44th Parl. 1st Sess.
November 23, 2021 12:15PM
- Nov/23/21 3:26:13 p.m.
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Mr. Speaker, the last time the House met was on June 23.
At that time, a serious question of privilege had been raised, because the Liberal government had defied the order of the House to table documents related to the National Microbiology Laboratory in Winnipeg.
On June 23, my colleague, the whip for the official opposition, was the first to inform the House of an act that is completely unacceptable for any parliamentarian. For the first time in our parliamentary history, the government used the judiciary to attack the legislative branch. For the first time, the government used the justice system to prevent an order of the House from being adopted.
I remember it like it was yesterday. I was looking at my iPhone, and I saw that there was a case involving the Attorney General of Canada versus you, Mr. Speaker. Your name was there. It seemed so unbelievable that I had to check with my esteemed colleagues on the Conservative leadership team three times to make sure that what I was reading was true. It was unbelievable, but unfortunately it was true. The government was taking the House of Commons to court to prevent it from implementing a decision that had been duly voted upon by members.
June 23 will therefore always be a sad day for all parliamentarians.
I therefore rise today to once again raise this important question of privilege regarding the fundamental right of the House of Commons to enforce this decision.
What we have seen is totally unacceptable. Why, for the first time in Canadian parliamentary history, did we see the government knocking on the door of the justice system to make sure the House of Commons could not do what it had to do? I will always keep in my memory the famous picture of the document I saw on my iPhone with the Attorney General's name versus the Speaker's name. It was totally unacceptable, but that is the tradition of the current Liberal government and we cannot accept any part of that inside this House.
I would like to quote page 81 of House of Commons Procedure and Practice, third edition:
The House of Commons enjoys very wide latitude in maintaining its dignity and authority through the exercise of its contempt power. In other words, the House may consider any misconduct to be contempt and may deal with it accordingly.
What follows is interesting:
Instances of contempt in one Parliament may even be punished during another Parliament.
In concrete terms, the Prime Minister's decision to dissolve Parliament for his own personal gain and vanity resulted in an almost identical Parliament, but at a cost of $600 million to Canadian taxpayers. All that for what amounted to a cabinet shuffle in the end. Dissolving Parliament does not kill a question of privilege.
I recognize that for many of us, our minds are still on the Speech from the Throne, which the Governor General just delivered, but I wanted to raise this question of privilege as soon as possible, bearing in mind your ruling on September 30, 2020.
Let me quote page 353 of the Debates, finding that the question of privilege that had been raised when the House opened on the third day of the session failed to meet the necessity for timeliness.
I raise this important question of privilege at the first opportunity as it concerns not only the official opposition members, but all parliamentarians here in the House. The current government failed to recognize that the House is more important than anything else when we talk about parliamentary debate, parliamentary democracy and the parliamentary rights of the people who are sitting in the House.
Let us recall the facts surrounding the infamous Winnipeg lab scandal.
In March, the then president of the Public Health Agency of Canada, Iain Stewart, was a witness at the Special Committee on Canada-China Relations, where its members were unsatisfied with his answers. On March 31, the committee ordered the agency to produce certain documents. The agency would only partly comply with the order.
On May 10, the committee issued another order to give the agency a second chance, but the agency failed to abide by the order at two more committee meetings.
On June 2, the House adopted the motion that the Conservatives, the official opposition, moved in the House. The motion called on the House to issue an order for these documents.
The agency again refused to comply fully. The then Minister of Health claimed she had referred the matter to the National Security and Intelligence Committee of Parliamentarians.
I therefore raised a question of privilege on June 16, which the Chair allowed.
The Chair, recalling Mr. Speaker Milliken's historic ruling in respect of the Afghan detainee documents, ruled that the House had every right to compel the production of documents.
The Chair also ruled that, contrary to that case, which arose from a recklessly drafted Liberal opposition motion, the House had taken the necessary steps to balance parliamentary responsibility with the protection of national security and to promote dialogue with the government on this issue.
As for the Liberals' attempt to sidestep the House order with a referral to the National Security and Intelligence Committee of Parliamentarians, you stated clearly that it did not fulfill the House's order.
In response, I moved a motion to find the agency in contempt and to order Mr. Stewart to appear at the bar of the House to receive on behalf of the agency the Speaker's admonishment, and to deliver the ordered documents. That motion was adopted by the House the following day.
On June 20, a day before he was due to appear at the bar, Mr. Stewart provided notice to the Attorney General, under section 38.01 of the Canada Evidence Act, that the agency ”was required to disclose of sensitive or potentially injurious information in relation to a proceeding before the House of Commons and a special committee.”
On June 21, Mr. Stewart appeared here, at the bar of the House of Commons, to receive the Speaker's historic admonishment on behalf of the agency.
However, the chair also received a letter from Mr. Stewart's counsel advising that Mr. Stewart was unable to produce the documents and as a consequence of his notice to the Attorney General, “statutory prohibition and disclosure remains in effect until either the Attorney General authorizes the disclosure or the Federal Court orders it.”
We unfortunately came to learn that in this case, the Attorney General was on the government's side and not on the side of Canadians or even the House of Commons.
Because the government was systematically refusing to hand over the documents set out in the order issued by the House, I raised a second question of privilege, and I would like to have that question examined again.
In the interest of time, I will need to refer members to the fuller submissions, by which I mean the House on June 7, June 15, June 21 and June 23, concerning these matters, along with submissions of the chief opposition whip on June 21 and June 23. Beyond that, there have been subsequent developments on this file that I also hope to highlight.
On June 21, the then government house leader was the hon. member for Honoré-Mercier. I want to pay all my respects to my former counterpart. He wrote to the Chair and notified the House that, in the government's opinion, the House's power to send for persons, papers and records was subject to implicit statutory limitations.
To resolve the impasse, he proposed two options that were not forthcoming in response to any of the four earlier motions, including my first question of privilege. I will come back in a few minutes to those so-called options. Additionally, unknown to the chamber at the time, counsel, on the Attorney General's behalf, simultaneously applied to the Federal Court for an order under the Canada Evidence Act to prohibit disclosure of the remaining information.
That was done without the knowledge of the House of Commons.
We were then served with court documents. On June 23, the media reported on the government's Federal Court application, bringing it to public attention.
In response to several points of order on this matter, you stated the following in the House, and I quote from page 9062 of the Debates:
I want to confirm that the argument is that the legal system does not have any jurisdiction over the operations of the House. We are our own jurisdiction. That is something we will fight tooth and nail to protect, and we will continue to do that.
That is exactly what every parliamentarian should bear in mind, what every person who is duly elected by the people should know and bear in mind, especially those who have the privilege of exercising the supreme authority, in this case with respect to the executive. These people must bear in mind that they are first and foremost members elected by the people, that they are first and foremost accountable to the people and that, above all, they should not have shown contempt for the House of Commons as they did.
Fortunately, Mr. Speaker, you were there at the time, and you made the decisions and provided arguments that were quite appropriate in this terrible situation when the House of Commons was being attacked on all sides by the Liberal government.
Later that afternoon, the law clerk appeared as a witness before the health committee. In response to questions, he noted that, to his knowledge, the government's Federal Court application was an unprecedented court proceeding concerning a document production order. Then, he was instructed by the Speaker to challenge the Federal Court jurisdiction on the basis of parliamentary privilege, which vests in the House exclusive authority on that matter.
More troubling still is the fact that the government took advantage of the summer break to launch a direct attack on all 338 members of the House of Commons, including themselves, as it happens.
It was totally disrespectful the way the government at the time attacked the House of Commons while we were not sitting. By the way, just by a miracle, the government decided to postpone and shut down everything, and prorogue the House of Commons with an unnecessary election. This is the Liberal tradition, and never has any government gone so low in attacking the House of Commons.
A hearing on that motion was later scheduled for September 16 and 17, but when the Prime Minister called his cynical and self-serving general election, the government discontinued entirely its federal court application given that the House order fell with the dissolution of Parliament.
I want to share with the House how masterfully the Speaker's counsel, at paragraphs 25 to 29 of the motion, demolished the government's claim that the Canada Elections Act applies to the House order. It said:
“Only Parliament itself has the authority to abrogate, modify or limit parliamentary privilege. Any intention by Parliament to [do] so must be evidenced by clear and incontrovertible means. Section 38 of the [Canada Evidence Act] discloses no such intention. To the contrary, the clear intent of [section] 38 is that it does not apply to the House of Commons and its committees, which do not fall under the definition of ‘proceeding’ that is central to the [Canada Evidence Act] process.
“‘Proceeding’ under [section] 38 of the [Act] is defined to mean ‘a proceeding before a court, person or body with jurisdiction to compel the production of information’. Had Parliament intended for this definition to include the House and/or its committees, and thereby to abrogate, modify or limit its privilege to send for persons, papers or records, a clear and incontrovertible intention to do so would have been required. No such intention was demonstrated or expressed.
“Further, during debate in the House of Commons on the Bill that introduced [section] 38 into the [Act], the definition of ‘proceeding’ was amended with the explicit stated purposes, as confirmed by [Stephen Owen] the then-Parliamentary Secretary to the Minister of Justice and Attorney General of Canada ‘of clarifying [Parliament’s] intention that parliament’s privilege to send [for] persons, papers and records not be affected by this legislation’.
“The earlier proposed definition of the term ‘proceeding’ in the Bill would have applied the [Canada Evidence Act] process to Parliament by incorporating the definition of ‘judicial proceeding’ set out in [section] 118 of the Criminal Code that expressly included a proceeding ‘before the Senate or House of Commons or a committee’. The amendment to the Bill confirms Parliament’s intention that [section] 38 of the [Canada Evidence Act] not affect parliamentary privileges, including the power to send for persons, papers and records. The amendment was made specifically to recognize and affirm that parliamentary privilege was not affected by this legislation.
“Accordingly, the [Canada Evidence Act] process has no application to the House of Commons’ privileges, including its power to send for persons, papers and records, which remains unfettered.”
That was a very long quote, but it explains exactly what we are here for today. I would like to express my appreciation for those who, on behalf of all parliamentarians, chose to do the right thing to protect the right of all members, the right of the House of Commons and our privilege, which we must vigorously defend against people who irresponsibly take it upon themselves to attack Parliament's authority. Unfortunately, those people are currently the Government of Canada, thirty-odd members of which find themselves in an incredible conflict of interest. Those people participated in a vote, and they lost, but they are challenging that decision in court even though they themselves are members of Parliament. As the documents submitted to the Federal Court have made abundantly clear, such actions are totally unacceptable.
I would like to note the questionable approach, to put it politely, behind the legal arguments the government has used throughout this entire saga. For one thing, it used the same sentence with two different possible meanings depending on its point of view. In Federal Court, the Attorney General stated that “a court, person or body with jurisdiction to compel the production of information”, as set out in section 38 of the Canada Evidence Act, includes orders of the House of Commons and its committees.
However, beforehand, the government had taken the view that the same phrase, that is, “a court, person or body with jurisdiction to compel the production of information”, as it appears in paragraph 8(2)(c) of the Privacy Act, does not capture parliamentary production orders.
My colleague, the hon. member for Wellington—Halton Hills, has often pointed to that exemption in the Privacy Act for a government to disclose information.
However, on May 10, Christian Roy, executive director and senior general counsel at the Department of Justice, told the Special Committee on Canada-China Relations:
Basically, we recognize the jurisdiction of committees to request documents and to call witnesses. That said, in terms of paragraph 8(2)(c), we're talking about a jurisdiction to compel. There's a difference of opinion here. We don't recognize the committee's jurisdiction to compel in this area.
Either the sentence includes the House and its committees or it does not. It cannot be both. They want to see which way the wind is blowing. In cruder terms, a person who is two-faced has twice as many cheeks to slap. That is exactly what the government was doing.
Turning back to the Speaker's Federal Court motion, the stakes of the matter are very well articulated at paragraphs 30 and 31.
“The present Application seeks to involve the Federal Court in an impermissible intrusion upon the independence of the legislative branch, which would violate the fundamental constitutional principle of separation of powers.
“The concern is particularly acute here, where the Attorney General of Canada seeks to have the court prevent the disclosure of documents requested by the House of Commons ‘except as previously authorized’ by the government. This is antithetical to the House of Commons’ central role of holding government to account and strikes at the core of parliamentary privilege that serves to protect the House of Commons’ ability to fulfill its constitutional functions without outside interference.”
Bearing in mind this clear and compelling argument, this is where a lawyer might say, “I rest my case.”
However, there are other elements we must take into account. The fact that the government openly defied the authority of the House of Commons constitutes a prima facie attack on Parliament and its most fundamental rights.
To fully understand what is going on, we must gauge the magnitude of the utterly unacceptable act this government committed. That calls for a little history lesson. Let us go way back in time so we can contextualize today's debate.
This incident happened in 1704 in England's House of Commons and is known as Ashby v. White.
It asserted that “any attempt to challenge its jurisdiction would amount to a breach of privilege,” as explained at paragraph 16.2 of the 25th edition of Erskine May.
Subsequently, in Stockdale v. Hansard, a case well known in the law of parliamentary privilege in relation to the House's right to print papers, a select committee, appointed by the House of Commons of the United Kingdom to consider this litigation, recommended at paragraph 78 of its report:
That by the law and privileges of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges; and that the institution or prosecution of any action, suit, or other proceedings, for the purpose of bringing them into discussion or decision before any court or tribunal, elsewhere than in Parliament, is a high breach of such privilege, and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon.
This recommendation was subsequently adopted by the Commons on May 30, 1837.
In the initial litigation, Messrs. Hansard lost. As a result, as paragraph 16.3 of Erskine May explains, the House “agreed that, in case of future actions, the firm should not plead and that the parties should suffer for their contempt of the resolutions and defiance of the House's authority.”
All of that is to say that the very action of openly challenging the House's authority in court is, in my view, a contempt of the House with established precedents backing up that perspective.
As I said, that was the first time in the history of Canada's Parliament that a government did such a thing, and it is appalling. Worse still, we are clearly fully aware that this remains a precedent buried deep in our British parliamentary system—
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- Nov/23/21 3:48:45 p.m.
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Mr. Speaker, first of all, I can assure you that it is not my face that is speaking; I speak when I have something to say. However, I appreciate the fact that you are looking closely at the reactions of members of the House of Commons.
I want to say to my counterpart that I welcome him in his new role. I am a veteran here because I was here before. I am joking because I know that he has a lot of experience, more than me, and I appreciate the fact that he is the new House leader. I am sure we will have a lot of fun.
That said, I welcome everybody in the House and invite them to be very attentive to what we have to say, because what we are talking about is why we are here in the House of Commons. The member raised a point of order, but I just answered that point of order a few minutes ago. I invite him to read again what I had to say. I am sure he will find an answer to his point of order.
I will quickly summarize what I want to say about that. The argument that the government will likely raise is that it made the House an offer, but that offer does not stand up, especially since the government itself revoked it.
There are many other elements to address. Most of them were submitted to the court under your authority, meaning the authority of the House of Commons, when this government decided to take legal action against the House. We did not know about these elements before the House rose on June 23.
That is why we intend to remind the House of the key elements of this situation. Never in the history of Canada has a government used the justice system to diminish the role of the House of Commons and prevent the House from doing its job. That is a very serious concern because Canadians want to know what happened at the National Microbiology Laboratory in Winnipeg.
Never in the history of Canada has the executive branch used the judiciary to attack the legislative branch. However, there is an example of that in modern history. It happened in July 1974 when a document released at 1600 Pennsylvania Avenue in Washington triggered the Watergate scandal.
It was United States v. Nixon.
The President of the United States went to court to prevent elected representatives from Congress from accessing certain documents. That is exactly what the Canadian government is doing right now, and I would like to remind it of one thing: the President of the United States left office after that ordeal.
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- Nov/23/21 5:45:31 p.m.
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Mr. Speaker, on the point of order raised by my government counterpart, I want to raise the fact that this is exactly what the Speaker said just two minutes ago, that we have to address it correctly. He said, quoting from memory, “I am sure the hon. member can do that.” Let the member express himself. I am sure he will follow the rules established by the Speaker of the House.
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