roughly 1704 - had failed to comply with an order of a committee and was taken intocustody by the Sergeant-at-Arms and brought to the House. I will resist the anecdotal recital ofthat, as amusing as it might be.

My obligation here is to show you a prima facie case that the right and privilege has beenbreached. The standard I must achieve is not that of beyond a balance of probability, nor is itbeyond a reasonable doubt, it is simply aprima facie case and there may, in fact, be justification,

as will be put forward as I hope the procedure will evolve here.

The facts on which the claim is based originated in June of 1987 when an inmate of theEdmonton Institution escaped. Following that, the Commissioner of Corrections commissioned areport pursuant to section 14 of the Penitentiaries Act. In December 1989, the report wastendered to the Corrections Commissioner and the report was made public. However, there wereportions of the report deleted. There were deletions of pages and paragraphs and two of theconclusions and recommendations in that report were deleted.

In May 1990, the Standing Committee for Justice and the Solicitor General were reviewingthe mandatory supervision provisions of the Parole Act and asked for an unexpurgated copy ofthat report, which has become known as the Weir report. At the same time, the committee askedfor an unexpurgated copy of what has become known as the Lgre report, a report which dealtwith an escape of an inmate in New Brunswick.

In our request for these documents, the committee was unsuccessful. On December 4, in theface of the refusal or inability of the Solicitor General to provide the requested unexpurgatedversion, the committee formally ordered that the Solicitor General provide this report. I believe Ishould read that particular order into the record at this time. It reads:

That pursuant to the Committee's own mandate, the Committee order the production before it of theuncensored version of the reports to Correctional Service Canada by one, Mr. Weir, governing the escape ofDaniel Gingras in the province of Alberta and, two, by the Board of Investigations concerning an offender(Allan Lgre) unlawfully at large in the Province of New Brunswick, pursuant to-

And here we have the recital of the statutes I had earlier brought to your attention.

-and that the documents be delivered within seven days of the date of this order.

The Solicitor General was not able to comply.

9A-2


3/8


4/8


rights and privileges, and it does not attempt to bind Parliament in the restrictions that it places aspart of the general law of the land.

It does however place restrictions; actually it gives rights to certain groups and institutions ascourts and investigators. They are specifically given rights to override the restrictions of thePrivacy Act. Parliament is not referred to in the act other than a reference to the right or ability ofa Member of Parliament to obtain personal information where he or she is acting on behalf of aconstituent.

(1250)

I want to refer you, Mr. Speaker, to the element I raised earlier in the definition of privilegeand the section which states that privilege, though part of the law of the land, is to a certainextent an exemption from the ordinary law. I commend to you that concept in viewing the effectof the application of the Privacy Act in this.

This is not a partisan approach to this issue. Although many Canadians see the House of

Commons from time to time being very partisan, this is apparently not. The committee wasunanimous in its order and there have been a number of discussions between members on thisside and members opposite in connection with this. All parties have participated in good faith inthose discussions.

It is my view that this motion I make to you today is an assertion of the rights of everyonewho put us here in this Parliament.

There are three other quick points I would like to leave with you because I believe they arerelevant and will assist you in reaching your decision.

If the committees, as now structured, do fail in their ability to obtain information in themanner that has transpired here, then the committees will fail in doing their work. If the justicecommittee fails, then other committees will also similarly come up short.

Second, if this is a contest between the rights and privileges of Parliament and the obligationsof members of the government-that would be ministers in this House, or let us simply speak ofthe executive branch of government-if it is a conflict between the rights and privileges ofParliament and the executive branch of government then you, respectfully, Mr. Speaker, have aduty-and I know you understand this-to uphold the rights, privileges and powers of Parliament inthe face of that.

Third, if you do find that there has been a prima facie case made that the collective rights and

privileges of members of this House have been breached in this instance on the facts of this case,then I am prepared to move to an appropriate motion. However, I would ask that the Chair allow24 hours, a day, that would permit me and others, including the chair of the justice committee toconsult with the House leaders, the committee chairs, and the Solicitor General in constructing amotion that would serve the needs of Parliament and all of the members of the House.

9A-4


5/8


Mr. Speaker, unless you wish me to, I will not address the conceptual issue of the differencebetween a procedural motion for concurrence and the privilege claim that I make here today. Ifyou wish me to, I could do it very shortly, and it might assist.

Mr. Speaker: First of all, I want to say to hon. members, and also to the public, this is one ofthe finest arguments that has been presented to me in my years as Speaker.

I want to say to all hon. members on both sides of the House that I am very aware that thismatter is being brought to me after a great deal of co-operative discussion among manymembers.

I accept very much the invitation of the hon. member to get into a further stage of thediscussion. However, if I am reading correctly the hon. member's remarks, it is not necessary atthis time. I would ask the hon. Member perhaps to conclude and I will then hear theparliamentary secretary.

Mr. Lee: Mr. Speaker, it would only be necessary for me to address this in the event that you

felt there was a conflict between that procedure and the privilege procedure. If I might, for thesake of the 30 seconds it might take, I think I will address that. There was some thought amongmembers and staff here

Mr. Speaker, I cannot help but intervene by saying that if we get to that point, I will certainlygive you more than 30 seconds.

Mr. Lee: Well then, I will pass on that in the hope that if further argument is required, I willhave an opportunity to address that.

To conclude very briefly, the order of the justice committee on December 4 was a valid,subsisting, uncomplied with order. The order materialized or crystallized a right of all membersof this House: a right to obtain information, a right to require production of papers. The right torequire that, to achieve that objective, has been breached by the failure of the Solicitor General ofCanada to provide the information that was clearly, specifically outlined in the order.

The failure to do it in the way that was cited earlier in the quotation from Erskine May, and Iwill just note it very quickly: "That when any of these rights and immunities is disregarded orattacked the offence is called a breach of privilege and it punishable-" et cetera. We are not intopunishment here. We want to resolve a conflict.

In my view it is clear that the right is there, the privilege is there. The breach occurred, it isunrectified and that you, Mr. Speaker, must find that there has been a breach of privilege, and if I

may use the term, collective privilege because it is not my privilege alone, it is the privilege ofevery member on that committee. That has been breached and the House must deal with thatbreach.


9A-5


6/8


Mr. Speaker: The hon. member for Kingston and the Islands, perhaps the hon. membercould help the Chair.

Mr. Peter Milliken (Kingston and the Islands): Mr. Speaker, I just wanted to make a verybrief intervention which is really consequent on the excellent one by the hon. member forScarborough-Rouge River in presenting his case. I wanted to comment on the parliamentarysecretary for his very thoughtful remarks, but I had a couple of comments on them and there aretwo aspects that surprised me and I thought in dealing with your Honours decision on thismatter you might want to consider this point.

(1310)

It surprised me that the hon. parliamentary secretary argued that the question of the proprietyof the minister delivering the report was an issue. It seems to me that the committees of thisHouse and the House itself have certain powers of a court and courts clearly have jurisdiction inrespect to the Privacy Act to receive documents that may be otherwise protected under that actand determine whether the documents in fact should be made public.

It seems to me that a committee of this House must have similar powers. It was, after all, astatute passed by this House that created this act. Parliament has the residual powers of a courtfor certain purposes. It has power to examine witnesses and call for production of papers andthose powers have been an inherent jurisdiction of this House and of its committees from timeimmemorial. It is one of the privileges of the House to be able to exercise that jurisdiction, ineffect the jurisdiction of a court.

The committees of the House are creatures of the House and have similar powers, and I amsurprised to hear the parliamentary secretary arguing otherwise. I leave it at that.

The second aspect of his remarks which I think deserves comment was his suggestion thatthe issue of the propriety of the minister complying with the committees request be referred toanother committee.

Certainly as a member of the privileges and elections committee I would be more than happyto embark on such a study because it seems to me that it is an interesting point if, in fact, he isright on his first one, that somehow the committee lacks jurisdiction to make the determinationthat a court could make.

If he would like the issue studied, it could be studied there or by the committee that hasalready done so much work on this issue in dealing with this matter, and I am happy to supportthat part of the suggestion if your Honour feels it is necessary. But my argument is that I do not

believe it is necessary for the minister to be concerned about the propriety of him making therelease to a parliamentary committee.

Similarly, he should not be concerned and I am sure he would not be if he were releasing thisdocument to a court of law at the order of the court. I do not know why the request of aparliamentary committee should be treated any differently than the order of a court, and I amsurprised to hear the parliamentary secretary suggest otherwise.

9A-6


7/8


I invite your Honour to look at the origins of parliamentary privilege, to look at the juridical basis for them and the similarity between the privileges of Parliament and the inherentjurisdiction of a Superior Court and determine whether that jurisdiction exists. I think it followsthat this document should be produced.

Mr. Speaker: I began by complimenting the hon. member for Scarborough- Rouge Riverand thanked the parliamentary secretary for his thoughtful contribution. I extend the samecompliments to the hon. member for Edmonton East and the hon. member for Kingston and theIslands.

I think a suggestion has been made which I would like to ask the House if it would beprepared to concur in, a suggestion made by the parliamentary secretary that the matter bereferred to the committee of privileges and elections.

It would seem that this might be an appropriate way to resolve this without putting theSpeaker in a position where I have to rule on what is clearly a very difficult case. If I were todecide that there were a prima facie case on the basis of the eloquent arguments of the hon.

member for Scarborough-Rouge River, that is if the House supported my notion that there was aprima facie case, it would go to that committee.

We have a suggestion in front of us, and it seems to me very sensible, from the hon.parliamentary secretary from the government side that if there were a disposition of the House toput it in front of that committee that we allow it to go there. In a moment I am going to ask theHouse if the House will agree to that.


Mr. Speaker: It is not often that the House gets so close to making up its mind aboutsomething and then lets it slip away. I do not know whether to call on the hon. parliamentarysecretary, but I am in a position where I know very extensive discussions have taken place.

I am in the hands of the House, and yet it seems to me that the attempt here has been to putthis in a committee of this place, which is exactly where it would go if I were to rule that therewas a prima facie case of privilege. The committee, of course, could decide whether it is privilege. The committee could decide how ministers are to deal with things which areapparently contradictory between a law that has been passed by this House and the ancient lawsand traditions of this place. Sooner or later somebody is going to have to look at this. We haveright at our fingertips the opportunity to do so at this point.

I can only say that the whole approach that has been taken up until now seems to make a lotof sense and would be a very great help to the Speaker, because what comes out of thatcommittee would be a very great help to the Speaker in subsequent cases.

Hon. Harvie Andre (Minister of State and Leader of the Government in the House ofCommons): Mr. Speaker, I came in late on the debate, but I just wanted to offer any assurancesto the hon. member who raised this point of privilege that this is viewed, in the governments

9A-7


8/8


perspective, as a genuine dilemma for which guidance and so on is sought and on which we needto have the kind of discussion and evaluation that the committee could ascribe to it.

Leaving it just a question of privilege, because of the adversarial nature of the House and thenature of the direction, puts the government in an awkward position. We might, quite frankly,argue that nothing the minister has done has breached any privileges and so on. We would beforced to in that sense. I think that would be too limiting. I think that would be inappropriate.

If there is concern, as I understood, about prorogation and what effect that might have, youcertainly have my assurances in regard to that whatever order of the House is necessary to carrythis on through any prorogation and to pick it up after prorogation. You have my assurances offull co-operation in that regard. There is no attempt here to put it aside or into a closet, but rathersome attempt to address this fundamental problem that the Solicitor General has at this time. Onedoes not have to be too imaginative to hypothesize many of these kinds of dilemmas. If we canmake progress and resolve it, I think we are serving the interests of the House. I give myassurance of full co-operation.

Mr. Speaker: I know that this might lead to some sense that members need to speak further.I think it is appropriate for the Chair, though, to say that the matter has been not only very welldebated following the splendid lead of the hon. member for Scarborough - Rouge River, but veryfully debated.

Perhaps I can say this. I have been a member of this House since 1972. I have never seen avery serious issue so close to being resolved by agreement as I see it in front of me now. Thatdoes not mean that what comes out of the committee will necessarily satisfy everybody, but whatit does mean is that we have a committee of this House dealing with what is essentially anextraordinarily difficult issue and an issue which, by the way, was not even dreamed aboutseveral hundred years ago at Westminster.

Is the House in agreement?

Some hon. members: Agreed.

Mr. Speaker: I thank hon. members. I know that hon. members will allow me to say againthat I thank very much the hon. member for Scarborough-Rouge River for not only the excellentposition that he took, the excellent address, but the manner in which he brought this matter to theHouse. I extend that compliment to all members who have taken part in this. This is one of thebetter moments in our long history. Thank you.Excerpt Taken From:

Debates of the House of Commons Canada, Dec. 2rd Session, 34th Parliament. Pages

17762 - 17772, Ottawa: Queens Printer for Canada, 2009.

9A-8

Documents

Background / Precedent 17762