Inside Politics

UPDATED AGAIN - ContemptWatch: A little light weekend reading ...

by Kady O'Malley Posted: February 27, 2010 12:00 PM Last Updated: April 21, 2010 9:53 AM
For those of you who tuned into The House for the inaugural edition of That's A Good Question! -- and for those who did not and are now heartily regretting it, I'll post the audio just as soon as it's available -- I thought I'd do a little privilege-related document dump. 

Unless otherwise noted, these documents were provided by the office of Liberal MP Derek Lee, which in addition to the text of his proposed motion -- which you can read here -- also included some background material. 

While it may seem a little on the unfathomably dense and dull side for those not quite as obsessed with the minutia of parliamentary procedure as, well, me, I'm sure there are a few other people out there who may find interesting, if only to get some idea of what's been going on over the last few weeks,and how the ensuing debate over said motion may unfold. 

Ready? Okay, let's get parliawonking! 

First, here's the letter that Assistant Deputy Minister of Justice Carolyn Kobernick sent to House Law Clerk Rob Walsh, which, in her words, was written to "dispel any ambiguity" he might have held on the position of the government on the application of the Canada Evidence Act to parliamentary proceedings:

 

Walsh's response to Kobernick, which was sent at the request of Liberal MP Ujjal Dosanjh, the following day, in which he politely informs her that, in his view, there is "no legal authority" for her proposition that government officials can withhold information from a parliamentary committee if under a "general statutory obligation" not to disclose it:

 

 The Order of the House, as published in the Journals of the House of Commons for December 10, 2009: 

 

 Derek Lee's January 27th letter to Kopernick, in which he invites her to "review ... and reconsider" the government's position before the House returns, given there may have been "some misunderstanding of the provisions of parliamentary law ... which govern the subpoena powers of our House and its Standing Committees":

 

Lee's February 18th letter to House Speaker Peter Milliken, in which he announces his intention to raise "a breach or breaches of privilege" when the House returns:

 

 Lee's letter to the Governor General, sent the same day as the above, in which he alerts her that there is just the remotest of possibilities that she may, at some point, find herself compelled to ensure that parliament is not obstructed in exercising its powers, although he acknowledges that this is his personal opinion, and differing ones may be put forward if that happens:

 

And finally, in case you didn't want to spoil the surprise by reading the last page first, here, once again, is the draft motion, which may undergo minor -- or even major -- revision before it finally makes it to the floor of the House of Commons next week:

 


I've posted what I think are the most important documents, as far as the sequence of events leading up to next week's debate, but if you want to peruse the full package of background material provided by Lee's office, feel free visit my Scribd profile page and click on PrivilegeWatch 2010 under "My Collections". 


Finally, for those who would like to join me in a brief, quiet moment of fantastically geeky smugness, feel free to peruse Orders of the Day for December 10, 2009, in which I was, I believe, the very first reporter to point out that what seemed, until the very last sentence, to be just another opposition day motion could turn out to be a Really Big Freaking Deal. (In the interest of full disclosure, I should note that the Globe and Mail's John Ibbitson and Former Colleague Potter were the only other two gallery members who made it to the House for the vote, although there is no doubt in my mind that Andrew Coyne was there in spirit.) 


UPDATE: You'd think the fact that he literally wrote the book on the power of parliament to compel the production of persons, papers and records would dissuade even his most vociferous critics from suggesting that Derek Lee's actions above are purely partisan in nature, but just in case you wondered whether he was equally prickly on the subject when the Liberals were in power, check out the following exchange, taken from the transcript of a justice committee meeting on October 25, 2001, in which Lee has a few pointed questions for then-secretary of state for finance Jim Peterson over a potentially parliamentary power-infringing provision buried in the fine print of the government's proposed Anti-Terrorism Act: 


Mr. Derek Lee (Scarborough--Rouge River, Lib.):

 Thank you. 

Mr. Peterson, as you know, Parliament has a constitution based in unfettered power to send for a person's papers and records, and although that can only be changed explicitly by statute by Parliament, in clause 70, which deals with proposed subsection 59(1) of the proceeds of crime act, the PCMLA, there is wording that refers to the case of an order for production of documents. On the face of it, it might be interpreted to actually impinge on Parliament's constitutional right to send for a person's papers and records.

So my question is, is this why the change in wording to insert conditions on responding to orders for production of documents? Why the change in wording?

Secondly, was it intended to bushwhack Parliament's constitutional right? The answer to that question is either a simple yes or no. If it is yes, we have another set of issues. If it is no, then could we have that confirmation today, or later in writing in due course, so it can be confirmed on the record that it is not the intention of the statute to impinge on Parliament's PPR authority?

Mr. Jim Peterson:

I can't imagine, Mr. Lee, that it would be, but I shall ask Mr. Roy to respond to your very precise question.

Mr. Yvan Roy:

I would like to give you a precise answer to your precise question, but I'm not sure I would be in a position to do so, because I'm not sure I got the question as clearly as I should.

Section 59, as it is to be amended, simply, by my way of reading it at least, refers to an addition with respect to the financing of terrorist activities. In the production orders, it is with respect to judicial orders that can be issued for the purpose of getting information. I do not see anything in it that would touch in any way, shape, or form the privilege of Parliament to seek information and documents. But I should hear you more.

Mr. Derek Lee:

To clarify this, if I may, the wording says that an official at the centre shall reply to an order for production of documents only if there if there is a CSIS act or a certificate referred under section 60.1. There must be a certificate.

If the order for production of documents includes orders that Parliament would make under PPR, then it is arguable that Parliament would have to ensure some kind of a section 60.1 certificate. Of course, that is not the case now, and in my view never should be.

I'm asking for clarification. Why the change in wording to require the certificate? I'm going to assume that no one ever thought of this. The government was not thinking of this--and that's good, ignorance is bliss--but if they were, if someone in government was thinking of parliamentary orders for production when they wrote this, then they're trying to bushwhack Parliament and I want a confirmation of the intention--not just for now but in case this issue comes up later. I want it very clear on the record that it is no one's intention, around this table, in the House, or in government, to impinge on Parliament's PPR. If you read the wording of the section, and consider my words now, I think you'll understand what I'm getting at.

Mr. Jim Peterson:

Mr. Lee, I can assure you that as we poured through the minutiae of these very detailed amendments, the thought never crossed our minds. But I think it's a very good point you've brought out. I think we owe you a response, and we'll get it to you as soon as possible. Thank you very much for your stellar sweeping.

The Chair:

Thank you very much, Mr. Peterson and Mr. Lee.  

What's especially interesting about the above exchange, though, is that as far as I can see, the minister's comments -- specifically, the bit about how "the thought" of impinging on the power to order production of documents "never crossed [their] minds" could constitute implicit -- or possibly even explicit -- confirmation of the intent of parliamentarians in passing the legislation in question. Which, as I'm sure you've all already realized, is the very same omnibus bill that created the Security of Information Act, and amended the Canada Evidence Act, both of which have been cited by the government in its efforts to argue that disclosure of unredacted documents to committee would violate the law. 

UPDATE: Since many of you seem to be as fascinated by this question as me -- a delightful turn of events to which I can only respond with a resounding "Yay!" -- I'm adding two more documents provided by Lee's office, which detail the dilemma faced by the Justice committee in 1991 over a similar issue - the then-Solicitor General had refused a request to provide "unexpurgated" documents related to a prison break, claiming that to do so would violate the Privacy Act. The matter went to the privileges and elections committee, which agreed with Lee, and recommended that the House adopt an order to compel the production of the documents in question: 

The original Question of Privilege, as raised by Derek Lee: The tabling of the subsequent report of the Standing Committee on Privileges and Elections, in which the committee chair concurs with Lee's interpretation of the law:

Tags: blackberry jungle, derek lee, privilegewatch, supremacy of parliament