:
Madam Speaker, I am rising on a question of privilege.
Today, the Standing Committee on Access to Information, Privacy and Ethics tabled its second report. Following the notice I gave you earlier today once that report was tabled, I would like to present you, Madam Speaker, with this question of privilege.
The second report represents the culmination of the ethics committee’s study of the Liberal government’s ethical messes, created under the guise of helping Canadians during the COVID-19 pandemic, all amounting to a pattern of corrupt behaviour. I will set that aside for a moment.
It also presents the House with what I believe are several contempts and breaches of privilege. I should thank the Chair in advance for the indulgence in hearing my submission because regrettably the second report lays out no fewer than seven matters of privilege. Thankfully though, several of them can be grouped together under common themes, which should help us move through some of those points more efficiently.
For everyone's benefit, and in my view, there are three breaches concerning the failure of witnesses to appear before the ethics committee as ordered by this House on March 25. Then there are a further three breaches concerning the government's instruction to those witnesses to defy an order of the House. Finally, there is a matter of misleading or interfering with the evidence provided to committees by the .
Let me start with the witnesses' failure to appear. On March 25, the House of Commons ordered, as recorded at pages 699 and 700 of the Journals, the following:
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.
It continues:
(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.
Further down, it states:
(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.
This mode of proceeding whereby the House adopts an order in aid of committee proceedings might be unusual, it is not irregular. Australia's Odgers' Australian Senate Practice, 14th edition, for example, notes at page 51, “The Senate may order particular witnesses to appear before committees. The Senate may also order documents to be produced to committees.”
In any event, appendix A of the second report informs us that the committee agreed to report to the House through that appendix that each of the three witnesses were absent at the appointed times. Furthermore, appendix A confirms that the did not appear on behalf of the three witnesses as the House permitted in its order.
It is well known that a question of privilege must be raised at the earliest opportunity. Given that the March 25 decision of the House makes a hybrid creation of a House order an exclusive aid of a committee proceeding, it raises the question as to the correct venue for bringing forward a complaint concerning any breach.
Our procedural authorities suggest that when committees are involved, the matter must first come to the House through a committee report. Pages 152 and 153 of Marc Bosc and André Gagnon's House of Commons Procedure and Practice, third edition, confirms. It states, “Speakers have consistently ruled that, except in the most extreme situations, they will hear questions of privilege arising from committee proceedings only upon presentation of a report from the committee which deals directly with the matter and not as a question of privilege raised by an individual Member.”
On April 12, that is to say on the first day the House sat following the absence of the witnesses, the law clerk and parliamentary counsel was a witness at the ethics committee, and I asked him for his advice in this exchange.
At page 22 of the evidence, I asked:
In this specific case, sir, of an order of the House being issued for persons to appear at committee and documents to be presented or delivered to committee, what process needs to be followed? Does it first need to be referred by the committee chair to the House, or as it is an order of the House, can the issue simply be raised by a member to the Speaker directly?
The law clerk replied:
Normally, the Speakers have indicated in rulings that, if a matter relates to a committee and to information to be provided to a committee, it would generally be the practice to wait for the committee to first address it, giving the opportunity to the committee to determine it is satisfied.
On the basis of the advice I received, I awaited completion of the ethics committee's work before raising this matter on the floor of the House of Commons, as I am doing right now.
Before moving along, there is one further timing aspect I should speak to since I anticipate the Liberals may address it when they answer these arguments. The committee agreed to request a response pursuant to Standing Order 109 from the government to the report. While Standing Order 109 bars motions for concurrence in the report until the response is tabled or 120 days have elapsed, whichever comes first, I would respectfully submit that this constitutes no barrier to a question of privilege.
Bosc and Gagnon are, for example, silent on the matter. Moreover, Standing Order 48(1) clearly directs “Whenever any matter of privilege arises, it shall be taken into consideration immediately.”
Page 81 of Bosc and Gagnon describes breaches of privilege and contempts of Parliament. It states:
Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a Member of the House, is referred to as a “breach of privilege” and is punishable by the House. There are, however, other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges. Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege: tends to obstruct or impede the House in the performance of its functions; ...or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands...
Bosc and Gagnon, on the very next page, favourably refers to the 1999 report of the United Kingdom Joint Committee on Parliamentary Privilege that attempted to set out various categories of known contempt. The eighth item in that list is “without reasonable excuse, failing to attend before the House or a committee after being summoned to do so.” It is followed by the tenth item “without reasonable excuse, disobeying a lawful order of the House or a committee.”
The point is made even more succinctly at paragraph 15.5 of Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 25th edition, which states “Witnesses who refuse to appear may commit a contempt.”
Paragraph 15.7 meanwhile states:
A particular rule which, if disobeyed, may give rise to proceedings for contempt is the refusal or neglect of a witness or other person to attend either House or a committee when summoned to do so.
These issues go to the heart of Parliament's privileges, a body of law which allows us to carry out duties and responsibilities on behalf of our constituents and whose origins are ancient and anchored in the Canadian Constitution.
Page 137 of Bosc and Gagnon observes the following:
By virtue of the preamble and section 18 of the Constitution Act, 1867, Parliament has the ability to institute its own inquiries, to require the attendance of witnesses and to order the production of documents, rights which are fundamental to its proper functioning. These rights are as old as Parliament itself...
Indeed, paragraph 234 of the 1999 U.K. report that I just mentioned notes, “At least since Elizabethan times committees have been examining matters where witnesses were required to appear.” To be clear, that is not referring to our present sovereign, but to Her Majesty's namesake who reigned as Queen of England from 1558 to 1603.
Derek Lee, a former Liberal member of the House, for his part, at page 6 of his 1999 book The Power of Parliamentary Houses to Send for Persons, Papers & Records, dates the origin of this power back to the reign of King Edward III, which spanned half of the 14th century.
Alpheus Todd, a former parliamentary librarian, wrote in his 1840 book The Practice and Privileges of the Two Houses of Parliament, at page 313, “It is an essential and undisputed privilege of both Houses of Parliament, which they possess in common with every other court, to summon Witnesses before them for examination upon any subject on which they may require information to guide them in their deliberations.”
The breadth of these powers rooted in our established role as grand inquest of the nation is described at page 190 of Joseph Maingot's Parliamentary Privilege in Canada, second edition, “The only limitations, which could only be self-imposed, would be that any inquiry should relate to a subject within the legislative competence of Parliament, particularly where witnesses and documents are required and the penal jurisdiction of Parliament is contemplated. This dovetails with the right of each House of Parliament to summon and compel the attendance of all persons within the limits of their jurisdictions.”
A moment ago, I referred to the principle that breaches of privilege at the committee level should first be reported from the committee. Bosc and Gagnon provides some examples of such reports, at page 153, which states:
Most matters which have been reported by committees have concerned the behaviour of Members, witnesses or the public, or the disregard of a committee order. Committees have reported to the House on the refusal of witnesses to appear when summoned; the refusal of witnesses to answer questions; the refusal of witnesses to provide papers or records; the refusal of individuals to obey orders of a committee; the divulging of events during an in camera meeting; the disclosure of draft reports; and witnesses lying to a committee. Committees could report on instances of contempt, such as behaviour showing disrespect for the authority or activities of a committee, the intimidation of members or witnesses, or witnesses refusing to be sworn in.
Maingot, at pages 239 and 240, outlines how Messrs. Theis, Singh and Chin's disregard of the March 25 order of the House amounts to contempt:
Disobedience to rules or orders represents an affront to the dignity of the House, and accordingly the House could take action, not simply for satisfaction but to ensure that the House of Commons is held in the respect necessary for its authority to be vindicated. Without proper respect, the House of Commons could not function. Thus, disobedience may well be considered contempt, bearing in mind that the House will, in mitigation of any punishment that may be imposed, be mindful of the surrounding circumstances.
Disobedience of rules or orders is an obvious contempt and would include refusing to attend at the Bar of the House after the House had so ordered, refusing to personally attend and to produce the documents requested by a committee (the formal contempt would only be recognized when the committee reported the incident to the House and the House took action)...
As I noted, the matter of a House order for a witness to attendance at a committee is not a common creature. Nonetheless, our House has experienced this disobedience to its orders for witnesses to appear in the House.
Pages 130 to 132 of Bosc and Gagnon recount some of these examples. The first two entries relevant to this question of privilege begin on page 130:
On March 31 and April 1, 1874, Louis Riel (Provencher) was ordered to attend in his place in the House for having fled from justice in the matter of the Red River Rebellion and the murder of Thomas Scott. He failed to attend and was later expelled from the House....
In 1891, the Public Accounts Committee reported that André Senécal, an employee of the Government Printing Bureau, had failed to appear when called as a witness. The House adopted a motion summoning him to appear at the Bar. When he failed to do so, the House ordered that he be taken into the custody of the Sergeant-at-Arms, who could not locate him. No further action was taken.
The latter case concerning Mr. Senécal, a public servant holding the office of superintendent of printing, begins in the House's records at page 454 of Journals on August 27, 1891, when the public accounts committee reported that Mr. Senécal failed to appear when summoned, though the sought-after witness claimed he was following medical advice and, furthermore, had offered his resignation from his government position.
While Bosc and Gagnon noted that no further action was taken concerning Mr. Senécal, it was not for a lack of trying. The acting sergeant-at-arms, Lieutenant-Colonel Henry Smith, informed the House, at column 4747 of the Debates for September 1, 1891:
Mr. Speaker, I have the honour to report that the witness Senécal left Ottawa on or about the 24th ultimo, and, although I have made careful enquiry, I have been unable to ascertain his present whereabouts. In consequence of his absence, the Order for him to attend at the Bar of the House this afternoon, was left with a member of his family at his Ottawa residence.
A further incident, this one involving a member of the House being investigated in a corruption scandal, is recounted by Bosc and Gagnon at page 136. It states:
In 1891, Thomas McGreevy (Quebec West) was accused by Israel Tarte (Montmorency) of corrupt practices concerning construction work in the harbour at Quebec City, and the matter was referred by the House to the Select Standing Committee on Privileges and Elections. Mr. McGreevy refused to answer questions put to him while appearing before the Committee. The Committee reported this to the House on August 12, 1891, and requested that the House take action. On August 13, Mr. McGreevy was ordered by the House to attend in his place on August 18. On that day, Mr. McGreevy was found not to be in attendance and the Sergeant-at-Arms was ordered to take the Member into custody.
The records of the House concerning Mr. McGreevy show that the orders of the House were not mere words printed on paper. When Mr. McGreevy did not appear at the appointed hour on August 18, 1891, column 4001 of the Debates shows that Mr. Speaker Peter White updated the House on the matter. He stated:
I am informed by the Clerk that a copy of the Order of the House of Thursday last, duly signed by himself, was forwarded by post on Friday last to Hon. Thomas McGreevy at Quebec, when it was learned that he was not at Ottawa, and a telegram communicating the Order was at the same time sent to him at Quebec. The manager of the North-Western Telegraph Company at Quebec has informed the Clerk that the telegram was duly delivered to Hon. Thomas McGreevy on Friday last at 2.45 p.m., in the office of the Richelieu and Ottawa Navigation Company.
When the House ordered Mr. McGreevy into custody, Lieutenant-Colonel Smith did not just keep a copy of the order in his pocket; he jumped on a train and he went in pursuit of the absconding MP. Page 422 of the Journals for August 20, 1891, reveals the following entry:
Mr. Speaker informed the House, that, in pursuance of the Order of the House of the 18th instant, he had issued his Warrant to the Acting Sergeant-at-Arms for the taking into custody of the Honourable Thomas McGreevy, and that he had received the following report from that office: —
Ottawa, 20th August, 1891.
Sir, — I have the honour to report that I reached Quebec yesterday, at 3 o'clock, p.m., and at once made diligent search for Mr. Thomas McGreevy at his residence, office and other places, but could not find him. Later I was informed, on what I considered good authority, that he had left Quebec by the Grand Trunk Railway, but I was unable to ascertain his destination. I have no doubt that he left Quebec several hours before I arrive in that city.
I have the honour to be, sir
Acting Sergeant-at-Arms, House of Commons
In the end, the privileges committee, which had been investigating the corruption allegation against Mr. McGreevy, completed its work and reported back to the House. Bosc and Gagnon note the outcome at page 136:
On September 29, the House adopted a resolution finding Mr. McGreevy guilty of contempt of the authority of the House by not attending in his place when ordered, as well as being guilty of certain other offences. The House then adopted a second resolution expelling Mr. McGreevy.
This was based on the findings of the privileges committee.
Going back to Bosc and Gagnon's list, which I introduced earlier, at pages 131 and 132, the next relevant case is the following:
In 1894, two witnesses (Jean Baptiste Provost and Omer Edouard Larose) failed to appear when summoned as witnesses before the Privileges and Elections Committee. The Committee reported this and asked for “the action of the House”. A motion was adopted summoning the two witnesses to appear before the Bar. They failed to comply and the House ordered them to be taken into the custody of the Sergeant-at-Arms in order to be brought to the Bar of the House. They later appeared, answered questions and were discharged.
This 1894 case concerned two Quebec City grocers who failed to appear when summoned by a committee that was undertaking another corruption investigation respecting a member. They based their refusal on the fact they had not been advanced money for their travel expenses. The witnesses persisted in their refusal, even in the face of an order of the House of Commons but, as noted, the House ordered them into custody and the Sergeant-at-Arms saw to it.
Upon being called to the bar, Mr. Provost and Mr. Larose were each asked by Prime Minister Sir John Thompson the same two questions recorded at pages 299 and 300 of the Journals for June 13, 1894, which state:
1. Have you any explanation to offer of your disobedience to the summons of the Select Standing Committee on Privileges and Elections of this House requiring your attendance before the Committee, and of the Order of The House requiring your attendance at the Bar of The House?
2. Are you prepared to undertake to The House that you will, if relieved from custody, attend and testify before the Select Standing Committee on Privileges and Elections at the first meeting of the Committee and at each meeting thereafter until relieved from further attendance?
Following the two witnesses' positive answers to the latter question, the House discharged them from the custody of the Sergeant-at-Arms.
As for a witness defying an order to appear at committee, at page 548, Odgers comments that Australian Senate orders of this nature have had a different experience from our March 25 order. It states:
In all such cases the orders were complied with and witnesses duly appeared, or, in one case, required documents were produced. They were all public office-holders; this procedure has not been used in respect of private citizens.
The United Kingdom's House of Commons on the other hand, quite recently had an experience closer to our own. In 2018, that House's Digital Culture, Media and Sport Committee reported to the House that as part of its study into “fake news” it had invited, then ordered, Dominic Cummings, who had been the campaign director for the Vote Leave campaign in the 2016 Brexit referendum to appear for the purpose of giving evidence.
Mr. Cummings defied the order and on June 5, 2018, that committee reported to the House that his absence “constitutes a serious interference with the ability of this Committee to discharge the task assigned to it by the House.”
In response, on June 7, 2018, the U.K. House of Commons passed the following motions recorded at pages 1 and 2 of the Votes and Proceedings:
Resolved, That this House takes note of the Third Special Report of the Digital, Culture, Media and Sport Committee (HC 1115);
Ordered, That Mr Dominic Cummings give an undertaking to the Committee, no later than 6 pm on 11 June 2018, to appear before that Committee at a time on or before 20 June 2018.
Page 5 of the Votes and Proceedings for June 20, 2018, shows that the committee's chair reported to the House that Mr. Cummings failed to comply with the House's orders. Then on June 28, 2018, the House referred the matter to its committee on privileges. After the privileges committee reported back to the House of Commons—
:
Madam Speaker, in spite of the outburst from the member for , I would note that as a courtesy to the House, I have combined multiple questions of privilege into this one. If the Chair would prefer, I can rise in succession on each point, but this will certainly be more brief than if I were to do that. However, I am not just raising one question of privilege. I note in your ruling that this does take precedence over the orders of the day. It is important to the function of this place. I will continue.
While the member for continues to interrupt and is very concerned about the constituents in my riding of Leeds—Grenville—Thousand Islands and Rideau Lakes, I can assure him that Canadians are very disappointed that the government has found itself filibustering committees for 43 hours at ethics, 73 hours at Procedure and House Affairs and 35 hours at the Standing Committee on Finance. The Liberals shut down the study at the national defence committee by filibustering for more than 16 hours. I could go on with that list, so while the member for Kingston and the Islands continues to interrupt the proceedings of this place with his suggestions about how long this should take, I think that the precedents and the orders of this place have been quite clear and that for me to raise the multiple breaches of privilege of this place, which are older than any of us and are as old as this place itself, is tremendously important, so I will continue.
In response, the United Kingdom House of Commons on June 7, 2018, passed the following motion recorded at pages 1 and 2 of Votes and Proceedings:
Resolved, That this House takes note of the Third Special Report of the Digital, Culture, Media and Sport Committee (HC 1115);
Ordered, That Mr Dominic Cummings give an undertaking to the Committee, no later than 6 pm on 11 June 2018, to appear before that Committee at a time on or before 20 June 2018.
Page 5 of the Votes and Proceedings for June 20, 2018, shows that the committee's chair reported to the House that Mr. Cummings failed to comply with the order of the House.
Then on June 20, 2018, the House referred the matter to its Committee of Privileges. After the privileges committee reported back to the House of Commons, the House on April 2, 2019, adopted a motion on the committee's recommendation finding Mr. Cummings in contempt, and admonished him as recorded on page 1 of the Votes and Proceedings.
In opening this segment of my presentation, I referred to Bosc and Gagnon adding a caveat of “without reasonable excuse”. The present case, I would argue, can be dealt with very quickly considering that none of the three witnesses offered any excuse for their absence.
I acknowledge that two cabinet ministers wrote to the ethics committee chair to indicate that they would appear on behalf of the witnesses, but that does not constitute an excuse from the witnesses personally. In the alternative, I would say it does not amount to a reasonable excuse.
While I plan to address the government's position that staff are not compellable witnesses when I make my argument that the government's interference with the March 25 order of the House constitutes prima facie contempt in its own right, I have a few brief points at this juncture.
First, the government, through its House leader, advanced this position in debate in the House on March 25, yet the House still adopted the motion for this order.
Second, the House's order did actually permit someone to appear on a substituted basis in the name of ministerial responsibility: the . However, he did not appear as permitted by the order.
Third, the ethics committee did not accept the government's position. This can be seen from the comments in the second report as well as from the records of the meetings the witnesses were due to attend.
Fourth, should the Chair hold the view that it could still be weighed as a possible reasonable excuse, I would submit that the place to do that at this stage is through an amendment to any privilege motion that might arise from this proceeding on the basis the government can test the will of the House for its perspective on these matters.
In this case, it is quite clear. The House adopted an order, and the order was breached completely. There was no effort by the witnesses to meet it in any way, nor was any excuse advanced by them to be weighed by the House or for the committee to assess and report its findings. Therefore, with respect to the first three matters of privilege, the absence of Mr. Theis, Mr. Singh and Mr. Chin, I respectfully submit that you, Madam Speaker, should find prima facie contempt here.
On the next question of privilege, I wish to turn to the government's role in preventing Mr. Theis, Mr. Singh and Mr. Chin from appearing as witnesses at the committee. The government has freely admitted to this course of conduct, both in advance and at the time of the scheduled appearances.
In his remarks to the House on March 25, the said, at page 5,234 of Debates:
I say here today that ministers will instruct their staff not to appear when called before committees and that the government will send ministers instead to account for their actions.
Though I find such an openly defiant attitude to be contemptuous in and of itself, I will speak to the specific instances of interference concerning the three witnesses.
In advance of the March 29 ethics committee meeting, the sent a letter to the chair of the ethics committee, further to his statement to the House the week before, writing:
Accordingly, Mr Rick Theis, Director of Policy to the Prime Minister, has been instructed to not appear before the committee. In his place, I will attend the meeting on behalf of the government on Monday, March 29th.
We are not talking about train robberies anymore.
On May 3, at a meeting of the ethics committee originally convened on April 23, the committee adopted a motion, which can be found in appendix A of the second report, that says, at paragraph 5, that the committee noted that the government House leader appeared on Monday, 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 Thursday, March 25, 2021”.
I would like to add that the ethics committee did not accept the as a substitute witness in satisfaction of the order. Indeed, the committee, at the March 29 meeting, adopted a motion that states, “in relation to its study on questions of conflict of interest and lobbying in relation to pandemic spending, the committee invite [the minister] to appear.” He was treated as a separate witness, invited independently of and without any link to the March 25 order of the House.
When the appeared at the committee, he said, at page 13 of Evidence:
Based on the instructions I gave the other day, it was clear to Mr. Theis and other individuals that they wouldn't appear before committees and would be replaced by the appropriate ministers....
The minister even acknowledged, at page 8 of the evidence, that this was an unsatisfactory arrangement to the majority of the House, when he said:
I am aware that some of the members of this committee would rather be hearing from a staff member from the Prime Minister's Office, Mr. Rick Theis, but as I told the House last week and I want to make clear again, we fundamentally disagree with [that] decision....
At page 22, I asked whether Mr. Theis would have been fired had he ignored the government instruction and honoured the order of the House of Commons. The denied it, but defensively added, “Why are you asking that?”
Now, we turn to the other two witnesses: Mr. Singh and Mr. Chin.
In a letter addressed to the chair of the committee on March 30, the wrote:
Mr. Amitpal Singh has been instructed to not appear before the committee. In his place, I will attend the meeting on behalf of the government on Wednesday, 31 March 2021.
In another letter to the committee's chair, on April 7, the associate minister wrote:
Mr. Ben Chin has been instructed to not appear before the committee. In his place, I will attend the meeting on behalf of the government on Thursday, 8 April 2021.
The same motion adopted by the committee on May 3 and recorded in appendix A of the second report acknowledged, at paragraph 6, that the committee noted that the Associate Minister of Finance “also requested to appear on [Wednesday] March 31 and [Thursday] 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 [Thursday] March 25, 2021”.
Earlier in my remarks, I cited page 81 of Bosc and Gagnon on a description of privilege, which is equally applicable in this separate question of privilege. From the list, which I had mentioned can be found at page 82, I would refer the Chair to the 11th and 13th items: “interfering with or obstructing a person who is carrying out a lawful order of the House or a committee” and “intimidating, preventing or hindering a witness from giving evidence or giving evidence in full to the House or a committee”.
Clearly, Mr. Theis, Mr. Singh and Mr. Chin were prevented from, and maybe even hindered in their ability of, carrying out a lawful order of the House of Commons, namely giving evidence to the ethics committee.
For his part, Maingot comments on page 240:
Obstructing, interfering with, or preventing execution or orders of the House or of a committee would be akin to aiding and abetting a person to commit an offence. Taking action to prevent an order of the House from being carried out could result in contempt because it also represents an affront to the authority of the House.
McGee's Parliamentary Practice in New Zealand, fourth edition, states at page 774:
Any attempt to intimidate, prevent or hinder a witness from giving evidence in full to the House or a committee may be held to be a contempt. Such intimidation or hindrance may be overt (for example, physically preventing a witness from attending and giving evidence) or less overt (for example, offering a bribe to give false testimony, or taking legal action to prevent a witness from giving evidence or from producing all the evidence in his or her possession).
Page 1080 of Bosc and Gagnon adds, “Tampering with a witness or in any way attempting to deter a witness from giving evidence may constitute a breach of parliamentary privilege.”
Erskine May, at paragraph 15.21, declares, “Any conduct calculated to deter prospective witnesses from giving evidence before either House or a committee is a contempt.” The same point is also made in paragraph 38.59. Erskine May expands upon the concept at paragraph 15.22:
A resolution setting out that to tamper with a witness in regard to the evidence to be given before either House or any committee of either House or to endeavour, directly or indirectly, to deter or hinder any person from appearing or giving evidence is a contempt, was formerly agreed to by the Commons at the beginning of every session. However, following a report from the Procedure Committee which concluded that the sessional passing of such resolutions, although they had some value as statements of intent, did not add anything to the House's powers to deal with contempts or (in the case of tampering with witnesses or the giving of false evidence on oath) the relevant statutory powers, the House agreed in 2004 to dispense with them.
There have been in the past numerous instances of punishment for offences of this kind. Corruption or intimidation, though a usual, is not an essential ingredient in this offence. It is equally a contempt to attempt by persuasion or solicitations of any kind to induce a witness not to attend, or to withhold evidence or to give false evidence.
This matter was considered in 1935 by a committee of the Commons which reported that, in its opinion, it was a breach of privilege to give any advice to a witness which took the form of pressure or of interference with their freedom to form and express their own opinions honestly in the light of all the facts known to them; and the House resolved that it agreed with the committee in its report.
The annual resolutions referred to in that passage can be traced as far back as February 21, 1700, when the English House of Commons adopted a resolution, at page 350 of Journal, which says:
That if it shall appear that any person hath been tampering with any Witness, in respect of his evidence to be given to this House, or any Committee thereof, or directly or indirectly hath endeavoured to deter or hinder any person from appearing or giving evidence, the same is declared to be a high crime and misdemeanour; and this House will proceed with the utmost severity against such offender.
Insight into just how severe, even in the case where contrition had been expressed, can be gleaned from Speaker Shaw-Lefevre's admonition of a witness at the bar of the United Kingdom's House of Commons on March 22, 1842, which is recorded at page 143 in Journal. It says:
John Ashworth, any interruption of the proceedings of this House, or of any committees of this House, can only be regarded as contempt of its authority, and your offence is much aggravated by the circumstances under which it took place. By improperly interfering with the testimony of a witness under examination, you did your utmost to obstruct the discovery of truth, and defeat the ends of justice. Such conduct cannot be allowed to pass entirely without censure; but that the House, always anxious to act with lenity, and taking into its consideration the contrition you have expressed, and believing that your offence was unpremeditated, has directed me to admonish you as to your future conduct; and I trust that this admonition will be a warning to others that this House will not deal so leniently with an offence of this description, if repeated by another individual. You are now discharged from further attendance upon this House.
Of course, in today's case, we have had defiance, not contrition, and coordinated planning, not unpremeditated actions.
Maingot, at pages 236 and 237, addresses the protection afforded to witnesses and others besides members and officers when they are engaged in parliamentary proceedings and committees. He says:
There do not appear to be any Canadian precedents of persons being so obstructed; yet, because the House of Commons need not be so constrained by lack of precedent, it may in its judgment find a person or persons in contempt after an examination of the facts in any particular case.
In Speaker Milliken's much-celebrated ruling on Afghan detainee documents on April 27, 2010, which we have heard about in recent days, he also made some less well-remembered comments on witness matters, including at page 2,041 of Debates, which says that “the procedural authorities are clear that interference with witnesses may constitute a contempt.”
Beyond the matter of the government's so-called “instructions”, at page 13 of the ethics committee March 29 evidence, the government House leader made the claim that “ministerial responsibility means that a minister can replace an employee who reports to the minister, not to Parliament.”
That is just not so. In fact, it is, in my view, a gross misstatement of several constitutional principles. Even if accepted, the government House leader's position is defeated by the facts. Two of the witnesses are employees of and answer to the , while the third is an employee of the . Neither of those two ministers offered to replace their employees. Of course, the House contemplated the very possibility of the attending on behalf of his employees, something he failed to do, either in accordance with the order of the House or with the policy articulated by the government House leader.
Ministerial staff enjoy no special status in law. Pages 981 to 983 of Bosc and Gagnon state quite clearly that:
The Standing Orders place no explicit limitation on this power. In theory, it applies to any person on Canadian soil.... In practice, certain limitations are recognized on the power to order individuals to appear. Because committee powers do not extend outside Canadian territory, a committee cannot summon a person who is in another country. The Sovereign (either in Canada or abroad), the Governor General and the provincial lieutenant governors are also exempt from such a summons.
This applies as well to parliamentarians belonging to other Canadian legislatures, because each of these assemblies, like the House of Commons, has the parliamentary privilege of controlling the attendance of its members and any matters affecting them. The same logic explains why a standing committee cannot order a Member of the House of Commons or a Senator to appear. At issue in all these examples is the power to order someone to appear; nothing prevents such individuals from appearing voluntarily before a committee following a simple invitation, apart from the obligation incumbent upon some of them to obtain leave from the House to which they belong....
Although they can send for certain persons, standing committees do not have the power to punish a failure to comply with their orders in this regard. Only the House of Commons has the disciplinary powers needed to deal with this type of offence. If a witness refuses to appear, or does not appear, as ordered, the committee’s recourse is to report the matter to the House. Once seized with the matter, the House takes the measures that it considers appropriate.
No where on those lists are ministerial staff exempt or political staff more generally. Moreover, there is no general authority for a minister to come as a substitute, though I would again observe that the House, in crafting its March 25 order, accommodated ministerial responsibility by permitting the to appear on behalf of his employees.
To contrast the government's selective approach to parliamentary accountability for those who work under them, let us look at the 1891 case of Mr. Senécal, the public servant whom I discussed earlier. In that case, Mr. Senécal's own minister sat on the committee to which he was ordered to attend, and according to the public accounts committee minutes of evidence for August 27, 1891, the minister did not claim some kind of higher principle of ministerial accountability to excuse the witness's absence. The minister stated:
In connection with the letter which has just been read from the Superintendent of Printing, I may say I have had no communication with Mr. Senécal, nor even with his family, and did not even know that such a letter would be sent to the Chairman of the Committee. In justice, however, to a man who is absent, and against whom I suppose it is necessary that the ordinary proceedings should be taken to force his attendance here....
I wish it to be well understood, as I stated before, I know nothing about the whereabouts of Mr. Senécal. I do not want to justify his action in writing a letter, or his leaving. I only think it is just for an absent man, to state what I know to be the case....
A former general legal counsel for this House Diane Davidson wrote in a 1994 paper provided to the Standing Joint Committee for the Scrutiny of Regulations—
:
Madam Speaker, a former general legal counsel for this House, Diane Davidson, wrote in a 1994 paper provided to the Standing Joint Committee for the Scrutiny of Regulations:
As to the status of public servants and Ministers as a question of law only, I would subscribe to the conclusion of the Ontario Law Reform Commission in its 1981 Report on Witnesses Before Legislative Committees...that these witnesses are in the same position as any other witness—in theory they could be compelled to testify on any issue, answer any questions or produce any document. There is no legally guaranteed immunity from Parliament's broad power to call for information, and therefore no special status is conferred.
New Zealand's House of Representatives shares the perspective as McGee notes on page 494:
The power to summon witnesses and order the production of documents is not limited in its application to public servants, Government bodies, or other public agencies. It extends to ordering individuals, corporate and private bodies to appear before the House or a committee to give evidence....
In 2013, the Parliament of the United Kingdom's Joint Committee on Parliamentary Privilege considered a government green paper on parliamentary privilege that, among other things, asked whether Parliament's ability to compel MPs, civil servants and judges should be extinguished. The committee, at paragraph 87, spoke powerfully against the idea of exempting government employees from the power to send for persons:
Reducing Committees’ powers to call for civil servants would rebalance the relationship between the legislature and the Executive in the Executive’s favour. The Osmotherly rules, which guide officials in their dealings with Committees of the two Houses, are a creation of the Executive, not of Parliament. As a matter of principle, we see no reason why civil servants should be in a different position from other members of the public.
The law clerk advanced the point that there is no immunity for ministerial staff when he appeared before ethics committee on April 12, and the committee thought fit in appendix A of the second report to include a summary of his evidence on this very point:
Mr. Dufresne stated that political staff and public servants have no immunity, by virtue of their positions, from requests to testify before parliamentary committees. 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.
As to that point, the authorities tend to describe the tendency to show deference toward public servants because it is, in a system of responsible government, ministers who, quite rightly, ought to account to Parliament for policy choices and overall government administration.
In the present case, we are not looking to have Messrs. Theis, Singh and Chin account for the merits of helping young Canadians during a pandemic, nor are we looking to discuss the Canada student service grant concept in its broadest terms as the vehicle to deliver the support. They are, bluntly, fact witnesses who directly participated in a number of transactions that led to WE Charity's partnership with the Liberal government being conceived, developed and refined. They personally possess direct knowledge of various transactions and could assist the committee in connecting many of the dots which ministers and senior officials, evidence and documents have laid out.
Reverting back to appendix A, the ethics committee further noted:
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.
In debates this year, the government has sought to compare itself to its predecessor. This was also addressed with the law clerk during his April 12 ethics committee appearance, which is summarized at appendix A:
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.
I would also go further and point out that the committee in question, also the ethics committee, deliberated on escalating the absence of three staff witnesses into a report to the House, but on October 7, 2010, by a five to three vote, negatived a motion to make that report.
In the circumstances, I would argue that the 2010 ethics committee had, by majority vote, accepted the substitution of ministers for the staff witnesses. Indeed, as the law clerk observed, the originator of the order, the committee in that case, judged compliance with it, and by voting against taking further action, it demonstrated it was satisfied.
In short, only the originator of an order can assess compliance or give relief from it. Certainly ministers or even Prime Ministers do not have the authority to waive orders of the House respecting witnesses as the government House leader may claim.
Harry Evans, former Clerk of the Senate of Australia, wrote in a January 29, 1993 memorandum to the chairman of the Senate select committee on the powers, functions and operation of the Australian Loan Council, which forms appendix 5 of that committee's March 1993 interim report:
You have sought advice on the hypothesis that...the Prime Minister may have improperly interfered with a potential witness before the Committee by directing or encouraging that person, namely the Treasurer, not to assist the Committee or to appear before it. The Prime Minister enjoys no special immunity from the provisions relating to interference with witnesses.... Evidence that a minister wished to assist a committee and was deterred from doing so by, for example, threats of dismissal from office, could generate proceedings for contempt....
Since then, the Australian Senate has built up a body of experience with respect to the matter of ordering the attendance of ministerial staff at committees. Pages 566 and 567 of Odgers' recounts:
The question has occasionally arisen as to whether Senate committees may summon ministerial staff and departmental liaison officers to appear before them and give evidence. Such persons have no immunity against being summoned to attend and give evidence, either under the rules of the Senate or as a matter of law. Departmental liaison officers are not in any different category from other departmental officers. From time to time it has been suggested that ministerial staff are in a special category and should not give evidence before parliamentary committees. Such staff have, however, appeared before Senate committees and given evidence, both voluntarily and under summons. In February 1995 the then Minister for Finance, Mr Beazley, declined to allow the Director of the National Media Liaison Service (NMLS) to appear before a Senate committee to give evidence about the activities of the NMLS on the ground that that person was a member of ministerial staff. The Senate passed a resolution directing that person to appear before the committee, and he subsequently appeared and gave evidence accordingly. The preamble to the Senate's resolution pointed out that the NMLS was provided with public funds, and it was stated in debate that the resolution did not set a precedent for summoning ministerial staff, but the passage of the resolution indicates—