:
Colleagues, I am now ready to rule on the question of privilege raised on September 16 by the , concerning the alleged failure to produce documents pertaining to Sustainable Development Technology Canada.
In his intervention, the argued that several government departments and agencies failed to adhere to a House order for the production of documents related to Sustainable Development Technology Canada, which was adopted on June 10. His assertions were based on a series of letters provided to the Speaker by the Law Clerk and Parliamentary Counsel and tabled in the House pursuant to that order.
The law clerk had been directed to report to the Speaker on whether the respondents had, in fact, fully complied with the House order, by the stipulated deadline of 30 days following the adoption of the order. The letters were tabled on July 17, August 21 and September 16. In some instances, only partial disclosures were made, owing either to redactions or the withholding of documents. In other instances, the House order was met with a complete refusal.
[Translation]
The argued that the House's powers to order the production of documents are absolute and, as a result, the government was in contempt of the House for its disregard of a binding House order. He therefore asked the Chair to find a prima facie question of privilege, enabling the House to consider a motion to reiterate the order with a new deadline and urging the to make it clear to departments that the House order ought to be complied with.
[English]
In response, the expressed concerns that the House order may trespass on certain charter rights, in particular relating to police investigations and privacy. She also argued that it was procedurally inadmissible on the grounds that the order exceeded the authority of the House by attempting to secure documents for the exclusive use of a third party, namely the RCMP, rather than for its own use.
[Translation]
She further suggested that the order constituted an attempt by the House to appropriate the role of another branch of Canada's system of government, namely, the judiciary, by authorizing the RCMP to obtain information outside the established and judicially based law enforcement processes. Indeed, she noted that the RCMP itself had raised concerns about accepting the documents, as it feared doing so may circumvent normal investigative processes and Charter protections.
The government House leader also indicated that the order was silent on whether the documents requested should be redacted. She suggested that, absent any other indication from the House, the government should follow its statutory responsibilities by redacting documents to protect sensitive information.
[English]
While the argued that the House may have exceeded its authority in adopting the order, if the Chair determines that the matter is a prima facie question of privilege, she contended that the appropriate course of action would be for the House to refer the matter to the Standing Committee on Procedure and House Affairs to shed light on the contentious points.
The returned a second time to rebut arguments advanced by the , namely those on the admissibility of the motion, the nature of the motion and the scope of the House's power to order the production of documents.
[Translation]
The member for intervened to argue that the order for the production of documents should be respected. He added that it is up to the House to decide whether it is satisfied by the nature of the response. The member for contended that the government may well have had reasons to not meet its obligations, but that the privileges of the House are well established and the order was clear. He endorsed a prima facie finding. While both members noted the order was unusual, both maintained this fact does not excuse non-compliance.
[English]
The House has been seized before with questions of privilege regarding orders for the production of documents. Neither the Standing Orders nor any statute delimits Parliament's authority to order the production of papers and records that it may need to carry out its duties. House of Commons Procedure and Practice, third edition, confirms this procedural and constitutional understanding, stating at page 985:
No statute or practice diminishes the fullness of that power rooted in House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers....
The pointed to the partial production of documents provided to the law clerk. As we have been informed, there were many redactions and omissions, which were made by the various departments and agencies that produced the documents. The House order, indeed, did not explicitly require that the documents be provided in unredacted form, nor did it make provision for departments and agencies to pre-emptively omit or redact portions of documents or documents in their entirety. On this matter, only the House can judge if it is satisfied with the production of documents that it has received.
[Translation]
More generally, the understanding that it is for the House to determine how to exercise its power to order the production of documents is also set out in Joseph Maingot’s Parliamentary Privilege in Canada, second edition, at page 190, where he states: “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.”
[English]
The procedural precedents and authorities are abundantly clear. The House has the undoubted right to order the production of any and all documents from any entity or individual it deems necessary to carry out its duties. Moreover, these powers are a settled matter, at least as far as the House is concerned. They have been confirmed and reconfirmed by my immediate predecessors, as well as those more distantly removed.
To lend support to the absolute nature of the power to order the production of documents, the relied on the ruling on a question of privilege of April 27, 2010, from Speaker Milliken, centring on the House's right to order documents. He stated in the Debates, at page 2043, the following: “procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of government documents”.
[Translation]
The government House leader attempted to argue that this particular order for documents was different, insofar as the documents were not to assist members in carrying out their duties but instead to be transmitted to a third party. For this reason, she claimed that the order was beyond the authority of the House. The Chair would suggest, respectfully, that these concerns ought to have been raised prior to the motion’s adoption.
I would remind members that, if there are concerns about the procedural admissibility of any motion, they should be raised with the Chair before the motion is debated or, at the latest, before the House is called upon to vote on the matter. It would be difficult, perhaps even inappropriate, now for the Chair to retroactively comment on its admissibility.
[English]
As it stands, the motion was adopted. The House has clearly ordered the production of certain documents, and that order has clearly not been fully complied with. The Chair cannot come to any other conclusion but to find that a prima facie question of privilege has been established. However, before inviting the to proceed with the moving of a motion, I would like to make a few comments on the type of motion the Chair would consider to be appropriate in the circumstances.
The members who intervened on this question used words such as “unusual”, “novel” and “unprecedented” to describe this particular production order. The Chair agrees with those characterizations. It is indeed unusual, novel and unprecedented for the House to order documents not for its own purposes but for a third party. The Chair also notes that the intended recipient of the information, the RCMP, has expressed to our law clerk its serious reservations about receiving these documents, at least in their current form. Both the and the member for argued that this is not the House’s concern and that the RCMP can simply refuse the information if it wishes. Before insisting on the production of documents, as the opposition House leader proposes to do, the Chair believes the House would benefit from having this matter studied further.
[Translation]
In his landmark ruling on documents relating to Afghan detainees on April 27, 2010, Speaker Milliken spoke eloquently of the need for reflection, collaboration and even accommodation in such matters. While asserting unequivocally that the House had the right to order the production of papers, he also recognized that the House generally understands that the government has responsibilities to protect certain information.
[English]
In that case, it was a matter of balancing national security concerns with the duty of elected representatives to hold the government accountable for its decisions. In the case before us, the government, the RCMP and even the Auditor General, an officer of Parliament, have expressed concerns about providing the documents in question to the RCMP. While it is ultimately for the House to decide how it wishes to proceed in the face of such objections, the Chair is of the view that it would be valuable to afford an opportunity for the concerns expressed by the RCMP, as well as by the Auditor General, to be addressed fully and, I would hope, for a mutually satisfactory solution to be arrived at.
I believe the best way for this to be achieved would be to follow the usual course for a prima facie question of privilege, that is, a referral to the Standing Committee on Procedure and House Affairs. Such a referral would allow for a more detailed consideration of what documents remain to be submitted, what has been withheld and why, and, most importantly, how the House can ensure the intended recipient, the RCMP, is in a position to act as the House would wish it to act.
[Translation]
The Chair acknowledges that, in recent years, other privilege motions have been brought forward, rather than the usual referral to a committee, although previous Speakers have on occasion insisted on a particular course of action.
My predecessor’s ruling of June 26, 2021, found at page 8550 of the Debates, stated that:
A review of the rare exceptions shows that there was a certain consensus on the procedure to follow and, thus, on the wording of the motion. As Speaker Milliken confirmed in a ruling on March 9, 2011, at page 8842, ‘The Chair is of course aware of exceptions to this practice, but in most if not all of these cases, circumstances were such that a deviation from the normal practice was deemed acceptable, or there was a unanimous desire on the part of the House to proceed in that fashion.’ There are also precedents that support censure. In short, given that the parameters for such motions are clear and that the practice is well established, the proposed motion should be a motion of censure or to refer the matter to the appropriate committee for study.
[English]
I would also refer the House to the same ruling made by Speaker Milliken on March 9, 2011, in which he found that the proper course of action in those circumstances was to refer the matter to committee. At page 8842 of the Debates, he stated:
I hasten to add that the powers of the Speaker in these matters are robust and well known. In 1966, Mr. Speaker Lamoureux, having come to a finding of prima facie privilege on a matter ruled a number of motions out of order. As House of Commons Procedure and Practice, second edition, tells us at page 147, footnote 371, in doing so, Mr. Speaker Lamoureux “more than once pointed out that it was Canadian practice to refer such matters to committee for study and suggested that this should be the avenue pursued”.
The table officers and I are available to help the craft an acceptable motion. The House will consider the matter as soon as the member is ready to move his motion in the appropriate form.
I thank all members for their attention.