PRHA Committee Meeting

STANDING COMMITTEE ON PROCEDURE AND HOUSE AFFAIRS

COMITÉ PERMANENT DE LA PROCÉDURE ET DES AFFAIRES DE LA CHAMBRE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 4, 1999

• 1109

[English]

The Chairman (Mr. Peter Adams (Peterborough, Lib.)): Our main order of the day is consideration of a request received pursuant to Standing Order 106(3) concerning the leak of committee reports prior to tabling in the House.

I would remind all members that today's meeting will continue through lunch. Ça va, André?

Mr. André Harvey (Chicoutimi, PC): Oui.

The Chairman: It's important. It will give us a first crack at directing the researcher with respect to our draft report. It will help us a great deal in connection with the work we will begin next week.

I propose, just before we begin, we move to other business in consideration of the fourth report of the subcommittee on agenda and procedure, which is our steering committee.

• 1110

You have the report before you. Your subcommittee met; you will note who was there. This is the outline of how we intend to proceed with regard to the questions of privilege that were referred to us after February 17, 1999. If you would run your eyes over it, obviously from time to time we can change this. We might even change the menu of the lunch under item seven.

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Then you will say it's too late.

The Chairman: If you look at it, I think you will have a general idea. We will begin with Diane Davidson, general legal counsel, to give us some advice. We will then call our colleagues from the Reform Party. The following day, Wednesday, Daryl Bean of PSAC will be here. At some later date, Gus Cloutier will be here because of the security aspect of it. Joe Maingot is with us today. He didn't know about it until early this morning, but we hope he will also appear before us on that occasion. We'll see about that when we know what his schedule is.

The objective here is to report on that matter, if we can, before the Easter recess. You'll see some details there on how we're going to do that.

If your proceed down, number nine is simply a complication in dealing with those points of privilege. You'll see that the Select Committee on Broadcasting at the House of Commons in the United Kingdom is here on Wednesday, March 17. So from 4 p.m. to 6 p.m., we propose to have an informal/formal discussion with them. The chair has been authorized to order light refreshments on that occasion as well.

[Translation]

Mr. Stéphane Bergeron: I want us to be clear on the meaning of “light refreshments”.

The Chairman: Understood.

Mr. Stéphane Bergeron: It seems that between the time a decision is made and the time it is implemented, things happen.

[English]

Mr. John Richardson (Perth—Middlesex, Lib.): Diet coke, you know, or Sprite.

The Chairman: Colleagues, given that this will not be engraved in stone, I would ask a colleague to move the motion under other business.

[Translation]

Mr. Stéphane Bergeron: It was merely a question, Mr. Chairman.

The Chairman: Yes, I know.

Mr. Stéphane Bergeron: Aside from these food-related questions, I have one question concerning item number 4. Had we discussed inviting Major General Cloutier to appear as a witness, or was his name added to the list somewhere along the way? I don't recall our mentioning his name at last Tuesday's meeting.

[English]

The Chairman: I think you're right, to the extent that we didn't discuss it in great detail in our steering committee. But the name came up as a possibility and it's here as a suggestion. There was some discussion among the parties later and the name came up again, so I simply included it.

[Translation]

Mr. Stéphane Bergeron: I understand, but I merely had no recollection of seeing that in the minutes. In some respects, it might be quite appropriate to call him as a witness, but I have to say that I don't recall the subcommittee on agenda and procedure making this a formal motion at its meeting.

[English]

The Chairman: I think you're right. Is there any objection to including Gus Cloutier as a probable witness?

[Translation]

Mr. André Harvey: None whatsoever.

The Chairman: How about you, Stéphane?

Mr. Stéphane Bergeron: I have a question, Mr. Chairman. I'm not certain I understand why exactly Mr. Cloutier is being called before this committee. If indeed the reason is to hear from someone not directly connected with this skirmish, that is from someone other than the members concerned or the protesters, someone who can really tell us what went on that day and shed some light on the matter, then by all means, it's appropriate to invite him here. However, if the only reason for having him here is to get him to admit that as a general rule, 34 security guards are on duty Tuesdays morning at the Wellington Building and that on that particular Tuesday morning, there were in fact 34 security guards on duty, that our jurisdiction is confined to the building, and not to the city sidewalks, that I fail to see how his appearance would in any way be relevant.

• 1115

Do we want to call in Mr. Cloutier, either as a direct or indirect witness—probably indirect, given his association with security services—to tell us exactly what occurred that morning? If so, then I think his testimony would be relevant. Could someone clarify this for me?

[English]

The Chairman: It seems to me, Stéphane and colleagues, Mr. Cloutier is responsible for security on the Hill itself. That includes security cameras. The security cameras extend beyond the Hill, in the normal sense. Also, part of his job is to liaise with the RCMP and the Ottawa police, obviously because of the surrounding jurisdictions.

As I understand it, we're into some complex matters with respect to the buildings that aren't quite obviously on the Hill—the ones surrounded by public thoroughfares and so on. It seems to me Mr. Cloutier is the person whose job it is to liaise on those matters, so he might be able to help us in those areas.

[Translation]

Mr. Stéphane Bergeron: The reasons aren't always clear, Mr. Chairman.

Can the cameras that you mentioned a few minutes ago shed some light on the events that transpired that morning? Can RCMP observers who supposedly passed information along to Mr. Cloutier tell us what really went on that day? If they can, then I think calling him as a witness is relevant. However, if all he does is explain to us how the House security system works, then this wouldn't shed any light at all on the questions of privileges that have been brought to the committee's attention.

[English]

The Chairman: Chuck Strahl and then André.

Mr. Chuck Strahl (Fraser Valley, Ref.): The reason for having Mr. Cloutier is not specifically because of the problem with the member for Saskatoon—Humboldt, but it's more for the greater issue of the second referral by the Speaker to us, which was to talk about access provisions generally, not specifically about the case with Jim Pankiw.

The second point of privilege, which deals with John Reynolds' complaint, isn't specific to the incident. It deals with the greater issue of when we should have access, whether our staff should have access, how we can assure that, and so on. My feeling is that Gus isn't going to be able to comment too much in detail on the Jim Pankiw affair, but he can give us a lot of detail on what he can and can't do on the general access issue. That's the second referral, and we're kind of dealing with both together. It's worth while, not for the Jim Pankiw issue but for the second reference, and we need him for that.

The Chairman: André Harvey and then Marlene Catterall.

[Translation]

Mr. André Harvey: Mr. Chairman, I agree with Chuck. I think it's important to hear from Mr. Cloutier, since our discussions could lead us to recommend some strategic and logistical changes to the security system and this falls within his jurisdiction. I have no objections to his coming before the committee. In fact, his testimony could be useful.

[English]

The Chairman: Marlene Catterall.

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): To put it squarely in the context of the second reference to us, as Chuck said, if we find there was a breach of the privileges of members of Parliament, we need to report to the House on the practical elements of ensuring that members' privileges, to the greatest extent possible, aren't breached. Only Mr. Cloutier can enlighten us as to what the problems are, if there are any, in ensuring that members continue to have the access to the House they require to perform their duties. We need to hear from him.

The Chairman: Broadly, Stéphane, we have a number of duties, but one is to make sure things don't happen again. We have two ways to do that. One is through the standing orders and members' behaviour, and the other might be security-type recommendations. Are you comfortable with this now?

[Translation]

Mr. Stéphane Bergeron: Yes, but we may need to hear from Mr. Cloutier later on, that is when we have to make recommendations to the House.

[English]

The Chairman: Okay. Would someone move the motion, please? I would be most grateful.

Mr. John Richardson: I so move.

The Chairman: It is moved by John Richardson that the fourth report of the subcommittee on agenda and procedure be adopted.

(Motion agreed to)

• 1120

The Chairman: We welcome Joseph Maingot here. Joe, I'm sorry about the other invitation you've only just heard of, but I'm glad you were here to hear it.

Our colleague, Derek Lee, has arrived. Derek, we're glad to see you sitting there. The agreement among the members is that we're going to spend the first period of time with Mr. Maingot and the second period of time with you. This is the way the committee agreed we'd proceed. Are you comfortable with that?

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Great decision.

The Chairman: Thank you.

Joe, I'd be grateful if you would make your preliminary remarks with regard to the topic we're considering, and then we'll go to some questions.

Mr. Joseph Maingot (Individual Presentation): Thank you, Mr. Chairman. I'm delighted to be here.

The issues you're discussing now, or wrestling with, rather, are not new. They're not new to you; they're not new to Parliament. As a matter of fact, 22 years ago when the Speaker was dealing with an issue such as this, he noticed that the concern was that the press had been publishing a confidential document but that the discussion did not relate to the conduct of the members themselves.

In your remarks you talk about your concern about your self-discipline and your own integrity. You wonder whether it's proper for a committee to deal just with the conduct of people outside as opposed to the conduct of the people who run the committees.

As you know, this House of Commons, anyway, has not taken the position that a leak of something from committee meetings held in camera does not constitute a matter of privilege, although it's an infringement on the integrity of the House, because as a general rule you don't talk about what happened in a committee unless it's reported to the House. But principally the idea is that the House should be apprised first of all matters.

One of the differences between the Canadian House and the British House, which has been pointed out to you, is that in the British House they have a resolution, which was adopted back in 1980 and based on the resolution of 1971—and I might as well read it—that says they:

will not entertain any complaint of contempt of the House or breach of privilege in respect of the publication of the debates or the proceedings of the House or of its Committees, except when any such debates or proceedings shall have been conducted with closed doors or in private or when such publication shall have been expressly prohibited by the House.

This, I suppose, gives them an added advantage that if someone raises a question of privilege about something that has been published arising out of an in camera proceeding, you can at least raise it and deal with it and perhaps send it to committee.

At the moment, the Speaker doesn't feel he can do that, because you're not dealing with any particular incident or any particular person involved.

As he said in 1977, for a committee to be examining a leak, as it were, he wonders whether they'd really have the authority to do that, because you're not really charging anybody, particularly a member, for some breach. So that's why the position of the House of Commons in Canada is that unless you have a specific case, such as that occasion when a member divulged in the House what had happened in the committee and that constituted contempt, unless that takes place, Speakers of the Canadian House are reluctant to find a matter of privilege to send to committee.

You've discussed this and you've been wrestling with it in the last few days; I've noticed that. You discussed whether you should also have a resolution to that effect, and perhaps it's an answer you might consider. At least that would permit un renvoi to be sent to committee, which now you cannot do. With that resolution you would maintain the dignity, integrity, and efficiency of the House, and you would discourage leaks notwithstanding where they emanate from. You might add a penalty, and of course when you're hit in the pocketbook, you're hit more than anything else....

• 1125

So you might consider, and you've talked about this also, the issue of providing that the House has the right to impose a fine. You can't do that now, and you can't really change your privileges by yourselves. But you can do that by legislation, by either a government bill or a private member's bill, as far as I can see, to provide a fine.

What that would accomplish, it seems to me, unless I'm looking at it too simply, is that you would discourage the publication, because the big thing is the publication. It's the publication that has an effect on the integrity of the House of Commons if they're doing something in private. It would permit them to uphold their dignity and their integrity to have a resolution to say that if that's published, let alone where it comes from, then that represents contempt. If you added a fine to that, then it would all fall on the person who published it.

Even though the leak emanated from a person from somewhere, nevertheless you would still provide for the protection of your integrity by saying, we take seriously what we do in camera and for various reasons we don't wish it to be divulged until it's reported to the House. The reason you have in camera proceedings is to permit you to speak with your shirts off and without the scrutiny of your whips and your party generally. The House would be protecting its dignity and its integrity by doing that.

Then, as I said, the added fine would make those persons to whom this information is disclosed maybe think twice about it. Otherwise, nothing would be more delightful than for a newspaper person to be in contempt of the House and perhaps have a great time with that. I considered all your comments in the House when I was looking at the matter, and it seems to me that is an important consideration you would take into account.

Then there was the other one, which I thought was interesting, with regard to the budget, where those in the budget room have to sign a document that says, in effect, you're not going to divulge it one way or another. Of course, you have portable telephones. That's another consideration.

The thing to consider, as far as I can see, is that you want to make sure the integrity and reputation of the House are maintained and upheld. Right now—and this is the strange thing—even though divulging in a newspaper what happens in a committee reflects on the dignity of the House, unless someone is charged, our precedents provide that the Speaker is reluctant to send that matter to committee on a sort of fishing expedition.

As a result of looking at all you've said, these are my general comments.

I'd point out to you that it wouldn't be the first time that what took place in an important area was published. As you know, in the courts now for reasons of public policy and privacy, the names of young people and other complainants are protected, and usually it's for cases involving sexual conduct. The most recent case is the Bernardo case, where the judges made many rulings with regard to it. That was flaunted in the States, but there's a lawyer who now is being charged for having disclosed the videos that were used in that case.

As I say, there are different reasons of public policy. Here it would be public policy with regard to the integrity of the House and you being protected in the courts. It has to do with the administration of justice and also matters of privacy.

So you've aired all of these. I don't know if I can contribute any more, but those are my views, my thoughts.

The Chairman: We greatly appreciate them, and thank you again for coming.

Chuck Strahl.

Mr. Chuck Strahl: I'd also like to thank you. The other day when we were planning these meetings, I said we rely so much on your expertise that I almost feel guilty calling you before us as a witness. But we always enjoy your presentation, and I suppose you know that we rely on you. We much appreciate it.

• 1130

I had a couple of questions. One was regarding the Australia legislation. I've seen the summary of it; I haven't seen it in detail. How does someone prove the information they received was in fact from an in camera meeting? In other words, what measures would a media person have to go through to determine that? They get a document delivered to them and they say, interesting, it doesn't say on it.... The guy tears off the first page and it says draft report and he gets it in his possession and says he just thought it was a report.

Mr. Joseph Maingot: That's always the difficulty. When you're in court in a criminal proceeding, you don't have that difficulty because it's all open; anybody can go. But you can't report it if the judge says no.

In this case, as they say about the Income Tax Act, there's always a way to get around it. Newspapers will find a way. That's the consideration you have to take into account. I don't know; the reports I have read about Australia don't deal specifically with that. That is a practical matter that at the present time I couldn't help you with, as to how you would deal with that.

Mr. Chuck Strahl: Yes, it does seem to me that could be problematic. If someone wants to leak a report, it's a simple as taking the front cover off and leaving it in the men's washroom. It will find some legs to somebody.

Mr. Joseph Maingot: The fact that it has taken place in the committee is enough to say it can't be published. But as you say, if it's in camera, then the newspaperman says he doesn't know what happened. On the other hand, if it was an open meeting and subject to an order, it could not be published.

Mr. Chuck Strahl: Right. In other words, perhaps the in camera meetings themselves would have to be adjusted to say, well, yes, the media can sit there, but they're not allowed to talk about what they see.

Mr. Joseph Maingot: This is what happens in the court right now.

Mr. Chuck Strahl: Yes, but that's different from what we do now.

Mr. Joseph Maingot: Yes.

Mr. Chuck Strahl: So the problem now is they sit outside the room out here. We have an in camera meeting and then they all want to talk to us about it, whereas if they were in here and we said you can listen in but you can't publish it—that may be the quid pro quo for them. You can know about it, but you can't say anything until we've finished our report.

The other thing I wanted to get your opinion on in general was the feeling amongst many MPs that there are just way too many in camera meetings anyway. You know, you're kind of setting yourself up for a fall. For example, on the Standing Order 106(3) letters, where you actually bring a letter to the committee, if you want to entertain a witness or call someone or whatever, you bring forward this provision under the standing order, and many of the committees in the House now immediately go in camera. They just say, “Oh, you want to invite the minister? This meeting is now in camera.”

That's not the purpose. The purpose was to discuss the validity of bringing in this witness. By moving it right in camera, you're kind of cutting off my privilege as a MP. The Standing Order 106(3) is one of the things I get to do. By moving everything in camera—or increasingly, it seems to me, committees are just inviting people to flout the rules—then basically you say, “Well, then none of it's in camera. I've got to talk about something.”

In your opinion, have we moved increasingly to in camera meetings? It used to be a big deal. Now it's pretty routine.

Mr. Joseph Maingot: Of course it's a decision of the committee itself to move in camera. Second, as you say, if you're in camera, then immediately the bright lights shine in the minds of the press.

As for whether you have too many or not, I think there are other people who would be more competent to talk about that—some of the journalist friends who have been here before. I don't think I'd be in a position really to say whether you have too many in camera meetings or not.

Mr. Chuck Strahl: Okay. My last point, Mr. Chairman, is that when the House orders a ban—I know the committee can go in camera on its own—it does up the ante. It does make it a more serious thing. Yes, we empower the committees to do as they wish, but if the House itself gives an order...it's a pretty serious thing to countermand the order of the House.

The frustration in some committees is that “I'm not going to listen to the committee because the committee's not reasonable”, or “I just don't take their judgment”. People eventually say, and not just in opposition, “I'm not going to listen any more, because the restrictions they're putting on me are so regular and so extensive that I can't talk about my job, which is to berate the government or put forward alternatives as I may see fit.”

• 1135

It seems to me that perhaps you're on to something there when you say if it's so important that it should be in camera, perhaps it should take a special order of the House to make it some sort of a punitive thing to break that rule. Otherwise, we should open more of the committee hearings, and if you want to go in camera, you're going to have to get permission of the House to make it a secret. Routinely, especially on those letters, that's a privilege in the Standing Orders to highlight a particular event, and that privilege has basically been taken away from us, because the government routinely moves into camera so you can't talk about it.

Mr. Joseph Maingot: If you go on an ad hoc basis, that might cause a big debate and you may never get anywhere on that. On the other hand, if you had a general resolution of the House that says, as in the U.K., that if you publish anything that's been dealt with in camera, or whatever term you want to use, that constitutes contempt, then you would have that. So then it would be up to the committee in each case to decide whether they're going to avail themselves of that resolution to go in camera. Maybe at that particular time you might say this is important stuff and you don't want to drag the House into a matter if something is revealed subsequently.

Mr. Chuck Strahl: The problem now, of course, is the genie is out of the bottle. You know, they've already been publishing, so the press is adamant that it is part of their freedom now to publish as they receive. So that's a problem.

Mr. Joseph Maingot: If you remember, they might have said that until the Criminal Code was changed.

Mr. Chuck Strahl: That would do it, all right.

The Chairman: Stéphane Bergeron, then Lynn Myers, then John Solomon if he wishes.

[Translation]

Mr. Stéphane Bergeron: Mr. Maingot, I want to be certain that I've understood you correctly. You seem to favour tightening up the rules and possibly fining offenders. You are even suggesting that reporters who leak reports should be fined. Is that correct?

Mr. Joseph Maingot: I'm saying that you could consider following the lead of your British counterparts. Although taking legal action against a reporter is not always an option, at least there is the possibility of stating that this truly constitutes contempt of Parliament.

Mr. Stéphane Bergeron: Therefore, reporters would have to exercise some self-discipline, since they know that ultimately they could be fined for their actions.

Mr. Joseph Maingot: Exactly. Sanctions can be imposed if the guilty party is known, but otherwise...

Mr. Stéphane Bergeron: That's what I'm getting at. Leaks are occurring with growing frequency. Eventually we could resolve the problem we have with in camera meetings. As Chuck said a few minutes ago, it's a question of deciding what must be discussed in camera and what should be open to the public and of giving opposition parties some latitude. Thus, when a committee decides to sit in camera, there would be some indication of the kind of fines or action that could be taken in the event of a leak.

What's unclear is how a person's guilt is determined? How do we determine the source of the leak, who passed this information along and so forth? I don't know if the House or committees are equipped to handle this task. Should this really be up to this committee? Shouldn't each committee be responsible for settling its own problems? What are your feelings about this, Mr. Maingot?

Mr. Joseph Maingot: You're talking about committees going on a fishing expedition. Right now, they don't have the right to do that. The Speaker won't allow it, unless someone's name is mentioned. However, if you decide to fine the individual who published this information, then you are skipping this step entirely.

• 1140

You would be protecting the integrity of the House by sanctioning the person who published information that should have remained confidential. However, in your case, it would be hard to always try and identify the source of the leak and to doggedly pursue reporters unwilling to reveal their sources. The House could pass a resolution whereby anyone who publishes information emanating from in camera meetings can be fined. Then, you wouldn't have to concern yourselves any more with identifying the individual who disclosed the information and is responsible for the leak. You would have the option of sanctioning the individual who published the leaked information. This would allow you to safeguard the integrity and dignity of the House and to protect yourselves at the same time.

Mr. Stéphane Bergeron: Basically, you're not recommending that we try and identify the source of the leak and fine that person, but rather that we put in place some mechanisms to fine the person who published the leaked information.

Mr. Joseph Maingot: Not exactly. When you know who is responsible for the leak, then you can sanction that individual. I recall an incident in 1987 where an MP disclosed information about a vote taken during an in camera meeting. His actions were deemed to amount to contempt, which in some respects served as punishment enough. Moreover, the Speaker of the House will always allow you to have the matter referred if you name the person responsible for the leak. Otherwise, he won't do that. How can he accuse a member if he doesn't know who that member is? That wouldn't be fair.

The Chairman: Is that clear then?

[English]

Lynn Myers.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you very much, Mr. Chairman.

I wanted to ask the witness whether he thought there was a necessity—and I think you sort of talked around this—for clearer rules for in camera meetings and whether or not there were more precise restrictions perhaps that we could adopt or at least look at in terms of the use of in camera. I happen to think they're important; I think there's a useful purpose for in camera. I wonder if you could suggest specific strict rules that might be implemented for our consideration.

Mr. Joseph Maingot: I attempted to do that generally. As the Speakers have said and as has been written, the purpose of in camera permits you to get together informally and work something out. It's normally better to have a unanimous report. At the same time, you want to deal with that privately.

The method I suggest, and you talked about it earlier, is if you had a resolution of the House that said that if you published something that has been discussed privately, whether it's described as in camera or whatever, that constitutes contempt. And if you had attached to that a pocketbook penalty, a fine, that might discourage newspapers and newsmen or television people from actually publishing what was said.

It's not the first time this has been considered. The Criminal Code was amended to provide that judges could order that what was being said in public, and not to be published for reasons of public policy, for reasons of dealing with the administration of justice, a fair trial or the privacy of an individual, the privacy of the name of a complainant or a young person.... So it wouldn't be the first time, and then you're protected that way. You don't hear too much being reported in the news that has gone on in a courtroom and has been subject to an order of the court. It just doesn't happen. So it may well be the same here.

• 1145

I realize there are other considerations. In a courtroom, in criminal justice, the only person who might want to get it out is maybe a newspaper. There are other considerations of public policy here: there are three or four or five parties that think differently. I appreciate all that. But if you want to get to that, want to resolve it, that is I think a solution you'd really have to consider.

Mr. Lynn Myers: I was interested in your comment about the Bernardo case and Stephen Williams. He lives in my riding and he keeps me updated in terms of what happens, so I was interested in your comment on that.

Do you have an amount in mind in terms of the kind of pocketbook hit, as you say? Have other jurisdictions recommended certain amounts?

Mr. Joseph Maingot: Well, Australia has one. Actually, here in Canada, Newfoundland and Quebec have passed legislation providing for a fine. I don't have the figures before me. In Australia, for a person it's $5,000; for a company it's $25,000. You might say that for a big company—they're all very large, the newspaper and television companies—$25,000 doesn't mean very much to them, so you might consider the amount. But that's what's in that other jurisdiction, in Australia. I don't know what the amounts are in the Quebec legislation or in Newfoundland.

Mr. Lynn Myers: I wondered if there were other administration kinds of measures that could be implemented to prevent leaking. As you know, the Speaker doesn't get involved until there's some discussion and the member is named and such.

Mr. Joseph Maingot: Yes.

Mr. Lynn Myers: Should that be reconsidered? Should that be looked at in a different way—either the administrative side or the Speaker's involvement?

Mr. Joseph Maingot: Well, that's another matter. I notice that when that distinguished journalist Doug Fisher was before you, I think one of your colleagues suggested that maybe, as you do in the budget debate, you could sign a document to the effect that you wouldn't divulge what was said. Now, whether that would mean more than just your oath of office as members, I don't know.

As you know, when you're involved in a draft report it may take more than one day. You've got copies sent out of draft reports, so there's a lot of paper running around. I know in some areas they say you can look at the report, but we keep it. So there are a lot of those things. That's a matter of security, with which I'm not that familiar.

Mr. Lynn Myers: Thank you.

The Chairman: Thanks, Mr. Myers.

I'm going to go to John Solomon and then very briefly the chair and then we're going to finish, if we could, because we have Derek Lee waiting here.

Mr. John Solomon: Mr. Chairman, I'll pass. Mr. Myers asked my questions.

The Chairman: Mr. Maingot, I'll be very brief if I can, and I hope you will be as well.

It seems to me that there are in the standing orders situations in which the subject matter is the reason for going in camera—for example, for personal matters. And it seems to me that in other cases, and the one we're discussing specifically, it's actually the process. Very often it's not so much that the reports we're talking about are very sensitive, or it's not so much that perhaps in the scale of things they are very, very important; the reason for going in camera is a process reason. It's that it seems to be better to the members of the committee at the final stages of producing a report—and particularly nowadays, when you can have a majority report and a minority report—that at that time, for the purpose of process, not for subject matter, there is a value to going in camera.

I know you're here discussing parliamentary privilege, but have you any thoughts on that? We're not talking matters of high treason. We're talking about something quite straightforward, the normal committee thing, but the purpose of going in camera is process, I would suggest, not secrecy. I wonder if you had any thoughts on that.

Mr. Joseph Maingot: If that's the case, why do you have these leaks? If everybody is agreeable to that process.... I don't have an answer for that.

I agree that there is a need: you want to sit by quietly and deal with this in this process. But how you would resolve your problem is a matter in the heart of each one of you who takes part in that meeting.

The Chairman: Thank you.

Mr. Maingot, as I think Chuck said, or Stéphane, we draw on you very often. We greatly appreciate it. We want to thank you for coming here today. It's been very useful to us. Thank you very much indeed.

• 1150

We'll now proceed to our colleague Derek Lee.

Colleagues, as we agreed, it's essentially a second round in which Derek will make a few remarks, and we will then ask him questions in the same way. I will remind you all that this meeting proceeds through lunch today—lunch will be provided here—in order that we can give some direction to our researcher.

Ms. Marlene Catterall: How soon is lunch?

The Chairman: It depends on how quickly Derek speaks.

Derek, go ahead.

Mr. Derek Lee: Thank you, Mr. Chairman and colleagues. I'm very pleased to try to make a contribution here today.

I'll start with a short submission—I hope it's short. I had the benefit of listening to Mr. Maingot and to some of his suggestions here.

We're dealing here with the in camera protection that is provided to committee reports, draft reports, and I want to remind everyone that there is no other body, no other place in the country or the world, no other group of people that is capable of deciding this and managing it but the people in this Parliament. We can't look outside Parliament. We can't go to the courts. It's us or it's nobody. So the solution must be found here and must be implemented here, and as I may say later, there's no such thing as subcontracting, privatizing, or sending out to anyone else. The solution to this issue has to be here.

I wouldn't want the fact that the question has come up—“draft reports and leaks”—to suggest that there's nothing there now, no law, no procedure. There is something there now, and hopefully that process will crystallize a better awareness of what's there and augment it, refine it, and make it more useful.

I will start with the assumption that there are at least some occasions when parliamentarians want in camera protection for some things they do. I have to start with that, and the chair has made the suggestion that there are process reasons.

Yes, there are draft reports that we believe should have some protection; there are incomplete reports, and normally in the past these have been provided in camera protection.

Maybe we all didn't know it on the first day we became MPs, maybe staff didn't know it, and maybe the press didn't know it, or maybe they knew a little bit and not a lot, but that is in fact what was there. We have to remember that the House has enabled the committee to do its work—not just this committee but all committees. The House does the enabling, so when the committee reports back, it is the House that must receive the report first. That's simply the linkage.

I am of the view that, as the chairman has mentioned, the process of developing a report needs in camera protection. I just happen to have that view because I've experienced it, and hopefully all of you have experienced the process of developing reports. You may not come to the same conclusion that the draft reports and the reports need in camera protection, but I certainly have.

Other institutions have those process protections, and you all know what they are. You've seen them. Negotiations of collective agreements are, if I may use the term, in camera. The parties agree that what goes on inside the room doesn't go outside the room. That's part of the negotiation process with collective agreements.

You have press blackouts during strike negotiations. That's essentially the same thing. What they do inside the room stays there, because if you start playing to the press or to the public, you make it much less likely that the parties will reach an agreement.

Lastly, a good example is court decisions where you have more than one judge.

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We don't call them in camera, and the courts don't call them that, but God forbid that a draft judgment of a court of appeal with a bench of more than one judge would somehow find its way into the public before the judgment was rendered. It would be unthinkable. And so I commend to you the need for in camera protection for elements of the process of preparing or drafting reports.

Don't forget as well—and this is important—that in camera protection is not just needed for reports. Parliament has always needed it for other reasons as well. Those examples are in camera testimony for which a witness needs protection—which is often the case in a courtroom as well; in camera documents, when the documents themselves should not be made public outside the committee room for any number of reasons; and other information that comes into a committee when the members know it comes in in camera. Examples are matters involving personal information of people to whom members of the committee wish to accord protection; security information; confidential commercial information; and any number of other heads. In each case it's up to the members to decide that the protection should be there. When the members decide that, then the protection has to be there. No matter what you might decide here, you have to remember that Parliament has an in camera procedure that is used from time to time in the public interest.

Remembering that it is Parliament's procedure, that it is its own, I've already mentioned to you that other institutions routinely provide protection internally for the work they do. Medical institutions don't go out and make medical records public. Even when they're deliberating as a hospital board, those things are kept secret. So I think we have to deal with this responsibly, because if we don't, nobody else will.

The first thing we can start with is a rearticulation of what “in camera” means. I think if we asked our members what it means, less than half would get it right. Virtually no one would get it 100% right. If the users of the procedure don't know what it is, that's the first problem, so let's start with a definition. I suggest that rather than passing a statute, passing a regulation, or amending the standing orders, we could begin by developing what I would call a protocol for use by committees. It would be a pseudo-codification of what we're talking about here. That way, if anybody really wanted to know what in camera meant, there it would be on a one-pager or a two-pager. I suggest that as the lowest threshold of technical reform.

We need a kind of owner's manual, an owner's guide to this in camera procedure. It just isn't there now. You have to go through two or three books, flip through the pages, and look at the precedents and Speakers' rulings. I therefore commend that as one possibility.

Keep in mind that in proceeding that way, being a creature of the House, a committee would always be in full control of its own procedure. It could either use the protocol, or not use it, or use part of it, but a committee would still always be in control of its procedure and any in camera procedure that it adopted.

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We've been drifting for many years with this in camera protection for committee reports. We just assume it's there. We know it's there, but perhaps we don't all understand what it means. Whenever a committee moves in camera, I believe it should advert to it at the beginning. I think the chair should make it really clear. If members don't want to be in camera, then they won't adopt it. But if the committee is going to move in camera, it should be very clearly adverted to, with or without reference to the protocol or whatever.

The committee should also advert to how long or for what parts of the process it wants to be in camera. When you start negotiating and drafting a report, you don't know whether it's going to take two days or three weeks, but I think the committee should be clear on how long.

If there are documents that are to have the protection of the in camera procedure, they should be marked. I don't know how bureaucratic it has to get, but many institutions.... In fact, I have been a member in this Parliament in committees in which each page was marked and each page was accounted for, each document. There are ways to do it. It may cost a little more, but if we're going to do it, let's mark the copies.

If a breach occurs, I think the committees and members of Parliament have to give the House the tools that it needs. The House is not the complaints department. In my view, it's completely useless for a member to get up in the House and say, “Hey, there's been a leak, I think this is a breach of my privilege.” With not enough information for the House to do anything, it's a waste of the House's time. If a committee or a member of a committee is going to report a breach, I like the approach that the U.K. House has taken.

The protocol that I've suggested should state the elements of whatever the member or the House is going to report to the House in relation to the breach. I think it needs a who, where, when, what, why and how. If the committee or the member comes with less, the Speaker is then entitled to say, “I hear you, I like the protocol, but you haven't given me 100% of the protocol.” The Speaker may choose to refer it to the PRHA committee or whatever, but I think the standard ought to be out there for everyone to see.

If it so agreed and so offended, the committee itself ought to immediately take steps to package, bundle, investigate and put together the facts for the House before it goes to the House. Otherwise, just to send it into the House is asking the House to take time to do the work the members have to do anyway. This privilege belongs to each of us collectively, so I think the committee should do its own homework before it goes to the House.

As for the press, the press aren't the villains necessarily, so I don't think they should be targeted. By the same token, I don't think the press should have carte blanche to snub our parliamentary rules. Our rules are there in the public interest to serve the people of Canada, and nobody gets to flaunt our rules. That's the attitude we ought to take as parliamentarians. After all of these years, I'm of the view that if anybody were to snub or challenge Parliament's rules that we develop, they would lose ten times out of ten.

So the solution is in our hands, the means are available to us, we just have to do our homework.

Thank you.

The Chairman: Thank you very much.

I have Randy White, Marlene Catterall, Chuck Strahl, and John Solomon if he wishes.

Mr. Randy White (Langley—Abbotsford, Ref.): Thank you, Mr. Chairman.

I just have a couple of things, Derek. I take it you weren't comparing negotiations, for instance, to all issues that may go in camera. You're giving an example by suggesting that negotiations should be in camera. Take, for instance, drafting a report on leaked documents. You wouldn't compare that as an in camera item to negotiations, would you?

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Mr. Derek Lee: Mr. White, I cannot create the precise paradigm necessary for every committee. It is for the members of the committee to decide. There's no off-the-shelf decision-making here. If the committee believes the process requires in camera protection, then the committee members will adopt it and should adhere to it.

Mr. Randy White: I'm glad you said it that way, because this is going to be my point. One of the difficulties I see about in camera is that committees tend to move in camera almost as an automatic reaction to what they're about to do. Here comes a report, so let's go in camera. There are, I suppose, more government members than opposition members, so you can be outvoted on that at any time.

So I suggest to you that the very reason why we go in camera.... You've missed that point, that we should assess that. What are the criteria for going in camera, as opposed to just, well, we're going to do a report, it's time to move in camera?

I've also seen in camera problems such as we've experienced, where one of our members couldn't submit a minority report, for instance, and this was done in camera. I would suggest to you that would not have occurred had it been in public. So there is a distinct advantage at times to move in camera on a partisan basis.

I guess what I would like to see come out of this exercise—and you can comment on it—is specific criteria for actually moving in camera for committees as opposed to just saying, here comes the report, let's go in camera. What do you think of that?

Mr. Derek Lee: On one extreme end of the scale, no one around this table will be able to remove Parliament's ability to move in camera. Some may say that a parliamentary committee should never be in camera.

Mr. Randy White: I'm not suggesting that.

Mr. Derek Lee: No. That's one extreme. I would suggest to you that if there is to be a protocol, the categories of situations where in camera protection should be considered can be listed, but at the end of the day we're dealing with politics, and around the committee there are elements of politics that.... We'll never escape that. As much as all the politicians around the table would love to have the ability to codify and proceduralize so they don't have to deal with this messy political animal, in my view it's never going to happen.

So if there is a political element to the decision of going in camera or not, members on both sides will have to deal with that. If the problem is political, the solution is political, and everybody around this table knows the political tools available to them to accomplish their goals.

Mr. Randy White: Then the decision to leak a document is political, isn't it? If you can't eliminate one, you can't eliminate the other, can you?

Mr. Derek Lee: Let's not blur what we're dealing with, with the political. To assassinate somebody politically can also be called a political decision. It doesn't mean it's right or legal or appropriate. If we have rules, we should use them, or lose them, or use them and follow them.

I appreciate the difficulty you have with colleagues potentially overusing in camera protection to avoid light being shone on issues.

Mr. Randy White: It can be avoided by establishing criteria. Before I became a politician I established criteria for in camera meetings.

Mr. Derek Lee: Yes, and that's possible, except I don't think we'll ever get around to having a Ten Commandments of the in camera rule.

The Chairman: Some people—not me—break the Ten Commandments, Derek.

Okay, Randy?

Mr. Randy White: Yes.

The Chairman: Marlene Catterall, then Chuck Strahl, then John Solomon.

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Ms. Marlene Catterall: Derek, I'm somewhat surprised to hear you say it's for members of the committee to decide when to go in camera. While committees are masters of their own fate, to some extent, I think Canadians also have the right to expect that Parliament in general, including its committees, will operate with some consistency as to what is public information and debate and what is not. Can you rationalize those two positions for me? You could have one committee that does everything in camera and another that very seldom does anything in camera.

Mr. Derek Lee: If every committee operated all the time in camera, we would not fulfil our purpose as parliamentary committees. I immediately agree that going in camera is an exception to the rule. I agree that going in camera is for a specific purpose, a process purpose, a protection purpose. You have an interest, whether it be privacy, commercial confidentiality, national security, or the development of a report process, and in order to get to where you want to go, that interest rises above the general interests of doing everything in public.

The same philosophical paradigm might also logically apply to the courts, where the rule is that they do their hearings in public. But there are probably hearings today in Ottawa that are in private, that are in camera.

The public interest, after you balance everybody's interest, simply requires that on the exceptional basis there will be in camera protection. At the end of the day, it's the members of the committee who have to make the decision and account for their use of it.

Ms. Marlene Catterall: Would you say it would be a good guideline that when committees are going in camera they indicate the nature of the reasons why they're going in camera?

Mr. Derek Lee: That's a great idea. Make everybody do their homework. If we're going to use it, let's state the reason right up front. The chair will have been asked to suggest an in camera protection or he or she on his or her own will recommend it. Maybe the protocol should say that if a committee decides to go in camera, it should publicly state why and then go in camera.

Ms. Marlene Catterall: My last question has to do with what I raised in our very first meeting, and Beauchesne's is quite contradictory on this. Beauchesne's says a committee may go in camera, but it also says it must make a decision to go in camera and it's not necessarily the practice around here. But it's in the hands of the committee as to whether it goes in camera or not. Then it says reports are confidential until tabled in the House. If a committee decides in fact that it doesn't want to go in camera to deal with the report, it has that right. On the other hand, it is not protecting the right of Parliament, apparently, to have reports considered as confidential until tabled in the House.

How would you resolve that dilemma for me?

Mr. Derek Lee: I can't totally resolve it, but it would be for the House to react, or members of the House. The House isn't a thing; it's composed of members. If a committee chose to adopt a report in the committee room and then allowed its circulation before it was tabled in the House, it would only be a short period before someone in the House would raise the issue, and then a short period of time before the Speaker would say, I'm sorry, Mr. Committee—who is a creature of the House—we in the House can't accept that a committee would allow a report to this House to be divulged publicly before it is tabled in this House.

So although you might open the door and not go in camera because you chose not to, the committee would be diverging from the history of the evolution of this in camera protection and it wouldn't be long before the committee would be brought back to it, in my view.

Ms. Marlene Catterall: Just a quick comment. The environment committee did it for nearly four years.

Mr. Derek Lee: Oh, yes. And if nobody objects, we are the owners of this procedure and MPs have the last word.

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The Chairman: Chuck Strahl and then John Solomon.

Mr. Chuck Strahl: There are a couple of things.

Derek, you say we shouldn't be coming to the House unless we have a who, what, when, where and how, and have that all filled out. It's virtually impossible; it will never happen. It's just published in the paper and I stand up and rail against the government and the government says, “It wasn't us”, and somebody then says, “It wasn't me”. That's impossible. You can't know that stuff. It seems to me that's unknowable unless you get true confessions of a leaking report person, but basically it's impossible.

Mr. Derek Lee: We won't get compliance with any of our rules in or out of this House unless we're prepared to enforce them. We might as well recognize that. So if everyone knows we're prepared to enforce them, then we're more likely to get a much higher compliance rate.

Those who would flaunt or snub our rules won't believe we're prepared to enforce until we actually do it once or twice. That means a committee will have to ascertain what happened to its report, or use its best efforts. I'm not saying that every time you have a crime the police are going to close the case, that they're going to close the file on it and get all the answers. But sooner or later we're going to get a smoking gun and the committee will simply have to investigate. They will simply have to ask the person or institution or business that snubbed the in camera rule to be here and answer questions. It's the same thing a court would do.

Mr. Chuck Strahl: You're suggesting, though, that the sanction would have to be against those who published.

Mr. Derek Lee: No sanctions yet. We're only trying to find facts.

Mr. Chuck Strahl: But without sanctions nobody cares.

Mr. Derek Lee: Without enforcement.

Mr. Chuck Strahl: Yes, but you can call the Globe and Mail here six times a week and they'll say, “No comment.” They're going to say, “No comment”, because they're not going to tell you the who, what, where, when, or how. Even if they did, it's likely going to be, “I got it in a brown paper envelope, I have no idea who it is.”

So it seems to me that what it's going to come down to is that if you want to get really serious about this you're going have to either accept that it's going to happen, or you're going to have to say—and this is what Mr. Maingot's point was—that the publishing of it is what you have to attack. As long as there's political mileage in it for somebody, they can find a way of making it untraceable back to the media.

Mr. Derek Lee: In the murder mystery, you start with the dead body and you work back. If someone wishes to publish something knowingly that was in camera, I think you'd better ask them to be here and I think you'd better insist they answer the questions that are asked.

Mr. Chuck Strahl: It seems to me that unless somebody is going to impose penalties against the media, they're not going to bother answering to any of that.

Mr. Derek Lee: But you assume the committee would not be capable of making the witness answer a question. I would say to you that when it comes to parliamentary law, if a witness refused to answer a question, the witness would not go home that night and—

Mr. Chuck Strahl: But if the witness can't tell you anything, Derek—

Mr. Derek Lee: No, if the witnesses doesn't know, then—

Mr. Chuck Strahl: They never know. It's always a shrug of the shoulders and “I don't know. I had a phone call and they told me to look in the garbage can on the fourth floor, and doggone it, there it was.” It's like they don't know who—

Mr. Derek Lee: There's a difference between not knowing and refusal to divulge.

Mr. Chuck Strahl: There are people who want to leak reports. My point is that they'll just find a way to make sure nobody knows.

This is the other thing I'd like you to comment on, because I don't think, unless you want to do it on the media, there's any way you're going to get anybody to admit to anything. It seems to me that your other idea of developing a protocol is to make going in camera such a difficult thing, such a unique thing, that committees won't do it so routinely.

Mr. Derek Lee: That's okay.

Mr. Chuck Strahl: It seems to me it should be like a heck of a big event, and unless you can do that.... The Board of Internal Economy swear the oath, and seldom does a leak comes out of that board. But they swear the oath on a stack of bibles of some sort; I forget what type. I took the oath, and I don't know how I did it but I had to swear the oath. Most people who are on committees never swear an oath, and so they routinely go in and out of camera and nobody cares any more.

The Chairman: We do swear oaths as members of Parliament, Chuck.

Derek, can you be very brief or do you want to leave it?

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Mr. Derek Lee: I can leave that, unless Mr. Strahl wants a specific answer.

The Chairman: Mr. Solomon.

Mr. John Solomon: Thanks, Mr. Chair.

Derek, I appreciate your comments. I would like to know your opinion on whether or not there should be a distinction between reports specifically requested by the House of Commons by order of reference, versus those reports by committees that undertake their own investigations of all these topics that people don't care about sometimes and that sometimes are important. Should there be a distinction in terms of remedies for leaks or enforcement?

Mr. Derek Lee: I hadn't thought about that earlier, but it's a very interesting distinction. It has merit. If the House doesn't know a report is coming, and hasn't asked for it, the House may not be so offended when the issue goes public before it gets into the House. I think that's a useful distinction. It accords appropriate respect to the House and, at the same time, it gives the committee some flexibility.

Mr. John Solomon: So perhaps there should be some penalties for those orders of reference committees versus the other ones—a more severe penalty or some sort of penalty versus none.

Mr. Derek Lee: In the case of a matter not referred to the committee by the House, I'm not so sure. It's up to the committee what they want to do. It might prefer to have no in camera protection. But in matters that come from the House, I think it's up to all members of the House. But I think we should be trying to make sure that the report gets back to the House as requested by the House before it goes public.

Mr. John Solomon: The other question I had pertains to the quality of leaks. Some journalists will phone up a committee member and say, “I heard there are two or three points in the committee report that's going to be tabled tomorrow or next week; point A is this and point B is that, and so on. What do you think about these, because your colleagues have said this about them?” They'll do this versus getting the report with 69 recommendations. Is that a distinction as well, whether they actually have the hard copy versus just chatting to somebody about what might be coming up on one or two highlights of the report?

Mr. Derek Lee: The hard copy scenario is a lot easier—as you will agree, I'm sure—than the miscellaneous comments. I would have to say that in theory the miscellaneous comments are just as capable of offending and breaching the in camera protection rule as is the hard copy leak. But thinking back to Mr. Strahl's questions, your ability to sink your teeth into the actual breach of the in camera protection is more difficult when it's the miscellaneous comment. I know some of us have difficulty in the confidentially of our caucus meetings around here, where after a caucus meeting a member may discuss issues that may or may not have come up in caucus. The reporters are actually quite astute in assembling a picture of what went on in the caucus room just by triangulating a few questions with a few MPs.

So I don't have a final answer for you.

M. John Solomon: Thanks.

[Translation]

The Chairman: Mr. Harvey.

Mr. André Harvey: Mr. Chairman, first of all, let me just say that there is nothing more public than in camera proceedings. The fact that a meeting is in camera, that's what makes it interesting.

[English]

An hon. member: That's true.

[Translation]

Mr. André Harvey: In the past, have there been cases where leaks have had unfortunate repercussions, ideologically as well as financially? Have any leaks ever caused dramatic problems for our Parliament or for parliaments elsewhere in the world? I would appreciate hearing about a few such cases to get some idea of the gravity of the situation, or lack thereof. I'm interested in your views on the subject.

[English]

Mr. Derek Lee: I haven't done a lot of homework for the purpose of assembling real-life examples, but I would say the subject matter of the report that was allegedly leaked, or was leaked, and gave rise to the reference to this committee dealt with the policy of the Canadian government in relation to nuclear weapons, I think it was. That issue, while it was really important for everybody as the report was put together, had the ability to destabilize our country's international relationships. Nobody was really at risk, but a leak, as you point out, Mr. Harvey, from something in camera takes on a bit of credibility just because it's a leak. Something being leaked from a report of that nature, dealing with a subject that might have been at some point of sensitivity in Canada's relationship with other countries, might have had the ability to destabilize our international relations temporarily, unnecessarily, so not only would the leak offend the members, who had the ability to confidentially express themselves on the subject and to deal with delicate matters before the delicate matter was put into print, but it also had implications outside the committee room.

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So I think this by itself is a good example of why the in camera process is useful to have. At the end of the day, the committee members were going to decide what they were going to decide on the subject of that nuclear policy, but before it went out the front door all committee members deserved the ability to vet the package of the report and to understand the implications of the report for Canadian policy and international relations. So when the leak happened, the ability was partly lost, and it could have, and probably did, embarrass some members of Parliament.

The Chairman: Colleagues, I want to thank our colleague Derek Lee, not only for the time he spent with us today, but for the time he obviously has spent previously following our discussions. Derek, we really appreciate it. It's been very useful to us.

The word “advert” is one I hadn't heard in this sense before, but as chair of the committee, I would now like to advert you to the fact that we.... By the way, my plan is that if and when we move in camera we will then suspend for a short time—just so you know. But to advert you why, it's my intention to move in camera so that we can direct our researcher towards the development of a draft report.

That's reason one, and the second reason for moving in camera is so we can have lunch. So, colleagues—

Mr. Stéphane Bergeron: Or sandwiches.

The Chairman: —I would suggest that we move in camera. Agreed?

Some hon. members: Agreed.

Mr. Randy White: No.

The Chairman: Not agreed?

I would ask that somebody move that we move in camera.

Mr. Lynn Myers: I so move.

(Motion agreed to)

The Chairman: We move in camera, and, colleagues, we will now suspend for five or six minutes.