Background / Precedent Privilege Matter Item 9A

17762 COMMONS DEBATES February 28, 1991

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PRIVILEGE

STANDING COMMITTEE ON JUSTICE AND THE SOLICITOR GENERAL

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

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

I want first to refer the Chair - and I am sure I have no need to do it in detail - to precisely
what 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 many
times and cited. I would just refer to two parts of it: that is that the privilege is the sum of the
peculiar rights enjoyed by each House collectively as a constituent part of the High Court of
Parliament, 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 the
current document called Privilege in the Modern Context published by the House.

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

The particular right breached is the right to obtain information through committee orders. I
note 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 of
privilege-

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

• (1240)

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

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

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

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

My obligation here is to show you a prima facie case that the right and privilege has been
breached. The standard I must achieve is not that of beyond a balance of probability, nor is it
beyond a reasonable doubt, it is simply a prima 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 the
Edmonton Institution escaped. Following that, the Commissioner of Corrections commissioned a
report pursuant to section 14 of the Penitentiaries Act. In December 1989, the report was
tendered to the Corrections Commissioner and the report was made public. However, there were
portions of the report deleted. There were deletions of pages and paragraphs and two of the
conclusions and recommendations in that report were deleted.

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

In our request for these documents, the committee was unsuccessful. On December 4, in the
face of the refusal or inability of the Solicitor General to provide the requested unexpurgated
version, the committee formally ordered that the Solicitor General provide this report. I believe I
should 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 the
uncensored version of the reports to Correctional Service Canada by one, Mr. Weir, governing the escape of
Daniel Gingras in the province of Alberta and, two, by the Board of Investigations concerning an offender
(Allan Légère) 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.

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I have with me, and it may be appropriate to table, the written reply of the Solicitor General
to the order of the committee. He states that he has carefully reviewed the motion and the request
for copies in each case without deletions. He recites a section of the Privacy Act and states:

With regret, I must conclude that the public interest does not outweigh the invasion of privacy which would
result from a release of the unedited copies of these reports.

In the case of both reports the conclusions, the reasons, and most of the supporting testimony
have already been made public.

Mr. Speaker: I ask the courtesy of the hon. member to let me intervene for a moment on
another matter.

I would like to make it very clear that in the mind of the Chair, we are in Government
Orders. That will have some consequences, perhaps, at one o'clock and I just want to make that
very clear to the House. Would the hon. member please continue.

Mr. Lee: Mr. Speaker, following that reply of the Solicitor General the committee reported
to the House of Commons with the seventh report of the committee.

I wish to match those facts with the law stated earlier. In the face of that clear order of the
committee which was properly and effectively delivered to the Solicitor General, and in the face
of clearly defined rights and privileges of the House, often referred to as the undoubted rights
and privileges, the Solicitor General has declined to comply with that order, contrary to the will
and wishes of that committee.

Now the Solicitor General has stated that he is prevented from complying because of
provisions of the Privacy Act.

The House has therefore been blocked in the completing and the carrying out of its work. We
in the committee, collectively and individually, are being denied the information we need as
legislators to do our job.

The matter has been discussed with the Privacy Commissioner and I feel that the Privacy
Commissioner as he then was, Mr. John Grace, should be noted here because he has commented
and on May 24, 1990, a very short quote in a reply to a question from our colleague, Mr.
Rideout, Mr. Grace says: "And if a legislator cannot see it, my goodness, who is seeing it?"

That is cited from the minutes of the justice and solicitor general committee on May 24,
1990.

I will not review the provisions of the Privacy Act. I do not believe they are necessary to the
making of the case here, but I will refer to one thing and that is this: Although I am of the firm
view that the Privacy Act does not derogate from the rights and privileges of Parliament, some
may argue that it does. I have heard the argument and I believe, although I will not attempt to
characterize what the Solicitor General's view is on this, that he is attempting to confront the
issue reasonably. In any event if someone were to suggest that the Privacy Act did, I want to
point out to you, Mr. Speaker, that the Privacy Act does not mention Parliament in any of its

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

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

• (1250)

I want to refer you, Mr. Speaker, to the element I raised earlier in the definition of privilege
and the section which states that privilege, though part of the law of the land, is to a certain
extent an exemption from the ordinary law. I commend to you that concept in viewing the effect
of 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 was
unanimous in its order and there have been a number of discussions between members on this
side and members opposite in connection with this. All parties have participated in good faith in
those discussions.

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

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

If the committees, as now structured, do fail in their ability to obtain information in the
manner that has transpired here, then the committees will fail in doing their work. If the justice
committee 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 obligations
of members of the government-that would be ministers in this House, or let us simply speak of
the executive branch of government-if it is a conflict between the rights and privileges of
Parliament and the executive branch of government then you, respectfully, Mr. Speaker, have a
duty-and I know you understand this-to uphold the rights, privileges and powers of Parliament in
the 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 allow
24 hours, a day, that would permit me and others, including the chair of the justice committee to
consult with the House leaders, the committee chairs, and the Solicitor General in constructing a
motion that would serve the needs of Parliament and all of the members of the House.

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Mr. Speaker, unless you wish me to, I will not address the conceptual issue of the difference
between a procedural motion for concurrence and the privilege claim that I make here today. If
you 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 of
the 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 this
matter is being brought to me after a great deal of co-operative discussion among many
members.

I accept very much the invitation of the hon. member to get into a further stage of the
discussion. However, if I am reading correctly the hon. member's remarks, it is not necessary at
this time. I would ask the hon. Member perhaps to conclude and I will then hear the
parliamentary 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 the
sake of the 30 seconds it might take, I think I will address that. There was some thought among
members and staff here –

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

Mr. Lee: Well then, I will pass on that in the hope that if further argument is required, I will
have 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 members
of this House: a right to obtain information, a right to require production of papers. The right to
require that, to achieve that objective, has been breached by the failure of the Solicitor General of
Canada 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 I
will just note it very quickly: "That when any of these rights and immunities is disregarded or
attacked the offence is called a breach of privilege and it punishable-" et cetera. We are not into
punishment 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 is
unrectified 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 of
every member on that committee. That has been breached and the House must deal with that
breach.

17767 COMMONS DEBATES February 28, 1991

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

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

• (1310)

It surprised me that the hon. parliamentary secretary argued that the question of the propriety
of the minister delivering the report was an issue. It seems to me that the committees of this
House and the House itself have certain powers of a court and courts clearly have jurisdiction in
respect to the Privacy Act to receive documents that may be otherwise protected under that act
and 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, a
statute passed by this House that created this act. Parliament has the residual powers of a court
for certain purposes. It has power to examine witnesses and call for production of papers and
those powers have been an inherent jurisdiction of this House and of its committees from time
immemorial. It is one of the privileges of the House to be able to exercise that jurisdiction, in
effect the jurisdiction of a court.

The committees of the House are creatures of the House and have similar powers, and I am
surprised 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 that
the issue of the propriety of the minister complying with the committee’s request be referred to
another committee.

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

If he would like the issue studied, it could be studied there or by the committee that has
already done so much work on this issue in dealing with this matter, and I am happy to support
that 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 the
release to a parliamentary committee.

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

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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 inherent
jurisdiction of a Superior Court and determine whether that jurisdiction exists. I think it follows
that this document should be produced.

Mr. Speaker: I began by complimenting the hon. member for Scarborough- Rouge River
and thanked the parliamentary secretary for his thoughtful contribution. I extend the same
compliments to the hon. member for Edmonton East and the hon. member for Kingston and the
Islands.

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

It would seem that this might be an appropriate way to resolve this without putting the
Speaker in a position where I have to rule on what is clearly a very difficult case. If I were to
decide 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 a
prima 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 to
put it in front of that committee that we allow it to go there. In a moment I am going to ask the
House if the House will agree to that.

17771 COMMONS DEBATES February 28, 1991

Mr. Speaker: It is not often that the House gets so close to making up its mind about
something and then lets it slip away. I do not know whether to call on the hon. parliamentary
secretary, 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 put
this in a committee of this place, which is exactly where it would go if I were to rule that there
was 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 are
apparently contradictory between a law that has been passed by this House and the ancient laws
and traditions of this place. Sooner or later somebody is going to have to look at this. We have
right 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 lot
of sense and would be a very great help to the Speaker, because what comes out of that
committee 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 of
Commons): Mr. Speaker, I came in late on the debate, but I just wanted to offer any assurances
to the hon. member who raised this point of privilege that this is viewed, in the government’s

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perspective, as a genuine dilemma for which guidance and so on is sought and on which we need
to 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 the
nature 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 be
forced 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, you
certainly have my assurances in regard to that whatever order of the House is necessary to carry
this on through any prorogation and to pick it up after prorogation. You have my assurances of
full co-operation in that regard. There is no attempt here to put it aside or into a closet, but rather
some attempt to address this fundamental problem that the Solicitor General has at this time. One
does not have to be too imaginative to hypothesize many of these kinds of dilemmas. If we can
make progress and resolve it, I think we are serving the interests of the House. I give my
assurance 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 well
debated following the splendid lead of the hon. member for Scarborough - Rouge River, but very
fully debated.

Perhaps I can say this. I have been a member of this House since 1972. I have never seen a
very serious issue so close to being resolved by agreement as I see it in front of me now. That
does not mean that what comes out of the committee will necessarily satisfy everybody, but what
it does mean is that we have a committee of this House dealing with what is essentially an
extraordinarily difficult issue and an issue which, by the way, was not even dreamed about
several 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 again
that I thank very much the hon. member for Scarborough-Rouge River for not only the excellent
position that he took, the excellent address, but the manner in which he brought this matter to the
House. I extend that compliment to all members who have taken part in this. This is one of the
better 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: Queen’s Printer for Canada, 2009.

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