Justice Minister Rob Nicholson rose in the House of Commons this afternoon to respond to a Question of Privilege from LIberal MP Derek Lee. In a nutshell, Lee has essentially argued that the House of Commons is basically the bomb. If it wants something – a witness, a pizza, some uncensored government documents related to Afghanistan — there ain't nuthin' that can stand in the way. Nicholson and the Conservatives disagree. Here is the speech Nicholson gave this afternoon in the House of Commons to convince House Speaker Peter Milliken to reject Lee's motion:
Speaking Notes for The HONOURABLE ROB NICHOLSON, P.C., Q.C, M.P for Niagara Falls Minister of Justice and Attorney General of Canada to the House of Commons regarding Questions of Privilege
March 31st, 2010
Ottawa, Ontario
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Mr. Speaker, on March 18, 2010, three members rose on questions of privilege: the Member for Scarborough—Rouge River, the Member for St. John’s East, and the Member for Saint-Jean.
As numerous representations were made by the opposition on March 18, I hope you will indulge me with the opportunities necessary to respond to all of these points.
Mr. Speaker, it is not entirely clear from the submissions of the three members as to what exactly was being alleged as a prima facie case of a breach of privilege.
For instance, the Member for Scarborough—Rouge River proceeded to accuse members of this government and officials of the Department of Justice everything from “malice” and “subversive intent” to “constitutional sedition” and “conspiracy”.
On the other hand, the Member for St. John’s East and the Member for Saint-Jean asked you to find a prima facie breach of privilege based on the House order of December 10, 2009. Yet, from the motion they proposed should such a prima facie case were to be found, they made it clear that no actual breach of privilege has occurred since the original order lacked procedures to protect national security interests.
Therefore, Mr. Speaker, I will do my best to respond firstly to the questions raised by the Member for Scarborough—Rouge River, and then I would request the opportunity to address the question raised by the Member for St. John’s East and the Member for Saint-Jean.
Turning to the issues raised by the Member for Scarborough—Rouge River, as I see it, there are essentially two allegations before you regarding breaches of the House’s privileges:
First, the Member for Scarborough—Rouge River takes issue with a statement by the Minister of National Defence in Question Period on December 1, 2009; and
Second, the Member for Scarborough—Rouge River takes issue with a letter from a senior law officer of the Crown to the Law Clerk of the House of Commons, dated December 9, 2009.
I would submit to you, Mr. Speaker, that no prima facie breach is made out in either of these cases.
I suggest that this question must, like all questions of parliamentary privilege, be considered in light of two guiding values:
First, as is well-established in law and parliamentary practice, the principle of necessity must underscore all matters of privilege.
Second, as parliamentarians, we should always be guided by a principle of great restraint when asserting privileges of this House.
This approach was expressed in a report from a 1967 UK Select Committee on Parliamentary Privilege when it recommended that parliamentary privileges and immunities should be exercised “as sparingly as possible” and “only when [the House] is satisfied that to do so is “essential.”
Similarly, O’Brien and Bosc cite Joseph Maingot’s Parliamentary Privilege in Canada that “A genuine question of privilege is therefore a serious matter not to be reckoned with lightly, and thus rarely raised in the House of Commons.” Similarly, they cite the 1976 report of the Special Committee on Rights and Immunities of Members, chaired by Speaker Jerome, in noting that “a question of privilege is a serious matter, when validly raised, but was frequently resorted to when no real question of privilege was actually involved.”
Mr. Speaker, I suggest that no genuine question of privilege is before you today and that the dignity and efficiency of this House would be better served by dismissing the questions raised by the Member opposite.
Before turning to the specific points raised by the Member for Scarborough—Rouge River, I would like to first emphasize that, in my view, the questions raised are primarily a matter of debate.
Freedom of speech is essential in a free and democratic society. Freedom of speech is also the cornerstone of parliamentary privilege. Freedom of speech is essential in order to facilitate debate in the House and more generally in a democratic society.
This means there is an acceptance that members will hold differing views – and they have the protected right to express those differences. That includes opinions as to interpretation of laws.
The central issue before you is whether parliamentary privilege gives the House an absolute and unqualified right to order the production of documents and to receive the documents, and whether any expression of views that it might not constitute a contempt of the House.
On the first point, I would remind the House that our parliamentary privileges are not indefinite nor unlimited, but defined by the Constitution and the Parliament of Canada Act as those possessed by the UK House of Commons in 1867.
On the second point, I would remind the House that the exact scope of those privileges has been a matter of debate since Confederation.
As you know, Mr. Speaker, many of our parliamentary privileges are unwritten. While there may be general agreement on the existence of parliamentary privilege, because our privileges are not codified there are quite often debates on the scope of our privileges.
There have been occasions where the Government of Canada and the House of Commons have taken different positions on the scope of parliamentary privilege. An example was in the case of Vaid, where the Attorney General of Canada and the House of Commons took different views on the scope of the powers of the House to regulate its internal affairs. We also saw in that case that the scope of the powers of the House was found to be more limited than what had been claimed.
A similar debate is before us today. The Member for Scarborough—Rouge River has expressed an opinion on the scope of the powers of the House to send for papers. The Minister of National Defence, on behalf of the Government, has taken a different view. Similarly, the Law Clerk of the House of Commons has expressed his opinion on the powers of parliamentary committees to compel the testimony of witnesses, and the Department of Justice has expressed a different point of view with respect to government officials who are bound by the law and ought not to be pressured by parliamentary committees to breach their duties under statutes like the Privacy Act.
These differences in opinion are to be expected in a parliamentary democracy, and their resolution should be facilitated through debate, without imputations of bad faith, malice, subversion or intimidation.
This debate is not new. Nor is it limited to Canada. And while one might argue that in theory the House has absolute powers, Canadian and other commonwealth examples demonstrate that this has not been recognized in practice.
For example, Speaker Beaudoin observed in 1957 that “[n]o matter how ample its powers may be, there are certain documents to which the house is not entitled, and that is those a cabinet minister refuses to produce on his own responsibility.”
Similarly, in the United Kingdom, a Resolution on Ministerial Accountability was adopted unanimously by the House of Commons in March 1997, which acknowledged that Ministers may withhold information in accordance with access to information rules, reflecting the long-standing practice in that House.
In Australia, the Government routinely relies on Crown privilege to withhold confidential information from parliamentarians and a Senate committee in Australia acknowledged last month “that there are certain documents which although it may have the power to receive, the Senate ought refrain from demanding.”
Odgers’ Australian Senate Practice also states that while the Senate undoubtedly possesses a power to send for papers and records, “it is acknowledged that there is some information held by government which ought not to be disclosed. This principle is the basis of a postulated immunity from disclosure which was formerly known as crown privilege or executive privilege and is now usually known as public interest immunity. While the Senate has not conceded that claims of public interest immunity by the executive are anything more than claims, and not established prerogatives, it has usually not sought to enforce demands for evidence or documents against a ministerial refusal to provide them but has adopted other remedies.”
In 1990, a Canadian Special Committee on the Review of the Canadian Security Intelligence Service Act and the Security Offences Act stated that “matters of national security are by convention the prerogative of the Crown, not Parliament. This perspective has been enhanced by the view that intelligence agencies need a high level of secrecy to be effective and that making Parliament knowledgeable about such matters may not only politicize affairs, but may actually endanger the state by weakening the effectiveness of its defences.”
Against this backdrop, I would now like to address the two specific allegations made by the Member for Scarborough—Rouge River in turn.
Mr. Speaker, I would like to first turn to the allegation that the statement of the Minister of National Defence on December 1, 2009, is – as the Member for Scarborough—Rouge River alleged in his remarks on March 18 – a “slander” of our House’s powers and an attempt to “intimidat[e] witnesses”.
Mr. Speaker, there are two fundamental issues with this allegation.
First, this House is a place for debate: for the free expression of ideas and for Members to put forth opposing views.
The notion that a member could be in contempt of Parliament for stating an alternate point of view – or a minority point of view – would run counter to the fundamental principles of parliamentary privilege, which is the freedom of speech of Members. It is natural that members will not always agree with one another.
The Minister of National Defence made a statement responding to a question in Question Period. The Member for Scarborough—Rouge River evidently disagrees with the Minister's statement. This is no cause for alarm, and it certainly is not a question of privilege.
If such were the case, Mr. Speaker, I am personally risking contempt by speaking in opposition to the Member’s question today! This is not the spirit, the practice, nor the purpose of this House.
The second problem with this allegation relates to the minimal role that the Speaker is empowered to perform in relation to Question Period. As O'Brien and Bosc state at page 510, and I quote:
“The Speaker ensures that replies adhere to the dictates of order, decorum and parliamentary language. The Speaker, however, is not responsible for the quality or content of replies to questions. In most instances, when a point of order or a question of privilege has been raised in regard to a response to an oral question, the Speaker has ruled that the matter is a disagreement among Members over the facts surrounding the issue. As such, these matters are more a question of debate and do not constitute a breach of the rules or of privilege.”
This debate over whether the House and its committees have an unqualified right to demand and receive government documents is actually a very old one. As I noted at the outset of my remarks, the practice of this House, and in other jurisdictions, has always been to acknowledge that some information ought not to be disclosed for considerations of public policy or national security.
Mr. Speaker, to hold today that the statement by Minister of National Defence is a breach of the House’s privileges rather than a question of debate would amount to foreclosing free speech and debate on an issue that has always been a matter of contention in Westminster parliaments.
Mr. Speaker, I now turn to the second issue raised by the Member for Scarborough—Rouge River, who claims that a letter from an Assistant Deputy Minister of the Department of Justice to our Law Clerk obstructs public servants and threatens statutory and civil sanctions.
The Honourable Member’s remarks in relation to the letter were unfair, injudicious and intemperate in the extreme. They impugned the good faith, professional competence and reputation of both a senior law officer of the Crown and the Department of Justice. The Honourable Member imputed possible motives of “malice,” “subversive intent” and “a conspiracy to undermine Parliament.” These allegations are baseless.
As Attorney General, I asked that officials review the December 7th legal opinion that Mr. Walsh provided to the Honourable Member for Vancouver South, and to provide to him the position of the Department of Justice in that regard.
The letter was part of an exchange of views between legal counsel on matters of law. On no reasonable view of the matter can the mere expression of a legal position by a law officer of the Crown constitute a breach of the privileges of the House.
Under the Department of Justice Act, the Attorney General of Canada is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada. Officers in my Department act, in principle, under my instruction.
It would be a breach of the constitutional separation of powers and an abuse of the proceedings of this House to pursue an officer of my Department for having issued, in the course of her duties, a letter to the Law Clerk of the House in response to speculation as to the position of the Department on an issue of law. The purpose of the letter was to clarify the Department’s position in a polite and principled manner.
This House is not a court of law, and its legal advisers are not judges. If a statute needs clarification, it can be amended by an Act of Parliament with the concurrence of this House.
While I respect our Law Clerk, his views are opinions – not the law. It is not a breach of privilege for a law officer of the Crown to hold a different view. To suggest that a legal adviser who has a different opinion from our Law Clerk, from the Member for Scarborough—Rouge River, or even of the House as a whole, is somehow in contempt of the House would be an abuse of our parliamentary privileges.
I would underscore at this point Speaker Fraser’s April 9, 1991, ruling that “The Speaker has no role in interpreting matters of either a constitutional or legal nature.” Speaker Fraser made a similar ruling in 1987 regarding the application of the Official Languages Act. Speaker Fraser cited Beauchesne’s 5th edition where it states that “The Speaker will not give a decision upon a constitutional question nor decide a question of law.” He then ruled as follows:
“From a procedural point of view, the contention of the honourable Member for Charlevoix that if the Official Languages Act does not apply to the House of Commons his privilege is infringed, is clearly not founded in precedent or practice. Whether or not the Act applies is a legal issue which the courts should decide, not the Speaker.”
I turn now to the substantive content of the letter of December 9, 2009. It begins with a succinct statement of some basic constitutional principles that underlie and strengthen our system of parliamentary democracy. None of these principles were invented by the Department of Justice; each of these principles has been recognized by the Supreme Court of Canada as part of the fundamental structure of the Constitution. Mr. Speaker, there is nothing offensive to the privileges of this House in recognizing the existence of the rule of law, parliamentary sovereignty, responsible government and the separation of powers as essential to the functioning of parliamentary democracy.
The letter of the Assistant Deputy Minister then states: “The Government of Canada has great respect for the work of parliamentary committees, and both Ministers and government officials are to strive to provide them with information in a full and transparent manner. However, government officials are sometimes under a legal requirement, imposed by a law of Parliament such as the Privacy Actor the Income Tax Act, not to disclose certain information without the consent of those to whom a duty of confidentiality is owed. Legal counsel may also be bound by well-established requirements of the common law, such as solicitor-client privilege, not to release information.”
This is an expression of profound respect for the work of parliamentary committees and it is repeated at the end of the letter. It is also a recognition that government officials are sometimes duty-bound by Acts of Parliament or other basic legal requirements not to disclose information without the consent of those to whom a duty of confidentiality is owed.
This is reflected in successive versions of guides to Ministers published by different Prime Ministers, which describe the responsibilities of public servants appearing on behalf of their Ministers at parliamentary committees.
For example, on page 14 of Prime Minister Chrétien’s guide, published in June 2002, it stated:
“Officials have a duty and specific legal responsibility to hold in confidence information that may have come into their possession in the course of their duties. Therefore, when appearing before parliamentary committees, they are bound by these legal obligations, as well as an obligation to the Minister and to the government, not to disclose information that is confidential for reasons of national security or privacy, or because it consists of advice to Ministers.”
Prime Minister Martin’s guide, published in 2004, contains a virtually identical statement at page 20.And that same statement is made on page 18 of the current guide, Accountable Government.
This has never been challenged by the House of Commons.
In 1991, the Government issued Notes on the Responsibilities of Public Servants in Relation to Parliamentary Committees. This document, which has not been rescinded or altered under successive governments, states, and I quote:
“Public servants have a general duty, as well as a specific legal responsibility, to hold in confidence the information that may come into their possession in the course of their duties. This duty and responsibility are exercised within the framework of the law, including in particular any obligations of the Government to disclose information to the public under the Access to Information Act or to protect it from disclosure under other statutes such as the Privacy Act.”
The letter from the Assistant Deputy Minister also cites the ruling of the Supreme Court of Canada in the Vaid case for the legal proposition that Acts of the Parliament of Canada may apply expressly to the Houses of Parliament, such as the Official Languages Act, or implicitly, as in the case of the Human Rights Act. In the Vaid case, the Supreme Court rejected the argument that the Canadian Human Rights Acthad no application to the House of Commons because it did not so expressly provide; the Supreme Court held that that argument was “out of step with modern principles of statutory interpretation accepted in Canada,” and that the proper approach was to construe the words of the Act in their entire context, having regard to the scheme, object and remedial purpose of the Act.
Each of the three branches of government must respect the legitimate sphere of activity of the others. However, as the Supreme Court of Canada put it in Vaid: “Legislative bodies created by the Constitution Act, 1867 do not constitute enclaves shielded from the ordinary law of the land.”
The Member also raised the issue of the 1991 situation in which personal information protected by the Privacy Act was ordered by the House. You may recall, Mr. Speaker, the order of the House was grounded in the authority of the Privacy Act.
I turn now to the paragraph of the letter that the Member for Scarborough—Rouge River characterizes as “contemptuous.” That paragraph of the letter reads in full as follows:
“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.”
Mr. Speaker, there should be nothing controversial in that statement. It simply means that where the Parliament of Canada has, by statute, enacted a duty of confidentiality and imposed it on government officials, or where the law of solicitor-client privilege imposes a similar duty of confidentiality on lawyers not to disclose the legal advice given to their clients, or when some other legal duty such as Crown privilege is at stake, the proper attitude of government officials cannot be that they are instantly relieved of their legal duties when they are called to appear before a parliamentary committee. To assume otherwise would undermine the constitutional principles of parliamentary sovereignty and the rule of law, and would make parliamentary committees a law unto themselves.
This House has a long tradition of respecting the claims of confidentiality asserted by government officials. As the former Law Clerk and Parliamentary Counsel to this House, Joseph Maingot, Q.C., has written in Parliamentary Privilege in Canada, “[w]ith respect to federal public servants who are witnesses before committees of either House, the theory of the compellability of witnesses may come into conflict with the principle of ministerial responsibility. By convention, a parliamentary committee will respect Crown privilege when invoked, at least in relation to matters of national and public security.”
There is nothing in the letter of the Assistant Deputy Minister that can be seen as an attempt to intimidate government witnesses. It is well understood that all witnesses who testify before parliamentary committees are immune from legal and disciplinary proceedings in respect of their testimony, and this is expressly acknowledged in the letter. Moreover, it is the long-standing policy of the government that officials should be as forthcoming as possible before parliamentary committees. The letter explains why those committees should not be pressuring witnesses to breach legal and statutory duties by which witnesses sometimes feel bound.
It is true that statutes such as the Privacy Act and the Income Tax Act do not apply (at least not expressly) to parliamentary committees. It is equally true, however, that they do apply to government institutions and officials. As the letter of December 9, 2009, states, “[f]aced with an apparent refusal to provide information, the appropriate recourse for a parliamentary committee is to report the matter to the House for its consideration.” If a statute needs clarification, and if public servants are to be relieved of their legal duties in respect of values such as privacy and confidentiality, then it is open to the Parliament of Canada to amend the Act accordingly. It is not open to a parliamentary committee to do so.
Finally, there is nothing in the letter of the Assistant Deputy Minister that would give rise to a reasonable inference that, as Mr. Walsh put it in his reply of December 10th, a government official might be “prosecuted or disciplined for making any disclosure in their testimony before a committee” and that thus the letter “may be seen as an indirect attempt to intimidate” government officials and thereby to “interfere with the proceedings” of a parliamentary committee.
First, it is well understood and confirmed in the jurisprudence of the courts that officials, like other witnesses who testify before parliamentary committees, are immune from legal and disciplinary proceedings in respect of their testimony. Secondly, it is the long-standing policy of the government that officials should be as transparent and forthcoming as possible before parliamentary committees. There is nothing in the principled views expressed by the Assistant Deputy Minister of the application of Acts of Parliament and other legal duties to government officials that could possibly give rise to the types of imputations and hypotheses made by the Member opposite.
I recognize, Mr. Speaker, that there are precedents where a prima facie breach of privilege has been found where a witness was threatened with legal proceedings as a result of his or her testimony before a committee. However, that is not the case here.
The letter from the Department of Justice was addressed to the Law Clerk – not to any particular witness. The letter did not concern a specific committee or a specific witness.
More importantly, nowhere does the letter threaten statutory or civil sanctions against a real or hypothetical witness. To the contrary, as I’ve pointed out, the letter recognizes that witnesses are protected by parliamentary privilege when appearing before a committee; the letter states “a parliamentary committee through the exercise of parliamentary privilege may extend immunity to witnesses appearing before it.”
The letter does state that a parliamentary committee cannot “absolve” officials from their legal duties. As I am sure you will agree, Mr. Speaker, being absolved from a legal duty and being immune from prosecution for breach of that duty are two very different things.
I can state unequivocally that it is not and has never been, even remotely, the intention of the Department of Justice or any of its officials to pressure or intimidate government witnesses before parliamentary committees.
As I have noted, my Department has great respect for the work of parliamentary committees and for the role of this House. At the same time, the principles underpinning our constitutional system of parliamentary democracy commend respect for the work of the Department of Justice and the role of the law officers of the Crown in supporting the executive branch. Legal opinions and perspectives can differ amongst legal advisers without the House intervening in this extraordinary and unprecedented manner.
Mr. Speaker, I trust this explanation of the legal position of the Department of Justice as set out in the letter of the Assistant Deputy Minister will satisfy the concerns of members of this House.
Fundamentally, suggesting that the December 9, 2009, letter is a breach of our privileges would be inconsistent with the values and principles of a free and democratic society which encourages the free exchange of views and ideas. Disagreements ought to be resolved through debate, not through the powers of the House.
Mr. Speaker, to conclude on this point: in order for there to be a valid question of privilege, there must be evidence that the House and its members have been impeded in carrying out their parliamentary duties.
With respect to the statement by the Minister of National Defence and the letter from the Department of Justice, the Member for Scarborough—Rouge River has provided no evidence at all that any witnesses were intimidated or did not appear before the Special Committee on the Canadian Mission in Afghanistan. In no way was the work of the committee impeded by this statement or by the letter. It is patently unreasonable to impute such intentions to a senior law officer of the Crown, the Department of Justice, or a Minister of the Crown. The Minister of National Defence and the Department of Justice were simply reiterating long-held views of the Government of Canada, which are consistent with parliamentary practice.
I would submit, Mr. Speaker, that the matters raised by the Member for Scarborough—Rouge River are matters of debate. They are not questions of privilege.
I would encourage members of this House to resolve disagreements through debate and the free exchange of ideas, and not to abuse the powers accorded to the House in the name of parliamentary privilege.
As you know, Mr. Iacobucci was appointed as an independent and impartial adviser. He has significant expertise and experience in this area and will provide our Government with valuable advice for fulfilling our responsibilities to parliamentarians and Canadians.
In the meantime, we will continue to provide all legally available documents.
Mr. Speaker, I would like to now reply to the questions raised by the Member for St. John’s East and the Member for Saint-Jean regarding the order of the House for the production of documents on December 10, 2009.
I will focus my comments on two aspects of the questions raised by the honourable Members.
First, I will explain why no prima facie breach of privilege has been made out in this case, noting that the Government has taken steps to respond to the December House order in a responsible manner; and
Second, I submit that the question raised is primarily one of debate rather than one of privilege.
I will address these issues in turn.
Turning to the first point, Mr. Speaker, on December 10, 2009, a majority of this House voted in favour of the public disclosure of a very large number of documents that contain sensitive and confidential information. It did so despite repeated warnings from the government that disclosure of this information would harm Canada’s national security, international relations and national defence.
In order for there to be a valid question of privilege, there must be evidence that the House and its members have been impeded in carrying out their parliamentary duties. I would argue that – to the contrary – the Government has made attempts to facilitate the work of members in holding the Government to account.
The Government of Canada has great respect for the work of the House of Commons and its committees.
The Government wishes to provide members with the information that is necessary for them to perform their duty of holding the Government to account.
Ministers and public servants will always strive to provide parliamentarians with information in a full and transparent manner.
But we must balance this obligation with our fundamental duty to protect information for reasons of national security, national defence, and foreign relations.
This has been our approach in relation to the issue of the transfer of Afghan detainees.
As you will recall, Mr. Speaker:
§ 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; and
§ the order made no reference to confidential information being protected, or that the Security of Information Act or other laws would be respected.
In light of this, I would like to take this opportunity to note the following facts for your information, Mr. Speaker, and for the information of the House.
First, the categories of documents listed in the order include tens of thousands of pages related to the transfer of Afghan prisoners.
Second, it is the firm position of the Government of Canada that the public disclosure of military and other secrets would be injurious to Canada’s international relations, national defence and national security interests if released. The December motion indicated no means for safeguarding this information, which is the responsibility of the Government of Canada to protect.
In the Member for St. John’s East’s submissions of March 18, he seemed to share our concerns, in which case the idea of a prima facie case is simply not made out. He stated, and I quote:
“We recognize that the government cannot, and should not, be expected to dump hundreds or thousands of pages of unredacted documents on the Table of the House of Commons, but that is not what the House has asked for. It has demanded its constitutional right for a procedure to hold the government accountable for its actions.”
As I just noted, however, the terms of the House order was simply to release the documents and it did not specify any safeguards at all.
Moreover, Mr. Speaker, the Government has given the Member exactly what he asked for in terms of a “procedure to hold the government accountable for its actions.”
On March 5, I announced the appointment of the Honourable Frank Iacobucci to review the documents in question and thereby to assist the opposition parties in holding the government to account. Mr. Iacobucci was appointed by the Governor in Council on the recommendation of the Prime Minister.
Mr. Iacobucci has significant expertise and experience, which make him particularly well-qualified to undertake this review. He is a former Justice of the Supreme Court of Canada, and he recently served as Commissioner in an internal inquiry that dealt with matters of national security.
The Government took this step to develop a reasonable response, given the serious interests at stake.
The order of December 10 did not require us to do this since that order provided no protections for sensitive information. The Government took this step to offer a very reasonable compromise between the complex and serious interests at stake.
On the one hand, as the Member has acknowledged, the Government cannot be expected to compromise Canada’s national security interests. On the other, we want to provide as much information as we responsibly can to assist parliamentarians in their duties. Mr. Iacobucci will review the documents and make an objective, independent assessment as to what he believes must be protected and what can be released in this context.
Mr. Iacobucci was appointed by a formal act of the Government, through an Order in Council. That legal instrument provides that he will review all relevant documents and that his work is “to be completed expeditiously.” Mr. Iacobucci will make recommendations to me. He will also prepare a report summarizing his methodology and general findings. I will make this report available to members of this House and to the public.
The Member in his remarks accuses the Government of using “national security as an excuse to hide embarrassing information”. In fact, Mr. Iacobucci’s review will not only assure parliamentarians that only legitimate national security, defence and international relations information is protected, but it goes further.
His terms of reference permit him to, and I quote:
“make recommendations as to whether any injurious information or a summary of it should be disclosed on the basis that the public interest in disclosure, including for the purpose of providing parliamentarians with Government information necessary to hold the Government to account on the matter of the transfer of Afghan detainees, outweighs the public interest in non-disclosure for the purpose of preventing injury to Canada’s international relations, national defence or national security, after considering the form of and conditions to disclosure that are most likely to limit any injury to international relations, national defence or national security.”
Therefore, Mr. Iacobucci’s terms of reference allow him to ensure that the House is provided with all of the information it needs, including the information that is necessary to hold the Government to account. He will identify information that may be disclosed without causing harm to important interests such as international relations and national defence. Even if disclosing some of the information may cause harm, Mr. Iacobucci may still recommend that it be disclosed in the public interest. Finally, Mr. Iacobucci may recommend disclosure of a summary of confidential information, or suggest that certain conditions be imposed on disclosure to minimize the risk of harm.
Mr. Speaker, the Members opposite should let Mr. Iacobucci do his work. It is in the interests of Canada and the interests of parliamentarians that he has the opportunity to do so.
What is more, Mr. Speaker, our Government has consistently tried to facilitate the work of the Special Committee on the Mission in Afghanistan.
We proposed that the Special Committee be re-established in this session at the earliest opportunity. Working with the opposition, the committee was thus appointed on the very first day of this session of Parliament.
In the last session, Ministers, high-ranking military officers and senior officials appeared before the committee to fully account for the Canadian mission in Afghanistan.
We have provided to the committee the information requested in the order where this was consistent with our duty to protect the security of the nation and the public interest.
And, as I have mentioned, Mr. Speaker, we have also appointed Mr. Iacobucci to review the documents to assure members can be confident that members will receive as much information as possible.
In this context, Mr. Speaker, the question of privilege raised by the Members is, at the very least, premature and should be dismissed on that basis.
Moreover, it is insufficient to ground a case for a prima facie question of privilege in these circumstances. In 1961, Speaker Michener made the following comment about the production of papers on February 27, 1961, when he stated, and I quote:
“there has been a well recognized practice established in the House that a Minister, who does not wish to be bound by an unqualified Order of the House to produce documents which he does not propose to produce or does not wish to produce for some recognized reason a public policy, may rise and state his objection so that this objection will be a matter of record. This statement is, to some extent, a protection of the Minister against the unqualified Order of the House calling upon him to produce the documents mentioned.”
You will recall, Mr. Speaker, that during the debate on the December 10th order, multiple Ministers rose in their place to object to the production of confidential information on the grounds of injury to Canada’s national security interests. It should not now be considered a breach of the House order to not produce that information.
As recently as June 8, 2006, Mr. Speaker, you ruled that national security, when asserted by a minister, was sufficient to set aside the usual requirement to table documents cited in debate and that the Speaker has no role in assessing the documents for that purpose.
This ruling was based on the ruling of the Deputy Speaker on November 2, 1983, which held that a Minister could refuse to table a document cited in debate where it was not in the public interest. In that case, the public interest was the confidentiality of international diplomatic communications.
These rulings underscore, Mr. Speaker, the principle that some information simply cannot be laid on the table because it must be protected by the Government.
There are good reasons why parliamentary practice has recognized that there are certain types of information that would be unwise to be disclosed to the House. The fundamental issue at stake was captured as follows by Professor C. E. S. Franks, of Queen’s University, in a 1979 study on Parliament and security matters, and I quote:
“In dealing with matters that must legitimately be kept secret for reasons of state, there is a dilemma in establishing a system of control. At some point secrecy must end and publicity begin, and at this juncture there must inevitably be a gap in knowledge and power ‘to send for persons, papers and records’ between the controllers and the controlled. If Parliament shares the secret knowledge, then the press and public must accept Parliament’s viewpoint on trust; if Parliament is not privy to the secrets, then Parliament must accept some other person’s conclusions on trust. There is little evidence in Canada that either Parliament or the public would accept Parliament as part of the inner circle of control, privy to the secrets of state.”
Even more recently, Mr. Speaker, renown legal scholar, Professor Patrick Monahan of Osgoode Hall Law School, expressed these same concerns and reservations.I quote:
“…Let’s take the issue around no one’s suggesting that we’re going to reveal confidential sources of information. It comes to this, if I’m a foreign government and I say I want absolute assurance that this information will not be made public and they say we assure that but they say actually if a group of MPs decides to vote to release that information there is a chance it could be made public, so the point will be you won’t get the information, right? We won’t have that information.
So, again, you do have to understand if the government of Canada is put in a position on foreign affairs and national security issues where it isn’t able to give those kinds of assurances because someone has passed a statute that says now, members of Parliament, if they decide that it’s going to be a political interest, can get that information, it is going to affect our ability to deal as a sovereign nation and deal with some of these issues around national security.”
I would ask you, Mr. Speaker, and all members of the House, to recognize the obligations of the Government to protect our national interests, consistent with the traditions and practices of this place. Joseph Maingot recognizes this in his text on parliamentary privilege where he states: “By convention, a parliamentary committee will respect Crown privilege when invoked, at least in relation to matters of national and public security.”
It is worth noting that a 1999 report from a UK Joint Committee on Parliamentary Privilege sought to define examples of what would appropriately be considered contempt of the House. In relation to an order to produce papers, it stated that “without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee” could be considered contempt. I would emphasize the expression “without reasonable excuse”. As the Government has valid claims under Crown privilege to protect the public interest, I would submit that the Government has a “reasonable excuse” in this matter.
Mr. Speaker, the Government of Canada is meeting its constitutional and legal obligations to this House and to the people of Canada in a reasonable and responsible manner.
Complying with the bare terms of order would seriously put at risk our relations with other countries and our activities on the ground in Afghanistan. As a responsible government, we cannot put these matters at risk.
However, we have given parliamentarians as much of the information that they have requested as is consistent with our duties as a responsible government.
In addition, Mr. Speaker, we appointed Mr. Iacobucci, an eminent jurist, to review the documents at issue in this motion. By virtue of this review, parliamentarians and Canadians can be assured that they are receiving as much information as is in the public interest while also minimizing injury to Canada’s national defence, national security and international relations.
On March 18, Mr. Speaker, you stated that you had advised Members that we should wait and, I quote, “see what happens with the inquiry that Mr. Iacobucci is carrying out.” I believe that this is wise advice that should apply in relation to these questions of privilege.
Turning to the second and more fundamental problem with the question before you, Mr. Speaker, I would argue that finding a breach of privilege on this matter would be an unprecedented extension of the House’s privileges.
There are diverging views on whether the House and its committees have an absolute and unfettered power to be provided with any and all documents they order from the executive branch and within Crown prerogative.
It is true that the House of Commons has significant powers and privileges that are necessary to support its independence and autonomy.
However, the Crown and the executive branch is also entrusted with powers and privileges, as well as responsibilities, for protecting the public interest, implementing the laws of Canada and defending the security of the nation.
In particular, as the Government of Canada has an obligation to protect certain information for reasons of national security, national defence, and foreign relations. Crown privilege, as part of the common law, recognizes that the Government has a duty to protect these and other public interests.
While the Member opposite may wish to invoke the idea of parliamentary supremacy to support his point, it must be remembered that the Crown is as much a constituent part of Parliament as is the House of Commons and the Senate. These parts together can act to define the powers of each through statute but the House alone cannot make law nor extend the scope of its privileges.
The Government wishes to provide members with the information that is necessary for them to perform their duty of holding the Government to account. The Government of Canada has great respect for the work of the House of Commons and its committees. Ministers and public servants will always strive to provide parliamentarians with information in a full and transparent manner. But we must balance this obligation with our fundamental duty to protect information for reasons of national security, national defence, and foreign relations.
This has been a consistent approach by successive governments.
As you know, Mr. Speaker, in 1973 the Government of the day tabled Guidelines for the Production of Papers that established the Government’s policy of disclosure, subject to specific exceptions for reasons of public policy. This document heralded a shift from secrecy to the principle of openness, balanced always with the Government’s duty to protect the public interest.
The Honourable Allan MacEachen, then President of the Privy Council made the point when he tabled the Guidelines on March 15, 1973, in the House of Commons:
“We believe that Members of Parliament require factual information about the operations of government in order that they may carry out their parliamentary duties…We are also aware that the desire to make available as much information as possible must be balanced against effective public administration, protection of the security of the state and rights to privacy.”
This approach is also reflected in the Guidelines themselves, which state that the general principle is to, and I quote: “enable Members of Parliament to secure factual information about the operations of government to carry out their parliamentary duties and to make public as much factual information as possible consistent with effective administration, the protection of the security of the state, rights to privacy and other such matters…”
As you know, Mr. Speaker, the 1973 Guidelines established 16 specific exemptions to the disclosure of government papers or documents.
As O’Brien and Bosc note on page 473: “Although not formally approved by the House, these principles have been followed since then.”
This approach has been followed in the House ever since.
I would remind the House that parliamentary privilege in Canada is not unlimited, but is defined by the privileges, powers and immunities that were held and exercised by the United Kingdom House of Commons in 1867. This is explicit in section 18 of the Constitution Act, 1867, and section 4 of the Parliament of Canada Act.
It was understood at the time that powers of the House and its committees to order the production of papers should be limited where confidential information in the hands of the Government is at issue.
In 1887, Alpheus Todd, the former librarian of Parliament, explained the principle as follows in his treatise on parliamentary government:
“Considerations of public policy, and 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. This principle is systematically recognised in all parliamentary transactions; were it otherwise, it would be impossible to carry on the government with safety and honour…”
Bourinot, in 1884, observed that, in providing returns to orders as well as to addresses, it is not usual for the House to obtain certain information:
“Whilst members have every facility afforded them to obtain all the information they require on matters of public concern, occasions may arise when the government will feel constrained to refuse certain papers on the ground that their production would be inconvenient or injurious to the public interest.”
The fact that there are practical limits on the powers of the House has been recognized by the House through the resolution adopted on March 13, 2008, concerning the Canadian mission in Afghanistan as well as in the special orders creating the Special Committee on the Canadian Mission in Afghanistan on February 10, 2009, and on March 3, 2010.
These motions all state that the Special Committee on the Canadian Mission in Afghanistan should, and I quote: “review the laws and procedures governing the use of operational and national security exceptions for the withholding of information from Parliament, the Courts and the Canadian people with those responsible for administering those laws and procedures, to ensure that Canadians are being provided with ample information on the conduct and progress of the mission.”
By adopting these motions, the House has on three recent occasions recognized that there are, and I quote, “laws and procedures governing the use of operational and national security exceptions for the withholding of information from Parliament.”
We have here a case where the Government must balance two competing obligations – to provide information to the House where requested and at the same time respect our obligations to protect the public interest. While both obligations are valid, to respect one obligation we would potentially be in violation of another obligation.
Former Prime Minister Trudeau, on June 26, 1969, made the same point in this place when he stated, and I quote:
“There will of course always be matters which governments must keep privy to themselves in order that the public interest may be best served, even in the freest and most open of societies. As the commissioners [of the Royal Commission on Security] have stated…: ‘the duty of the state to protect its secrets from espionage, its information from unauthorized disclosure, its institutions from subversion and its policies from clandestine influence is indisputable.”
I would submit, Mr. Speaker, that the matters raised by the three Members are matters of debate. They are not questions of privilege.
I would encourage members of this House to resolve disagreements through debate and the free exchange of ideas, and not to abuse the powers accorded to the House in the name of parliamentary privilege.
Mr. Speaker, I trust you will agree that such an approach would be consistent with the traditions of this place and values of this institution. I know you will consider the submissions that have been made on these important issues with care and judiciousness as you always do. I look forward to your ruling in this sensitive matter.
Thank you.
