Parliamentary Privilege / Rights of the House

The right to institute inquiries, to require the attendance of witnesses and to order the production of documents: standing committees; access to documents; prima facie

March 9, 2011

Debates, pp. 8840-2

On February 7, 2011, James Rajotte (Edmonton–Leduc) presented the Tenth Report of the Standing Committee on Finance (question of privilege relating to the Government’s failure to produce documents with respect to corporate profits and taxes and the costs of various justice bills).^[1] Later in the sitting, Scott Brison (Kings–Hants) rose on a question of privilege in relation to the Report. He explained that on November 17, 2010, the Committee had passed a motion ordering the Government to provide it with five-year projections of total corporate profits before taxes and effective corporate tax rates, and also projected costs of certain justice bills. He added that, in both cases, the Government had invoked Cabinet confidence to justify not providing the information without providing a reasonable explanation as to why it was invoking such a justification. Arguing that some of this information had been published by the previous Government, and that confidentiality on cost estimates should not apply to legislation once it had been introduced, he contended that withholding the information had impeded Parliament’s ability to fulfill its duty to scrutinize the estimates and to hold the Government to account. The Speaker heard from other Members on February 9 and 11, 2011.^[2]

On February 17, 2011, the House debated an opposition motion, the text of which affirmed the right of Parliament to request documents, stated that the Government’s refusal to table the requested information constituted a violation of the rights of Parliament, and ordered the Government to produce the desired documents by March 17, 2011. During the course of the sitting, John Baird (Leader of the Government in the House of Commons) tabled information in response to the Committee’s Order. At the conclusion of debate, a recorded division on the motion was demanded and deferred.^[3]

On February 28, 2011, both Mr. Lukiwski and Mr. Brison rose again, Mr. Lukiwski arguing that, since there was no order from the House for the production of documents, there was no question of privilege, and that the Government, while not being able to provide the House with specific documents on grounds of Cabinet confidence, had provided it with information that met the requirements of the Committee’s Order. Mr. Brison countered that the information tabled by the Government House Leader was inadequate and that the Government’s continued failure to provide an explanation as to why the documents were covered by Cabinet confidence constituted a contempt of Parliament. The Speaker indicated that he would take their submissions into consideration.^[4] Later during the sitting, the House proceeded to the taking of the deferred recorded division on the opposition motion of February 17, 2011 and the motion was agreed to.^[5]

The Speaker delivered his ruling on March 9, 2011. He declared that the absolute power of committees to order the production of papers was indistinguishable from that of the House. He stated that, without judging the quality of the information tabled by the Government, he had concluded that the Government had not provided all the information requested by the Committee. He added that he considered this a serious matter that went to the heart of the House’s role in holding the Government to account. For these reasons, the Speaker judged that there were sufficient grounds for finding a prima facie question of privilege in the matter. Before recognizing Mr. Brison to move his motion, the Speaker took the opportunity to provide guidance to the House as to the type of motion that he would find in order in this instance. Quoting House of Commons Procedure and Practice, 2009, he emphasized that it was Canadian practice to refer such matters to committee for study and indicated that he expected the motion to be consistent with this practice. The Speaker then delivered a ruling on another matter before recognizing Mr. Brison to move his motion.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on February 7, 2011, by the hon. Member for Kings–Hants concerning the production of documents ordered by the Standing Committee on Finance.

I would like to thank the hon. Member for Kings–Hants for having raised this matter, as well as the hon. Parliamentary Secretary to the Government House Leader, and the Members for Mississauga South, Windsor–Tecumseh and Notre-Dame-de-Grâce–Lachine for their interventions.

The Member for Kings–Hants explained that on November 17, 2010, the Standing Committee on Finance adopted a motion ordering the production of documents relating to corporate profits and taxes and the costs of various justice bills. The Government, citing Cabinet confidence as a reason, declined on three separate occasions to produce the information sought. The Committee then presented its Tenth Report to the House on February 7, 2011, to draw the attention of the House to this matter.

More specifically, the Member for Kings–Hants contended that the refusal to provide the information constituted a breach of this House’s privileges and, moreover, the refusal to provide a reasonable explanation as to why the information was deemed to constitute a Cabinet confidence was tantamount to contempt.

There was a considerable lapse of time before the Government formally responded to this question of privilege. Before it did so on February 17, 2011, in the Debates, at page 8324, the Government House Leader rose in the House to table “information on our Government’s low-cost and tough-on-crime agenda as requested by certain Members of Parliament”.

Only after this, on February 28, 2011, did the Parliamentary Secretary to the Government House Leader [return]^[6] to the House to present his case on the question of privilege. He argued that even though, in his view, the Standing Committee on Finance, in its Tenth Report, did not ask the House to order the production of the documents in question, the Government, despite the absence of such a House Order, had willingly tabled information which preserved “the confidentiality required around documents which are classified as Cabinet confidences yet meets the request for specific data contained within the documents which by its nature is not a Cabinet confidence”.

Later the same day, the Member for Kings–Hants made further arguments in the House to indicate his dissatisfaction with the Government’s response. He stated that he believed the Government had “failed both to provide all the documents or provide any reasonable explanation as to why these documents cannot be provided”.

In interventions since that time, the Government has maintained that the Government has provided the information requested, implying that all of it has been provided.

It should be noted that at the same time as interventions were being made on this question of privilege, the House was proceeding on a separate track on what was essentially the same matter.

Thus, on February 17, 2011, the House was debating an opposition motion ordering the production of the same documents demanded by the Standing Committee on Finance. In a subsequent vote on the motion, held on February 28, 2011, the House adopted the motion, thus setting a deadline of March 7, 2011 for the production of the documents in question.

Dealing first with the question of whether or not the House or its committees have the authority to order the production of documents, let me restate in part my April 27, 2010, ruling with respect to the production of documents related to Afghan detainees.

At the time I stated, at page 2043 of the Debates:

—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… Therefore, the Chair must conclude that it is perfectly within the existing privileges of the House to order production of the documents in question.

I also quoted House of Commons Procedure and Practice, Second Edition, at pages 978 and 979, which states:

The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the type of papers likely to be requested, the only prerequisite is that the papers exist—in hard copy or electronic format—and that they are located in Canada….

No statute or practice diminishes the fullness of the power rooted in the 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 and records.

With respect to the power of committees to order the production of documents, Standing Order 108(1)(a) is clear that they can “… send for persons, papers and records… ”. O’Brien and Bosc, at page 978, expands on this point:

The Standing Orders state that standing committees have the power to order the production of papers and records, another privilege rooted in the Constitution that is delegated by the House….

Thus, the power of committees of the House to order papers is indistinguishable from that of the House.

With these well-established privileges and principles in mind, and in order to assess properly whether or not the order flowing from the Standing Committee on Finance has been complied with, I undertook a review of what was tabled. The Chair was helped in this by the Committee’s Order, which was quite explicit in the information it sought, even going so far as to list the bills for which information was required. While the Chair does not judge the quality of documents tabled in the House, it is clear from a cursory examination of the material tabled that, on its face, it does not provide all the information ordered by the Committee.

While the Chair finds this in and of itself unsettling, what is of greater concern is the absence of an explanation for the omissions. At the very least, based on the indisputable right of the Committee to order these documents, this is required. Only then can the House determine whether the reasons given are sufficient or satisfactory. The need to provide reasons to the House is clear. On page 281 of Bourinot’s Parliamentary Procedure and Practice in the Dominion of Canada, 4th edition, it states:

But is must be remembered that under all circumstances it is for the House to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses.

The Chair has reviewed the Debates on this question, and while initially Cabinet confidence was cited as a reason not to produce any of the documents, despite this, the Government saw fit to partially comply with the Committee Order and a tabling of some material did eventually take place. Since then, no further reasons have been given as to why the balance of the documents should not or will not be tabled.

It may be that valid reasons exist. That is not for the Chair to judge. A committee empowered to investigate the matter might, but the Chair is ill-equipped to do so. However, there is no doubt that an Order to produce documents is not being fully complied with, and this is a serious matter that goes to the heart of the House’s undoubted role in holding the Government to account.

For these reasons, the Chair finds that there are sufficient grounds for finding a prima facie question of privilege in this matter.

Before I invite the Member for Kings–Hants to move his motion, however, the Chair wishes to explain the procedural parameters that govern such motions.

House of Commons Procedure and Practice, Second Edition, at pages 146 and 147 states:

In cases where the motion is not known in advance, the Speaker may provide assistance to the Member if the terms of the proposed motion are substantially different from the matter originally raised. The Speaker would be reluctant to allow a matter as important as a privilege motion to fail on the ground of improper form. The terms of the motion have generally provided that the matter be referred to committee for study or have been amended to that effect.

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 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.

With this guidance in mind, I will soon recognize the hon. Member for Kings–Hants so that he can propose his motion, but before he proceeds, I have a ruling on another matter, which I will deliver.

Later in the sitting, Mr. Brison moved that the question be referred to the Standing Committee on Procedure and House Affairs and that the Committee report its findings and recommendations to the House no later than March 21, 2011. After debate, the motion was agreed to.^[7] On March 21, 2011, the Standing Committee presented its Twenty-Seventh Report, in which it concluded that the Government`s failure to produce documents had impeded the House in the performance of its functions and constituted a contempt of Parliament.^[8] During Routine Proceedings on March 23, 2011, Mr. Brison moved concurrence in the Report and debate ensued. At the end of the time available that day for debate on the concurrence motion, the Speaker informed the House that debate on the motion would be rescheduled for another sitting.^[9] On March 25, 2011, the House debated and agreed to an opposition motion to the effect that it agreed with the findings of the Twenty-Seventh Report of the Standing Committee on Procedure and House Affairs and consequently had lost confidence in the Government.^[10] On March 26, 2011, the Fortieth Parliament was dissolved.