44th Parl. 1st Sess.
November 23, 2021 12:15PM
- Nov/23/21 4:02:40 p.m.
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Mr. Speaker, let me begin by congratulating you on your election as Speaker. As we all know, it comes with a tremendous amount of responsibility to conduct oneself in an impartial manner, and I have the utmost confidence in your ability to do that. Congratulations once again.
I am rising on a question of privilege today concerning the very troubling allegations published this month respecting the Clerk of the House. I am sure we have all watched or read Ashley Burke's reporting on these matters. It was based on at least 10 different credible sources as well as primary documents, but it is important to put the most pertinent details on the record of the House.
Broadly speaking, the allegations fall into one of two distinct but no less troubling categories. One concerns a management style that has led to a rapid loss of top talent and deep experience from the table, and the other concerns demonstrations of partisanship through the Clerk's comments and actions.
I understand that some of the complainants' letters, cries for help really, have even recently made it into some Parliament Hill inboxes, and it is my respectful view that all told, these allegations amount to a prima facie case of privilege, which the House must address urgently.
I will be focusing on the partisanship allegations, but I cannot turn a blind eye to what the CBC confirmed. Three senior figures at the table took sick leave and then early retirement, while a fourth senior official is now on sick leave, owing to the Clerk's management style.
According to CBC, Colette Labrecque-Riel—
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- Nov/23/21 4:05:41 p.m.
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Mr. Speaker, as I stated at the outset, the allegations are extremely disturbing and troubling. If we are going to go back and forth on this, I think—
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- Nov/23/21 4:12:44 p.m.
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Mr. Speaker, the arguments that have been made are profound on the part of the privilege and the rights of members. The Speaker will recall that some very serious allegations have been made that I believe breach the rights and privileges of members, not the least of which is a table officer acting in a partisan manner.
I am not attempting to bring those issues in a manner that exacerbates the kinds of challenges that exist. What I am trying to do is lay out the facts as we now know them so the Speaker can make a prima facie case of the rights and privileges of the members being dealt with.
At the end of what I am presenting, I offer an option and a solution that the Speaker can act on, but in the absence of presenting the facts as we know them and the facts as they came out, it is awfully difficult for me to talk in terms that would give the Speaker a better understanding to make a decision that is in the best interests of the House. We are dealing with not just the rights and privileges of our members, but also the confidence in the ability of our democracy and our democratic institutions to function in the manner in which they should.
Some of those accusations, as salacious as they are and as uncomfortable as they may be, are very important points I need to make in this discourse to the Speaker. I would ask for some latitude with that and ask that I continue to lay these out not as a way to disrespect a certain individual but to present the information that is in front of me, and that has been presented to all of us as members, as it relates to our rights and privileges.
I will continue in the manner in which I started, which is to lay out this case to suggest that the rights and privileges of members have been breached as they relate to the functioning of our democracy.
As I continue, according to CBC, Colette Labrecque-Riel, a former clerk assistant, wrote to the Speaker that—
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- Nov/23/21 4:21:32 p.m.
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Mr. Speaker, before I continue, I would like to ask for unanimous consent to table copies of the relevant PCO documents that were disclosed through access to information. I would like unanimous consent for that.
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- Nov/23/21 4:22:04 p.m.
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Mr. Speaker, without laying out properly the facts of this case as we know them, it is awfully difficult to present a prima facie case, but regrettably a cloud has been placed upon the House administration, and it certainly has given Conservatives cause to reflect on what extent to which we can collaborate. In fact, the same paranoia is, as we have seen, among House officials themselves.
In my view, the House could and should refer this whole mess to the procedure and House affairs committee for full and proper investigation. As much as some of the reactions of the media have referred to some secret external review, it has been completely uncontested in the reporting that this review has never considered any of the partisan revelations that have come to light.
To that end, we should bear in mind the words of Mr. Speaker Milliken's February 1, 2002 ruling, at page 8582 of the Debates, where he said:
...in view of the gravity of the matter, I have concluded that the situation before us where the House is left with two versions of events is one that merits further consideration by an appropriate committee, if only to clear the air.
Surely, when it appears that perhaps one side is not aligned with this, all sides should agree that the air needs to be cleared here. That is why the Conservatives last week asked for the Liberals to release all correspondence and records they had with the clerk so we could see whether the allegations were true or just how big that pipeline was, yet the Liberals have not been forthcoming to this point, which speaks volumes. That is why stronger tools are now needed to clear the air.
A parliamentary committee is a strong vehicle to do just that, as Mr. Speaker Milliken ruled on October 15, 2001, at page 6085 of Debates:
There is a body that is well equipped to commit acts of inquisition, and that is the Standing Committee on Procedure and House Affairs, which has a fearsome chairman, quite able to extract information from witnesses who appear before the committee, with the aid of the capable members who form that committee of the House.
The House must stand up for its own dignity and self-respect. If you find a prima facie case of privilege, Mr. Speaker, I am prepared, as I said earlier, to move the appropriate motion for a committee study. This is the only way, I am afraid, that the cloud can be cleared and these foundation-shaking allegations can be either confirmed or purged so we can get to the real business of Parliament.
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- Nov/23/21 5:32:38 p.m.
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Mr. Speaker, it is clear by the discussions today that there was a lot of unfinished business in Parliament as a result of the election and clearly there is new business as well. When the House began its summer adjournment, the Chair had before it a question—
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- Nov/23/21 5:33:34 p.m.
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Thank you, Mr. Speaker. This is in relation to a letter and a question of privilege related to the 43rd Parliament, which I wrote to you about, and I rise today just to be perfectly clear.
When the House began its summer adjournment, the Chair had before it a question of privilege, which the hon. member for Leeds—Grenville—Thousand Islands and Rideau Lakes had raised on June 10, with respect to the second report of the Standing Committee on Access to Information, Privacy and Ethics that had been presented to the House that morning. The then government House leader's parliamentary secretary told the House that he would come back within a week with a response, but the Liberals remained perfectly silent throughout June.
Before a ruling could be delivered, the Prime Minister called an unnecessary federal election in pursuit of his own ambitions for power. By rising today, I am seeking to revive this question of privilege.
As you recently heard from my House leader, Mr. Speaker, it is a well-established principle that one Parliament may address a contempt that was committed against one of its predecessors. He also spoke about importance of raising this matter today in keeping with the spirit of your ruling from last autumn.
Since there has been some turnover in the membership of the House since June, I will give a recap of the issues raised in the original question of privilege.
Very extensive submissions were put forward on June 10, so I would refer the Chair to those including—
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- Nov/23/21 5:36:01 p.m.
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Mr. Speaker, again, I would refer you, in keeping with the spirit of your ruling from last autumn, with respect to these issues. In any event, members can be reassured that my comments will be much shorter than the two hours or so of submissions that were made back in June.
On March 25, this House adopted an order requiring the attendance of three witnesses before the ethics committee: Rick Theis, the Prime Minister's director of policy and cabinet affairs, was to appear on March 29; Amitpal Singh, the Deputy Prime Minister's policy adviser, was to appear on March 31; and Ben Chin, the Prime Minister's senior adviser, was to appear on April 8. The order also contemplated that the Prime Minister could appear on behalf of any or all of those individuals. In the end, as confirmed in appendix A of the second report, none of them appeared before the ethics committee.
On page 82 of the House of Commons Procedure and Practice, third edition, various categories of known contempts of Parliament are noted, including, “without reasonable excuse, failing to attend before the House or a committee after being summoned to do so” and, “without reasonable excuse, disobeying a lawful order of the House or a committee”.
Parliamentary Privilege in Canada, second edition, at page 239, outlines the importance of treating Mr. Theis, Mr. Singh and Mr. Chin's disregard of the March 25 order of the House as contempt. It states:
Disobedience to rules or orders represents an affront to the dignity of the House, and accordingly the House could take action, not simply for satisfaction but to ensure that the House of Commons is held in the respect necessary for its authority to be vindicated. Without proper respect, the House of Commons could not function.
A moment ago I quoted Bosc and Gagnon's caveat of “without reasonable excuse”. I would argue that could be addressed very quickly considering that none of the three witnesses offered any excuse for their absences. I do acknowledge that two cabinet ministers wrote to the ethics committee's chair to indicate they would appear on behalf of the witnesses, but that does not constitute an excuse from the witnesses personally. In the alternative, I would say it does not amount to a reasonable excuse.
In the present case, it is quite clear the House adopted an order and the order was breached completely, since there was no effort by the witnesses to comply with it in any way, nor was any excuse advanced by them to be weighed by the House or for the committee to assess and report its findings.
I now wish to turn to the government's role in preventing Mr. Theis, Mr. Singh and Mr. Chin from appearing as witnesses at the ethics committee. The government has freely admitted to this course of conduct, both in advance and at the time of the scheduled appearances. In his remarks to the House on March 25, the then government House leader said, at page 5234 of the Debates, “I say here today that ministers will instruct their staff not to appear when called before committees and that the government will send ministers instead to account for their actions.”
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- Nov/23/21 5:39:59 p.m.
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Mr. Speaker, as I said at the onset, there was an opportunity for the government House leader to respond. He had indicated to Parliament that he would respond within a week of the point of privilege being presented by the member for Leeds—Grenville—Thousand Islands and Rideau Lakes. The government House leader did not respond, and in the spirit of a ruling that you made last autumn, it was suggested and ruled upon that at the earliest convenience of the House reconvening, a point of privilege could be raised from the previous point of privilege. That is the basis upon which I am presenting this point of privilege, and I believe, in the spirit of what you decided, that I should continue with it.
In advance of the committee's March 29 meeting, the then government House leader sent a letter to the chair of the ethics committee, further to his statement to the House the week before, writing, “Accordingly, Mr Rick Theis, Director of Policy to the Prime Minister, has been instructed to not appear before the committee. In his place, I will attend the meeting on behalf of the government on Monday, March 29th.”
I would add that the ethics committee did not accept the then government House leader as a substitute witness in satisfaction of the order. Indeed, the committee, at its March 29 meeting, adopted a motion that states, “in relation to its study on questions of conflict of interest and lobbying in relation to pandemic spending, the committee invite [the minister] to appear.” He was treated as a separate witness, invited independently of and without any link to the March 25 House order.
When the then government House leader appeared at the committee, he said, at page 13 of the evidence, “Based on the instructions I gave the other day, it was clear to Mr. Theis and other individuals that they wouldn't appear before committees and would be replaced by the appropriate ministers”.
The minister even acknowledged, at page 8 of the evidence, that this was an unsatisfactory arrangement to the majority of the House, when he said, “I am aware that some of the members of this committee would rather be hearing from a staff member from the Prime Minister's Office, Mr. Rick Theis, but as I told the House last week and I want to make clear again, we fundamentally disagree with the decision”.
The then associate minister of finance would go on to write the ethics committee chair similar letters in advance of Mr. Singh's March 31 scheduled appearance and Mr. Chin's April 8 scheduled appearance.
A few moments ago, I referred to Bosc and Gagnon itemizing, at page 82, a list of known contempts of Parliament. I would add the following two, which have particular bearing here: “interfering with or obstructing a person who is carrying out a lawful order of the House or a committee” and “intimidating, preventing or hindering a witness from giving evidence or giving evidence in full to the House or a committee”. Bosc and Gagnon add, at page 1080, “Tampering with a witness or in any way attempting to deter a witness from giving evidence may constitute a breach of parliamentary privilege.”
Quite clearly, Messrs. Theis, Singh and Chin were obstructed, deterred, prevented from and maybe even hindered in their ability of carrying out a lawful order of the House of Commons. Parliament's right to hear from the witnesses it has chosen, without obstruction, has been consistently asserted, dating back to February 21, 1700, when the English House of Commons adopted a resolution that said:
That if it shall appear that any person hath been tampering with any Witness, in respect of his evidence to be given to this House, or any Committee thereof, or directly or indirectly hath endeavoured to deter or hinder any person from appearing or giving evidence, the same is declared to be a high crime and misdemeanour; and this House will proceed with the utmost severity against such offender.
Much more recently, in Mr. Speaker Milliken's highly celebrated ruling on Afghan detainee documents, on April 27, 2010, he made some less well-remembered comments on witness matters, including, at page 2041 of the Debates, “the procedural authorities are clear that interference with witnesses may constitute a contempt.”
Beyond the matter of the government's so-called instructions at page 13 of the ethics committee's March 29 evidence, the then government House—
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- Nov/23/21 5:46:07 p.m.
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Mr. Speaker, respectfully, it is difficult to sum up this question of privilege if the facts are not laid out and if the Chair is not reminded of some of the points that were brought up.
In the first intervention on this question of privilege as it related to the previous Parliament, the member for Leeds—Grenville—Thousand Islands and Rideau Lakes went on for two hours about this, laying out foundationally where the privilege had been broken. There is a need, respectfully, to summarize for the Chair exactly what the basis of this breach of privilege is. I would ask for some indulgence on this because it would be awfully difficult for me to go to the back end, as was the previous case, and really lay this out.
I will note that when the explanation was made to the Chair as to why it was important to lay out these facts in addition to what was not dealt with in the last Parliament and the Speaker's own spirit of the ruling that it be presented at the first possible opportunity, that is precisely what I am doing here. I want to thank the Speaker for that.
Much more recently, in Mr. Speaker Milliken's highly celebrated ruling, which I will repeat because this is the point where I was cut off, on the Afghan detainee documents on April 27, 2010, he made some much less well-remembered comments on witness matters, including at page 2041 of the Debates, where he stated, “the procedural authorities are clear that interference with witnesses may constitute a contempt.” Beyond the matter of the government's so-called instructions, at page 13 of the ethics committee's March 29 evidence, the then government House leader made the claim, “ministerial responsibility means that a minister can replace an employee who reports to the minister, not to Parliament.” That is just not so. In fact it is, in my view, a gross misstatement of several constitutional principles. Ministerial staff enjoy no special status when it comes to being summoned as a witness.
Page 981 of Bosc and Gagnon states quite clearly, “The Standing Orders place no explicit limitation on this power. In theory, it applies to any person on Canadian soil.” While very limited categories of persons do have immunity from appearing, the Law Clerk and Parliamentary Counsel advanced the point that there is no immunity for political staff when they appeared before the ethics committee on April 12 and the committee thought fit, in appendix A of its second report, to include a summary of the evidence:
Mr. Dufresne stated that political staff and public servants have no immunity, by virtue of their positions, from requests to testify before parliamentary committees. He also suggested that the topics of discussion and the different roles that ministers and political staff play have been factors for deciding which person is the more appropriate witness to testify on a given topic.
In 2013, the United Kingdom Parliament's joint committee on parliamentary privilege considered a government green paper on parliamentary privilege, which, among other things, asked—
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- Nov/23/21 5:49:49 p.m.
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Mr. Speaker, I will refer you to the two-hour presentation from the member for Leeds—Grenville—Thousand Islands and Rideau Lakes. I will also, with respect, sum up what the prima facie case is here.
It is my respectful submission that seven prima facie contempts have been made here: One concerns each of the three witnesses who failed to appear before the ethics committee, one concerns the government's instructions to each of the three witnesses to disobey an order of the House of Commons and, finally, one concerns the misleading or prevaricating evidence given by the member for Waterloo to the two committees.
I had not had an opportunity until this point to lay that out. I will again, Mr. Speaker, refer you to the member for Leeds—Grenville—Thousand Islands and Rideau Lakes.
I have presented two points of privilege today. In fact, I believe that my privilege as a member to present these points of privilege has been violated. I have been interrupted many times during circumstances where I have been presenting very factually the cases as they related to the previous point of privilege and to this point of privilege.
I will turn to you, Mr. Speaker, as the guardian of the rights and privileges of this Parliament because I know that a lot rests on your shoulders. My grievances here are not some partisan Liberal or Conservative dispute. They are far more fundamental than that. For those at the heart of the balance between the legislature and the executive in this case, it is about more than party politics. The centuries of parliamentary and constitutional evolution to which we are the inheritors centre on the struggle between the King and parliament. In the end, parliamentary supremacy was established as a bedrock principle of our democracy. From time to time, we are called upon to speak up for and defend these ancient but utterly critical principles of the democratic system that we enjoy as Canadians. I know that you will make the right decision in this case.
As uncomfortable as these situations are for the government, it is paramount that we defend our democracy and that we defend our democratic institutions. You are the guardian of that, Mr. Speaker. It is for that reason I rise today, not just on the other issue, but on this one as well. I ask that you defend those principles.
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