The Committee wishes to highlight the fact that throughout this study, it has faced challenges related to the appearance of witnesses and the procurement of documents. While appearances before Committees are normally done through invitations, which witnesses accept voluntarily, some witnesses only appeared before Committee after threats of summons in this case.  In addition, the Committee is of the view that some of the witnesses’ responses to requests for documents or written answers to questions were incomplete. Despite all the documents and written responses received, the Committee believes it is still left with many questions.

The sections below address the non-appearance of ministerial staff before Committee following a motion adopted in the House of Commons.

A.  Motion of 25 March 2021

On 25 March 2021, the House of Commons adopted the following motion:

• That, with a view to support the authority of committees in their important inquiries of public interest:
• (a) regarding the study on questions of conflict of interest and lobbying in relation to pandemic spending by the Standing Committee on Access to Information, Privacy and Ethics,
  • (i) an order of the House do issue for due diligence reports, in the care, custody or control of the Privy Council Office, respecting the Canada Student Service Grant, and that these documents be deposited, in both official languages, with the Clerk of the Committee no later than Thursday, April 1, 2021,
  • (ii) Rick Theis, the Prime Minister's Director of Policy and Cabinet Affairs, be ordered to appear before the committee on Monday, March 29, 2021, at 2:00 p.m.,
  • (iii) Amitpal Singh, the Deputy Prime Minister's Policy Advisor, be ordered to appear before the committee on Wednesday, March 31, 2021, at 2:00 p.m.,
  • (iv) Ben Chin, the Prime Minister's Senior Advisor, be ordered to appear before the committee on Thursday, April 8, 2021, at 2:00 p.m.;
• […]
• (c) should the Prime Minister instead appear before the committees mentioned in paragraphs (a) and (b), at any of the dates and times mentioned, for at least three hours, the witness otherwise scheduled to appear, and any other witnesses scheduled to appear before the same committee at a later time, be relieved of their obligation to appear pursuant to this order; and
• (d) it be an instruction to the Chairs of the committees mentioned in paragraphs (a) and (b) to convene televised meetings of their respective committee, at the dates and times mentioned, for at least three hours, for the purpose of receiving evidence from the individuals then ordered to appear or the Prime Minister, as the case may be, unless the individual has been relieved from attending under the provisions of paragraph (c), provided that the witnesses be required to appear until discharged by the committee.[1]

B.  Advice from the Law Clerk and Parliamentary Counsel of the House of Commons

Noting the absence of these witnesses, and notwithstanding an appearance by Minister Rodriguez and a letter expressing Minister Fortier’s intention to appear, the Committee heard from Philippe Dufresne, Law Clerk and Parliamentary Counsel of the House of Commons on the topic of orders of the House and potential actions by the Committee. In response to members’ questions, Mr. Dufresne explained that a similar situation occurred in 2010, when a parliamentary committee ordered political staff to appear. At that time, ministers appeared instead of political staff, based on the argument that ministers were the appropriate witnesses to respond to the committee based on the principles of responsible government. However, he noted that that instance was based on an order from the committee and not from the House of Commons.[2]

Nevertheless, Mr. Dufresne stated that political staff and public servants have no immunity, by virtue of their positions, from requests to testify before parliamentary committees.[3] He also suggested that the topics of discussion and the different roles that ministers and political staff play have been factors for deciding which person is the more appropriate witness to testify on a given topic.[4]

Mr. Dufresne argued that because the House of Commons ordered the witnesses to appear, only the House of Commons has the power to absolve a witness from that order.[5] He thus urged further dialogue on this issue.[6] He added that “there is very strong encouragement to the House and committees to consider public policy imperatives when exercising those powers.”[7]

C.  Motion of 3 May 2021

During Meeting 32, the Committee adopted the following motion:

• Pursuant to the motion adopted by the House of Commons on Thursday, March 25, 2021:
• 1. The Standing Committee on Access to Information, Privacy and Ethics met on:
  • a. March 29, 2021, at 2 p.m. to hear witness Rick Theis;
  • b. March 31, 2021, at 2 p.m. to hear witness Amitpal Singh; and
  • c. April 8, 2021, at 2 p.m. to hear witness Ben Chin.
• 2. The Committee noted the absence of these witnesses, who had been called to appear before the Committee pursuant to the order in the motion adopted by the House on March 25, 2021;
• 3. The Committee confirms that it has not released these witnesses from their obligation to appear;
• 4. The Committee also noted the absence of the Prime Minister, who was given the option of appearing in place of these witnesses in the motion of March 25, 2021;
• 5. Minister Pablo Rodriguez appeared on March 29, 2021, instead of Rick Theis who followed the government instructions that staff are not to appear before committees which were outlined during the debate in the House on March 25, 2021; [and]
• 6. that Minister Mona Fortier also requested to appear on March 31 and April 8, 2021 on behalf of witnesses Amitpal Singh and Ben Chin who followed the government instructions that staff are not to appear before committees which were outlined during the debate in the House on March 25, 2021;
• That the non attendance of witnesses be added to an annex to the main report on the study of Questions of Conflict of Interest and Lobbying in Relation to Pandemic Spending.[8]