Financial Procedures / Business of Supply

Opposition motions: admissibility; order for the production of papers

December 10, 2009

Debates, pp. 7876-7

On December 10, 2009, Tom Lukiwski (Parliamentary Secretary to the Leader of the Government in the House of Commons) rose on a point of order to challenge the admissibility of a supply motion moved by Ujjal Dosanjh (Vancouver South) with respect to the production of documents relating to the detention of combatants by Canadian Forces in Afghanistan. Mr. Lukiwski argued that, if the motion were adopted, the result would be an order to the Government to produce a series of documents in their original and uncensored form. This, he argued, would contravene the law and conventions adopted by Parliament. He asked that the Speaker recognize that the motion exceeded long-standing conventions surrounding supply day motions. The Speaker also heard from other Members on the matter.^[1]

The Speaker delivered his ruling immediately. He made reference to the broad, absolute power of Parliament to order the production of papers and added that, in the circumstances, a motion to demand the production of papers was entirely in order. The question was whether such a motion could be considered on a supply day. The Speaker stated that the motion was in accordance with the practice with respect to supply motions. He noted that the motion could have been adopted by a committee and affirmed that the House can also do whatever a committee can do, and more. He accordingly declared the motion to be in order.

Decision of the Chair

The Speaker: I have carefully considered all the arguments that have been advanced. First, I should cite to hon. Members the citations that have been read by the hon. Member for Mount Royal in his argument, largely.

On pages 978-9 of O’Brien and Bosc, I will quote again:

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 that 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.

I go back also to page 136 of O’Brien and Bosc, to further this:

By virtue of the Preamble in 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. Maingot 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. This dovetails with the right of each House of Parliament to summon and compel the attendance of all persons within the limits of their jurisdiction.

Therefore, in the circumstances and on the face of it, a motion to demand the production of papers is entirely in order. The question is whether it can be done on a supply day, as suggested by the Parliamentary Secretary in his submission.

The Chair has intervened once on a supply day, to prevent the supply day from being used as a vehicle for restricting debate on a bill, because it was something that was allowed for in other parts of the Standing Orders and so on, and then fitted in there. However, I believe this motion, which is demanding that documents be tabled in the House, is something that could reasonably be requested on a supply day.

It is not a procedural motion in that sense. It is demanding the production of documents. Supply motions have called on the Government to do things. They have expressed House opinions on various things in the past and in my view, this one fits within that. Accordingly, in accordance with our practice in respect to supply days, I feel the motion is in order and will allow it to proceed.

It is unfortunate, if I may make this comment, that arrangements were not made in committee to settle this matter there, where these requests were made and where there might have been some agreement on which documents and which format would be tabled or made available to Members. How they were to be produced or however it was to be done, I do not know, but obviously that has not happened.

We now have this motion here, and it seems to me the House has the power to do what a committee can do and then some. A committee could have requested this and demanded the production of these materials. The House can also do whatever a committee can do and then some. Accordingly I feel the motion is in order and I will allow the matter to proceed.

Later that day, the House adopted the motion with an amendment to include additional documents.^[2]