Committees / Witnesses

Evidence: alleged intimidation of public servant

November 26, 2009

Debates, p. 7239

On November 26, 2009, Jack Harris (St. John’s East) rose on a question of privilege. He alleged that the Government had suppressed evidence that was to be presented to the Special Committee on the Canadian Mission in Afghanistan.^[1] The Committee had intended to use its powers to call for persons and papers in order to obtain the evidence in question which had been suppressed by the Government under sections 37 and 38 of the Canada Evidence Act. The Committee had obtained advice from the Law Clerk of the House of Commons to the effect that parliamentary privilege overruled these sections of the Act and that witnesses were therefore not prevented from testifying and from providing documents to the Committee. The Committee had accordingly called Richard Colvin, a senior diplomat, to give evidence. At issue was an e-mail sent to Mr. Colvin by his employer, the Department of Foreign Affairs and International Trade, advising him that the Government did not accept the opinion of the Law Clerk and counselling him to conduct himself in accordance with the Government’s interpretation of the Canada Evidence Act. Mr. Harris argued that such action constituted contempt of Parliament and a clear violation of Members’ privileges in that it had attempted to intimidate the witness and to interfere with and obstruct his carrying out the lawful order of the Committee. Tom Lukiwski (Parliamentary Secretary to the Leader of the Government in the House of Commons) noted that a motion had been adopted by the Committee to provide documents the previous day and that the response from the Government was forthcoming.^[2] Other Members also spoke to the question of privilege.^[3]

The Speaker ruled immediately. He stated that, in the absence of a report from the Committee, there was no question of privilege properly before the House. Since the witness in question appeared before a committee of the House, the Speaker concluded that it was for the Committee to determine whether its privileges or those of its Members had been breached and to report the fact to the House before he could rule on the matter.

Decision of the Chair

The Speaker: I have heard enough on this point.

I would like to thank the hon. Members who raised this issue, especially the hon. Member for St. John’s East, whom I thank for his interventions on this.

In my view this is not a matter of privilege for the House at this time, and I say, “at this time”. It may become one.

The witness in question is testifying before a committee of this House, not before the House. The question of privilege, in my view, is one that should be raised in the Committee. The Committee has full power to decide whether or not its privileges have been breached and it will want to do so when it sees what information is submitted by the witnesses to the Committee.

They may not have had all the papers with them on the day they appeared, but they may be tabled later before the Committee or brought to the Committee later. The Committee can decide whether or not it has received what it was entitled to receive and whether or not there has been a breach of its privileges, and it can then present a report to the House.

If a report comes to the House, it is up to the Speaker to decide whether that report then allows a Member to raise a question of privilege arising from the report, which will then get priority treatment in this House as befits a question of privilege.

I refer hon. Members to pages 151-2 of O’Brien and Bosc, and this is in committee, where it states:

If, in the opinion of the Chair, the issue raised relates to privilege… the committee can proceed to the consideration of a report on the matter to the House. The Chair will entertain a motion which will form the text of the report. It should clearly describe the situation, summarize the events, name any individuals involved, indicate that privilege may be involved or that a contempt may have occurred, and request the House to take some action. The motion is debatable and amendable, and will have priority of consideration in the committee. If the committee decides that the matter should be reported to the House, it will adopt the report which will be presented to the House at the appropriate time under the rubric “Presenting Reports from Committees” during Routine Proceedings.

Once the report has been presented, the House is formally seized of the matter. After having given the appropriate notice, any Member may then raise the matter as a question of privilege. The Speaker will hear the question of privilege and may hear other Members on the matter, before ruling on the prima facie nature of the question of privilege. As Speaker Fraser noted in a ruling, “… The Chair is not judging the issue. Only the House itself can do that. The Chair simply decides on the basis of the evidence presented whether the matter is one which should take priority over other business”. Should the Speaker rule the matter a prima facie breach of privilege, the next step would be for the Member who raised the question of privilege to propose a motion asking the House to take some action.

In my view this is clearly a matter that the Committee can consider. If it decides that its privileges and its Members’ privileges have been breached, it can report the matter to the House and we can deal with the matter when that report arrives here in the Chamber.

But in my view the privileges of the House itself at this moment have not been breached. Possibly there has been a breach in the Committee, I am making no judgment on that matter, but when the Committee presents a report, I will hear argument on it if necessary and give a ruling in accordance with practice at that time.

However, I believe it would be premature for the Speaker of the House to decide a matter that is currently before a committee, and has not come back to the House from the Committee except in submissions by the hon. Member. The Committee will have to decide on its own initiative whether or not the privileges of the Committee or of its Members have been breached by what has transpired.

We will leave the matter there for the time being and move on at this point to Orders of the Day.

The Special Committee on the Canadian Mission in Afghanistan presented its Third Report to the House on this matter and regarding its request for the production documents,^[4] and a question of privilege was raised by Paul Dewar (Ottawa Centre) on November 30, 2009 based on the Report. The Speaker stated that the Report did not contain adequate information regarding an alleged breach of the Committee’s privileges and therefore he could not rule at that time.^[5] The Speaker delivered a ruling on a related question of privilege on April 27, 2010.^[6]