HAFF Committee Report

FIFTIETH REPORT

 

 

 

1.      The Committee is presenting this report in accordance with the order of reference from the House of Commons dated February 7, 2002:

 

That the charge against the Minister of National Defence of making misleading statements in the House be referred to the Standing Committee on Procedure and House Affairs

 

2.      In undertaking its examination of the subject matter of this order of reference, the Committee agreed to hear from the following witnesses, in order of appearance: Brian Pallister, M.P. (Portage-Lisgar), who raised the question of privilege in the chamber, and proposed the motion referring the matter to the Committee; William Corbett, Clerk of the House of Commons, and Rob Walsh, Law Clerk and Parliamentary Counsel of the House of Commons;  the Honourable Art Eggleton, P.C., M.P., Minister of National Defence; Vice-Admiral G.R. Maddison, Deputy Chief of the Defence Staff;  Jim Judd, Deputy-Minister of the Department of National Defence; General Raymond Heneault, Chief of the Defence Staff; Richard B. Fadden, Deputy Clerk of the Privy Council, Counsel and Security and Intelligence Coordinator; Mel Cappe, Clerk of the Privy Council and Secretary to the Cabinet; James R. Wright, Assistant Deputy Minister, Global and Security Policy, Department of Foreign Affairs and International Trade; and J.P. Joseph Maingot, Q.C., former Law Clerk and Parliamentary Counsel, House of Commons, and author of Parliamentary Privilege in Canada. In addition, members of the Committee were invited to submit questions in writing for Commodore Jean-Pierre Thiffault, Commander, Canadian Joint Task Force, South West Asia. A list of 80 questions was sent to Commodore Thiffault on February 20, 2002, and he replied on February 26, 2002. Subsequently, by letter dated 28 February 2002, he clarified one of his answers. The Committee greatly appreciates the assistance and co-operation of the witnesses, all of whom are extremely busy individuals with important responsibilities.

 

3.      A number of the witnesses were asked to provide information and documentation to the Committee. In addition, the Committee adopted a motion moved by Jay Hill, M.P. (Prince George-Peace River), requesting that 17 documents be tabled with the Committee. These documents – with the exception of one document and portions of others,  for which confidentiality was claimed – were provided to us.

 

4.      This order of reference arose from a question of privilege that was first raised in the House of Commons by Mr. Pallister on Thursday, January 31, 2002. Mr. Pallister argued that the Minister of National Defence had deliberately misled the House as to when he knew that prisoners taken by Canadian troops in Afghanistan had been handed over to the Americans. In support of that allegation, he cited the Minister’s responses in Question Period on two successive days –Tuesday, January 29, 2002 and Wednesday, January 30, 2002 – and alluded to a number of statements made to the media by the Minister. After interventions from a number of other Members, the Speaker took the matter under advisement.

 

5.      The Speaker ruled on the question of privilege the next day, Friday, February 1, 2002. He noted that the procedural authorities were consistent about the need for clarity in House proceedings and about the need to ensure the integrity of the information provided by the Government to the House. He also stated that, in this case, integrity of information was of paramount importance since it directly concerned the rules of engagement for Canadian troops involved in the conflict in Afghanistan, a principle that goes to the very heart of Canada's participation in the war against terrorism. The Speaker indicated that the facts did not appear to be in dispute, as both the Minister and other Members recognized that two versions of events had been presented to the House. He said that he was “prepared, as I must be, to accept the Minister’s assertion that he had no intention to mislead the House.”

 

6.      Referring to House of Commons Procedure and Practice, at page 67, the Speaker noted that the House claims the right to punish, as a contempt, any action that, although not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions, or that obstructs or impedes any Member or officer of the House in the discharge of their duties, or that is an affront against the dignity and authority of Parliament.

 

7.      The Speaker concluded:

 

On the basis of the arguments presented by hon. members and 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.

 

8.      Accordingly, Mr. Pallister moved that the matter be referred to the Committee. After a lengthy debate and several adjournments, the motion was adopted by the House on Thursday, February 7, 2002.

 

9.      Before examining the specific facts of this case, it is useful to review the nature of parliamentary privilege, particularly as it pertains to misleading statements. In this regard, the Committee greatly appreciates the advice and assistance of the Clerk of the House, Mr. Corbett.

 

10.  The classic definition of parliamentary privilege, found in Erskine May, is as follows:

 

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus, privilege, though part of the law of the land is, to a certain extent, an exemption from the general law.

 

11.  While the privileges of the House and its Members can be enumerated, there are other affronts against the dignity and authority of Parliament that may not fall within one of the specifically defined privileges. Contempts, as opposed to privileges, cannot be exhaustively listed. Contempts may vary greatly in their gravity: matters ranging from minor breaches of decorum to grave attacks against the authority of Parliament may be considered as contempts.

 

12.  The House enjoys wide latitude in maintaining its authority and dignity through the exercise of its power to investigate and discipline for contempt. In the same manner as the courts, the House claims the right to punish as a contempt any action which, although not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions, which obstructs or impedes any Member or officer of the House in the discharge of their duties or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands, or libels upon itself, its Members or its officers. In Odger’s Australian Senate Practice, the authors explain that the rationale for the power to punish contempts, whether contempt of court or contempt of the Houses, is that the courts and the two Houses should be able to protect themselves from acts that directly or indirectly impede them in the performance of their functions.

 

13.  There has never been a case in the Canadian House of Commons of a Member being found in contempt of the House for deliberately misleading the House. In his ruling, Speaker Milliken quoted the twenty-second edition of Erskine May about the consequences of deliberately misleading the House: “The Commons may treat the making of a deliberately misleading statement as a contempt.” This passage refers to the Profumo scandal in the United Kingdom in 1963: John Profumo, a Minister of the Crown, made a statement to the House about his involvement in the scandal and later admitted in the House that he had misled the House with that statement. He resigned his ministerial portfolio and his seat. It was felt that this affront to the House could not be allowed to pass without a formal censure, and the British House debated and adopted a motion finding Mr. Profumo guilty of a grave contempt of the House. In Parliamentary Privilege in Canada, second edition, at page 240, Mr. Maingot notes that a Member who admits to deliberately misleading the House would probably forthwith be the subject of a motion of contempt. This passage is based on the Profumo case.

 

14.  In the absence of any Canadian precedent, Mr. Corbett referred the Committee to Parliamentary Practice in New Zealand, by David McGee, Clerk of the New Zealand House of Representatives. It states, at page 491, that there are two ingredients to be established when it is alleged that a Member is in contempt for deliberately misleading the House:

 

·        the statement must in fact have been misleading, and

·        it must be established that the Member making the statement knew at the time the statement was made that it was incorrect, and that in making it the Member intended to mislead the House.

 

15.  As Mr. Corbett explained to the Committee, it is not uncommon for inaccurate statements to be made in the course of debate or Question Period in the House. The issue is whether the statements were made deliberately, with the intent of misleading the House or its Members. In the case where a Member later admits to having knowingly provided false information – as in the Profumo case – the issue of intent is clear. In the absence of such an admission, however, it rests with the Committee to examine all of the circumstances and determine whether the evidence demonstrates an intention to mislead.

 

16.  On the question of the standard of proof in such matters, the Committee notes that the Report of the United Kingdom Joint Committee on Parliamentary Privilege, Session 1998-99, stated, at p. 75 (paragraphs 280-1):

 

...[T]he procedures followed in the investigation and adjudication of complaints should match contemporary standards of fairness.

 

While fairness  is fundamental to any disciplinary procedure, the more serious the consequences, the more extensive must be the safeguards if the procedure is to be fair. Some allegations of contempt are more serious than others. ... In determining a member’s guilt or innocence, the criterion applied at all stages should be at least that the allegation is proved on the balance of probabilities. In the case of more serious charges, a higher standard of proof may be appropriate.

 

17.  While the basic facts of this particular case are relatively straight-forward, the context and surrounding circumstances are complex. Pursuant to resolutions of the United Nations and North Atlantic Treaty Organization (NATO), Canada is a member of a multi-national force in Afghanistan to fight terrorism.  As of the end of February, 2002, there were approximately 2,500 members of the Canadian Forces deployed to South-West Asia to provide naval, air and land force support to the coalition. The deployment of conventional forces in this campaign comes under Operation APOLLO. Commodore Thiffault is the commander of Canadian Forces at the Allied headquarters in Tampa, Florida. In late January, 2002, shortly before the events at issue, members of the Princess Patricia’s Canadian Light Infantry, stationed in Edmonton, were embarking for Afghanistan as part of these conventional forces.

 

18.  In addition to conventional forces, Canada’s special operations force, Joint Task Force 2 – or JTF2 – was deployed to Afghanistan as part of the Canadian contribution in late 2001. This unit has a unique and highly specialized capability in responding to terrorist threats to national security at home and abroad. The mission to Afghanistan represents the first time that JTF2 has been deployed abroad in a combat capacity.

 

19.  Rules of engagement are developed and approved for each unit that is sent abroad. These cover such things as the handling of prisoners. In the case of JTF2, the rules of engagement were determined at the time of its initial deployment. It was also essential, in the case of JTF2, that measures be put in place to protect the safety and security of the members of JTF2 and their families, to prevent adversaries from gaining any operational advantage over JTF2, and to minimize the risk of compromising the security of coalition operations. Testimony was given that, for these reasons, a very specific reporting procedure was developed for the JTF2 mission to Afghanistan. This provided that the commander of the JTF2 element deployed in Afghanistan reports directly to the Deputy Chief of Defence Staff, who, in turn, reports to the Chief of Defence Staff; he, in turn, reports to the Minister of National Defence, the only civilian in the chain of communication. It is up to the Minister to inform the Prime Minister if there is anything out of the ordinary or if there is any departure from the policy agreed to by the Government. Thus, the Prime Minister and the Privy Council Office are deliberately not part of the reporting procedure for JTF2, unlike the reporting procedure for conventional forces. The civilian side of the Department of National Defence, as represented by the Deputy Minister, is similarly not part of the chain, while on the military side, the number of persons in the process is severely limited.

 

20.  The Minister of National Defence is briefed on military operations on a daily basis. These briefings are generally conducted by the Chief of the Defence Staff. In his absence, the Deputy Chief of the Defence Staff briefs the Minister. These briefings cover the range of military operations within Canada and abroad, including Afghanistan and 12 other missions around the world. Given the urgency of the Afghanistan situation, however, it is evident that it has assumed priority in recent months.

 

21.  On Monday, January 21, 2002, the Minister of National Defence was in Mexico City on an official visit. He attended at the Canadian Embassy around noon, where a secure telephone line had been established, to receive his daily briefing from the military. In the absence of the Chief of the Defence Staff on this date, the briefing was conducted by VAdm. Maddison, the Deputy Chief of the Defence Staff, who was in Ottawa. 

 

22.  It appears that the briefing lasted about 20 minutes, and covered an array of subjects. Included was an update on the activities of JTF2. VAdm. Maddison’s recollection was that about five minutes was spent on this particular issue. The Minister was advised that the JTF2 had been involved in a multi-national operation in which detainees had been taken. Although members of JTF2 had been involved in previous missions where detainees were captured, this was the first time in which the Canadian personnel actually had possession of detainees. VAdm. Maddison testified that it was his understanding that the Minister was satisfied with the information that he had received, and understood it. In his testimony before the Committee, Mr. Eggleton indicated that his concerns were: first, that the troops were safe; second, that the mission was successful; and, third, that the mission was carried out in accordance with government policy and the rules of engagement as laid down by the Government. He continued:

 

I understood that such was the case and I therefore did not pursue the matter further at that time, and I did not phone the Prime Minister to inform him of the taking of detainees, since there was no diversion from government policy or the rules of engagement. The apprehension, Mr. Chairman, of alleged terrorists is the normal and expected outcome of this type of operation that they were sent to Afghanistan for in the first place.

 

23.  Following the completion of his Mexico itinerary, Mr. Eggleton visited the U.S. Central Command Headquarters in Tampa, Florida, on Wednesday, January 23, 2002, where he was briefed on the Afghanistan campaign by Commodore Thiffault and others. These briefings would have involved only the conventional forces. Mr. Eggleton returned  to Toronto that evening, and to Ottawa on the evening of January 24, 2002. On Friday, January 25, 2002, Mr. Eggleton attended a cabinet meeting – a “cabinet retreat.” He returned to his office at the Department of National Defence in the late afternoon, where he was informed that the issue of detainees was on the agenda for the cabinet meeting the following Tuesday.

 

24.  Mr. Eggleton testified that it was that Friday afternoon that he saw for the first time a photograph that had been published the previous Tuesday, January 22, 2002 on the front page of the Globe and Mail. It showed three detainees being escorted by three soldiers, with a United States’ aircraft in the background, with a caption referring to the soldiers as being from the United States. Noting the forest-green colour of the combat uniforms, however, Mr. Eggleton’s executive assistant said that he believed that the soldiers were actually JTF2 Canadians. Mr. Eggleton spoke to VAdm. Maddison, who confirmed that the photograph was, in fact, of JTF2 personnel – and, as such, represented a major breach of security. As Mr. Eggleton told the Committee: “Now, Mr. Chairman, the old saying that a picture is worth a thousand words was never truer. I was realizing, for the first time, the full extent of the involvement for Canadian troops in that operation.” Vadm Maddison confirmed that he told the Minister on January 25, 2002, that the photograph related to the briefing he had given on January 21, 2002. Satisfied that everything had been done in accordance with government policy and the rules of engagement, Mr. Eggleton proceeded with his preparation for the cabinet meeting.

 

25.  The House of Commons resumed sitting after the Christmas-January recess on Monday, January 28, 2002. That evening, there was a “take-note” debate on the deployment of Canadian Forces personnel in Afghanistan.

 

26.  The issue of the treatment of detainees by the United States had become increasingly controversial. Following the transfer of some detainees to the United States base at Guantanamo Bay, Cuba, there was an increasing public debate over the status of these detainees and the applicability, if any, of the Geneva Conventions. The debate about the detainees increased following the disclosure of differences of opinion between members of the U.S. cabinet. Various members of the Canadian Government had actively engaged U.S. authorities during the latter part of January on the issue of detainees, trying to ensure that they could get clarification not only as to how the detainees were going to be treated but also how their status was going to be determined.

 

27.  It was on Monday, January 28, 2002, that the Prime Minister was asked about detainees by the media, and he referred to that situation as being “hypothetical.” From a partial transcript of this exchange, it appears that the answer was given in the context of the members of the Princess Patricia’s Canadian Light Infantry, who were in the process of leaving for Afghanistan. The Prime Minister was not aware at this point that JTF2 personnel had taken charge of detainees the previous week. When he learned of the Prime Minister’s comment, Mr. Eggleton indicated that he regretted not having told him earlier; he subsequently apologized to the Prime Minister.

 

28.  As planned, the issue of detainees was discussed by the cabinet at its meeting on the morning of Tuesday, January 29, 2002. At the end of the presentation, Mr. Eggleton advised his colleagues of the fact that Canadian Forces personnel had taken detainees, and noted the photograph in the Globe and Mail. Following the meeting, Mr. Eggleton engaged in a media scrum, in the course of which he mentioned the newspaper photograph.

 

29.  Later, in Question Period, the Minister was asked by Gilles Duceppe, M.P. (Laurier-Sainte-Marie), the leader of the Bloc Québécois, when he became aware that individuals had been captured by Canadians and handed over to Americans. Mr. Eggleton responded:

 

I first became aware of the possibility on Friday. It required further examination to determine whether in fact Canadians were involved. I informed the Prime Minister and my colleagues in cabinet this morning to that effect.

 

30.  After returning to the Department of National Defence later that afternoon, Mr. Eggleton met with General Henault and VAdm. Maddison. Regarding the Minister’s answer in Question Period, he was reminded that he had been briefed on this issue on January 21, 2002. Asked to describe the Minister’s reaction, VAdm. Maddison said: “I think if I could put in sort of visual language, there was a click and right, you're right, that did happen that way. … I think he recognized, ‘I think I made a mistake here.’”

 

31.  Mr. Eggleton indicated that, having realized his mistake in not connecting the two briefings, he put the matter in the correct context the next day, Wednesday, January 30, 2002. During Question Period, he responded to a question from Elsie Wayne, M.P. (Saint John), by stating:

 

Mr. Speaker, I was first informed about the detention of prisoners and the mission within 24 hours of when it actually occurred. At that point in time, I was travelling in Mexico City on government business. I waited until my return so I could further explore the full extent of the mission that was involved.

 

Upon receiving all the necessary information, and particularly last Friday seeing for the first time the photograph which turned out to be related to that mission, I then informed the Prime Minister and cabinet on Tuesday morning.

 

32.  When Mr. Pallister raised the question of privilege on Thursday, January 31, 2002, Mr. Eggleton responded by providing an explanation for his answer on Tuesday, January 29, 2002, and stated:

 

Mr. Speaker, let me first of all say that at no time have I intended to mislead the House. I have the highest respect for the House and its members and I have always operated in a very straightforward fashion.

…

Again, at no time did I intend to mislead the House. I was answering with what I believed to be the correct information, and I will continue to conduct myself in that fashion in the House.

 

33.  During his appearance before the Committee, Mr. Eggleton repeated his explanation and apologized:

 

… [L]et me state emphatically that at no time have I intended to mislead the House of Commons. If that was the conclusion of some honourable members, then I indeed regret and apologize to the House and all members of the House for anything I have said that would leave such an impression.

 

34.  The two statements that Mr. Eggleton made in the House of Commons – on Tuesday, January 29, 2002, and Wednesday, January 30, 2002 – regarding when he was first informed that JTF2 had taken detainees are clearly contradictory. The issue is whether the first erroneous statement was made deliberately, with the intent of misleading the House or its Members. We are not concerned here with the Minister’s performance as a minister, nor with the chain of command or lines of communication in the military, the Department of National Defence, or the Government.

 

35.  The Minister of National Defence is briefed on an enormous number of issues each day – both orally and in writing, involving military operations and the complex range of activities carried on by the Department. In the period since September 11, 2001, it is clear that the volume of information has increased exponentially.

 

36.  During the briefing from VAdm. Maddison on Monday, January 21, 2002, Mr. Eggleton was in the midst of a hectic official visit to Mexico, with numerous engagements. He was briefed by telephone, via a secure line. Such briefings are never as satisfactory as when conducted face-to-face, but are dictated by circumstances. It is possible that the information and its significance was not fully grasped at this time. Mr. Eggleton indicated that what he had been told became much clearer on Friday, January 25, 2002 when he saw the photograph from the Globe and Mail, and had a meeting in person with VAdm. Maddison on the issue.

 

37.  Mr. Eggleton apologized before the Committee. He has provided a detailed explanation of how the confusion arose. It should be noted that it was Mr. Eggleton who corrected the record on January 30, 2002, not someone else.

 

38.  In the opinion of the Committee, Mr. Eggleton made a mistake. This is regrettable.

 

39.  Intent is always a difficult element to establish, in the absence of an admission or confession. It is necessary to carefully review the context surrounding the incident involved, and to attempt to draw inferences based on the nature of the circumstances. Any findings must, however, be grounded on facts and have an evidentiary basis. Parliamentary committees charged with examining questions of privilege must exercise caution and act responsibly in drawing conclusions. They must guard against allowing partisanship to colour their judgement. The power to punish for contempt must not be exercised lightly. It exists for those rare occasions when Parliament’s ability to function is impeded or compromised.

 

40.  Incorrect statements in the House of Commons cannot be condoned. It is essential that Members have accurate and timely information, and that the integrity of the information provided by the Government to the House is ensured. Mistakes are made from time to time, and they must be corrected promptly. It is only a deliberately incorrect statement that comes within the meaning of a contempt of Parliament. In the words of Parliamentary Practice in New Zealand: “it must be established that the Member making the statement knew at the time the statement was made that it was incorrect, and that in making it the Member intended to mislead the House.”

 

41.  After a thorough review of all the circumstances, the Committee has come to the conclusion that the Minister made a mistake, but that it was done without any intent to confuse or mislead.

 

The Committee finds that there is no evidence that Mr. Eggleton deliberately misled the House in his two statements in the House of Commons on January 29, 2002 and January 30, 2002, as to when he knew that prisoners taken by JTF2 troops in Afghanistan had been handed over to the United States. Accordingly, the Committee concludes that no contempt of the House was committed by Mr. Eggleton.

 

 

A copy of the relevant Minutes of Proceedings (Meetings Nos. 43 to 55) is tabled.

 

Respectfully submitted

 

PETER ADAMS, M.P.

 

 

Chair