Committees / Reports

Guidelines for report related to a question of privilege in committee

November 30, 2009

Debates, pp. 7386-7

On November 27, 2009, the Special Committee on the Canadian Mission in Afghanistan presented its Third Report to the House stating that the Committee believed that a serious breach of privilege had occurred and that Members’ rights had been violated through the intimidation of a Committee witness by the Government and by its obstruction and interference with the Committee’s work and with the papers that it had requested.^[1] On November 30, 2009, Paul Dewar (Ottawa Centre) rose on a question of privilege based on the Committee’s Report. He alleged that the Government had attempted to intimidate a witness prior to his testimony before the Committee by warning him that it did not accept the Law Clerk’s view that parliamentary privilege overrode the provisions of the Canada Evidence Act, thus instructing him on how he was to answer questions from Members of Parliament. Mr. Dewar added that the witness had been deprived of documents in his possession with a view to withholding them from the Committee. He deplored what he characterized as “the Government’s attempt to wilfully ignore a constitutionally enshrined right of Parliament”. He pointed out that by virtue of the Committee’s Report, the matter was properly before the House. The Speaker also heard from several other Members on the question of privilege.^[2]

The Speaker ruled immediately. He stated that the Report, as presented, was inadequate, in that it did not contain sufficient details for the Speaker to arrive at a decision on privilege; specifically, he noted the absence of a detailed outline of the alleged breach of privilege, the names of the individuals involved, which witnesses had allegedly been intimidated and what documents had or had not been delivered to the Committee. The Speaker concluded that, as the Report failed to meet the requirements of current practice, he could not determine whether there had been a prima facie breach of privilege.

Decision of the Chair

The Speaker: I thank hon. Members for their submissions on this point, but I think I have heard enough for the time being to deal with it.

I thank the hon. Members from all parties who made submissions on this point. We have before us today the Third Report of the Special Committee on the Canadian Mission in Afghanistan. The Report is very brief. I can read it again. It states:

That the Committee believes a serious breach of privilege has occurred and Members’ rights have been violated, that the Government of Canada, particularly the Department of Justice and the Department of Foreign Affairs and International Trade, have intimidated a witness of this Committee, and obstructed and interfered with the Committee’s work and with the papers requested by this Committee.

My ruling last week on the point raised by the hon. Member for St. John’s East was cited by the Parliamentary Secretary to the Minister of National Defence in his response to the request for a question of privilege to be dealt with. I will again cite the quotation that I used from House of Commons Procedure and Practice, Second Edition, page 151, which is also from Chapter 3 that everyone has been referring to today. It states:

If, in the opinion of the Chair—

—and this is the Chair of the committee—

—the issue raised relates to privilege (or if an appeal should overturn a Chair’s decision that it does not touch on 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 so on.

The point is that this Report, in my view, is inadequate. It does not provide the details on which the House can make a decision on privilege. One may be forthcoming from the Committee. The Committee is free to do this at another meeting and come in with a detailed report that meets the requirements of our practice, but in my view it has failed to do so in the Report that we have received today.

There are no names of any individuals involved. I understand the Committee is receiving more material as we are discussing this. I do not know when the Committee is meeting, but undertakings have been given that more material will be filed. The Committee is calling other witnesses.

It seems to me that we should have a report from the Committee that outlines in detail the alleged breach, what has or has not been tabled, which witnesses have been intimidated and which have not, and those sorts of things. These are not here in this Report and, in my view, they ought to be. Until they are, I do not think I can make a finding that there has been a breach of privilege.

I need the details provided to the House in a report. The Speaker then makes a finding on that report. That is the practice outlined in House of Commons Procedure and Practice. Then a motion can be moved.

Otherwise, as the Parliamentary Secretary pointed out, any committee can pass a motion like this, send something back here saying that it looks as though there has been a breach of privilege and ask the Speaker to make a finding and therefore in effect order an emergency debate that takes priority over other business of the House. It is important that if the Speaker is going to make a finding of a breach of privilege of Members of the House, there be a detailed report from the Committee indicating what the alleged breach is. We do not have that at the moment.

By saying no today, I am not saying there will not be a finding later if material is brought to the House, but in my view the Committee Report as it stands is inadequate for this purpose. It needs to have considerable further detail in it. I would hope that the Committee, in its deliberations, will come up with a list of things that it needs or that it feels are inappropriate and that it will get those in testimony from the witnesses whom it calls.

Therefore, when the information is available, I trust that the hon. Member for Ottawa Centre or other hon. Members who are members of the Committee will be back in the House with a report asking the Chair to make a ruling in respect of privilege with regard to that Report. I believe the Chair requires further information in accordance with our practice to make such a finding and cannot make it just because the Committee majority thinks there has been a breach without then providing some information on which the Speaker can base a finding of a breach of privilege of hon. Members.

I will leave the matter at that for the time being.

The Speaker gave a ruling on a related question of privilege on April 27, 2010.^[3]