UPDATED: BreachOfPrivilegeWatch: A little background reading

Attention procedural junkies: Get ready for what could be a fascinating exercise in parliamentary democracy. Ordinarily, Friday is a slow and leisurely day, both on the Hill and in the Chamber. 

That, the committee report to the House that it 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. Therefore this committee reports the breach to the House so that it can consider the matter.  

Mr. Speaker, I rise on a question of privilege relating to the government's action in suppressing evidence that was to be presented to a committee of the House. It is a question of privilege based on all members of the House. I am not a member of the committee but I will read the question of privilege and should you agree that it meets the prima facie test, I would be prepared to make the appropriate motion.

    As we know, questions of privilege arise when members or the House of Commons as an institution have been prevented from carrying out their duties. These privileges include freedom of speech, freedom from obstruction, interference and intimidation, and the right to institute inquiries, call witnesses and demand papers. So important are these privileges of the House that they are rooted in the Constitution and contained in section 18 of the Constitution Act, 1867.

    The Special Committee on the Canadian Mission in Afghanistan has for some weeks been attempting to exercise its parliamentary functions in relation to the hearings and allegations of detainee abuse in Afghanistan. Evidence that was submitted to the Military Police Complaints Commission on the same issue was suppressed by the government under the provisions of sections 37 and 38 of the Canada Evidence Act.

    The special committee wanted to obtain this evidence using its powers to call persons and papers and so it called forward Mr. Richard Colvin, a senior diplomat, to testify. In order to assist in its work, the committee first called Mr. Rob Walsh, law clerk for the House of Commons, to testify and advise the committee.

    Mr. Walsh confirmed the privileges of Parliament in relation to hearing evidence, requesting testimony and receiving documents. He confirmed that the Canada Evidence Act did not prevent Mr. Colvin or any other witness from testifying and providing documents to support that testimony. He advised that parliamentary privilege overrules sections 37 and 38 of the Canada Evidence Act.

    On the morning of Mr. Colvin's proposed testimony to the Special Committee on the Canadian Mission in Afghanistan, he received an email from a representative of his employer at the Department of Foreign Affairs and International Trade. In this email, the Department of Foreign Affairs and International Trade advised Mr. Colvin in writing that the Government of Canada did not accept the law clerk's legal opinion on parliamentary privilege. It states that, "The Government of Canada does not share the Clerk's view of the effect of the laws adopted by Parliament on parliamentary proceedings and, as a public servant, we trust that you will conduct yourself according to the interpretation of the Government of Canada. Should there be any concerns expressed by members of the committee, those concerns should be referred to government counsel".

    This email makes it clear that the Government of Canada does not accept Parliament's privileges and will not abide by the law clerk's confirmation of these privileges.

    The Government of Canada in this email attempts to intimidate a witness prior to his testimony in front of the committee. The government also instructs the witness on how he is to answer questions from members of Parliament. As his employer, the Department of Foreign Affairs and International Trade, the government, is in a position of power over Mr. Colvin and this is a clear attempt to intimidate him.

    In 2005, the Federal Court of Appeal ruled that parliamentary privileges, such as freedom of speech and freedom from intimidation and obstruction, extend to witnesses testifying in committees.

    In addition, the official from the Department of Foreign Affairs and International Trade appears to expect that members of Parliament must address their concerns about the issue of privilege to the Department of Justice rather than to their own counsel.

     This is a very disturbing situation and I am perturbed that the Department of Justice and the Department of Foreign Affairs believe that all concerns by MPs on the admissibility of documents to Parliament should be referred by the witness to Department of Justice lawyers. These are lawyers who have already stated that they do not believe parliamentarians have the rights and privileges that the Constitution accords them, as outlined in Mr. Rob Walsh's opinion in writing to the committee.

    Members cannot receive unbiased advice from the Department of Justice, nor are they obliged to report to the Department of Justice.

    I regard this as a clear violation of members' privileges. It attempts to restrict their right to free speech and counsel and it is an affront to Parliament. In silencing witnesses, interfering with and obstructing a person's carrying out the lawful order of the committee and denying parliamentarians rights, the Department of Foreign Affairs and the Department of Justice are in contempt of Parliament.

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.

 

As noted above, the committee has done just that -- which means it's now a matter for the House, and if the speaker decides that the claim is sufficiently serious that it should be considered by the House as a whole -- rather than, say, inviting the members to send it to committee for further study, which is also an option -- it could end up dominating debate in the Commons for the rest of the day, and possibly next week as well.