Committees / Committee Powers

Sending for documents: scope of a standing committee’s mandate; sub judice convention; separation between branches of government

November 21, 2011

Debates, pp. 3337–8

On November 14, 2011, Joe Comartin (Windsor—Tecumseh) rose on a point of order concerning a motion adopted by the Standing Committee on Access to Information, Privacy and Ethics.^[1] As part of a study, the Committee adopted a motion ordering the production of certain documents from the Canadian Broadcasting Corporation (CBC) which were the subject of ongoing litigation. Mr. Comartin contended that the adoption of the motion and the study subsequently initiated by the Committee went beyond its mandate and violated the sub judice convention and the constitutional separation of the legislative and judicial branches. He asked that the Speaker direct that the study be either discontinued or suspended until the conclusion of court proceedings. Other Members made comments and the Speaker took the matter under advisement.^[2] On November 15, 2011, Peter Van Loan (Leader of the Government in the House of Commons) argued that committees are masters of their own proceedings and that, in the absence of a report from the Committee, the circumstances did not merit the intervention of the Speaker. The Speaker took again the matter under advisement.^[3]

Resolution

On November 21, 2011, the Speaker delivered his ruling, stating that the weight of precedent was in favour of not intervening in the absence of a committee report to respect and preserve the primacy of committees in their proceedings and that the role of the Speaker in such matters does not stray beyond what has been established over time. Furthermore, he noted that, since the documents in question had been provided in a sealed envelope pending further decisions from the Standing Committee on Access to Information, Privacy and Ethics, the Committee still had the opportunity to resolve the matter, and any intervention from the Chair would be premature.

Decision of the Chair

The Speaker: I am now ready to rule on the point of order raised by the hon. Member for Windsor—Tecumseh on November 14 regarding proceedings in the Standing Committee on Access to Information, Privacy and Ethics, with respect to its study of access to information at the Canadian Broadcasting Corporation, the CBC.

I would like to thank the Member for Windsor—Tecumseh for having raised this matter and for having provided me with helpful background material. I would like as well to thank the Leader of the Government in the House of Commons, the Minister of State and Chief Government Whip, and the Members for Winnipeg North and Saanich—Gulf Islands for their interventions.

The matter raised by the Member for Windsor—Tecumseh revolves around a motion adopted by the Standing Committee on Access to Information, Privacy and Ethics ordering the Canadian Broadcasting Corporation to provide the Committee with certain documents which are currently the subject of court proceedings involving the CBC and the Information Commissioner.

While acknowledging the long-standing principle that committees are masters of their own proceedings, the hon. Member argued that the freedom committees enjoy is neither total nor absolute. More importantly, he argued that since the documents in question are already the subject of ongoing litigation before the Federal Court of Appeal, the Committee was effectively trying to substitute its decision for that of the courts and, in doing so, had offended the sub judice convention and the constitutional principle of the separation of powers between the legislature and the judiciary. In other words, the Member for Windsor—Tecumseh is claiming that the Committee has gone beyond the scope of its mandate.

In seeking the Chair’s intervention in this matter, the hon. Member presented this situation as just the kind of exceptional instance where my predecessors sanctioned the intervention of the Speaker, and so he seeks specific remedies from the Chair: he asks either that I direct the Committee to cease the study it has initiated or that I at least direct the Committee to suspend its study until litigation has run its course.

For his part, the hon. Leader of the Government in the House of Commons agreed that committees are masters of their own proceedings and acknowledged that there might be circumstances where the involvement of the Speaker in a committee matter might be justified. However, he stated that he had heard no compelling argument to warrant the Speaker’s intervention in this particular case, notably in the absence of a report on the matter from the Committee.

With regard to the substantive arguments advanced, let me state at the outset that I acknowledge the seriousness and sincerity with which Members have approached this matter. It is evident to the Chair that the Member for Windsor—Tecumseh and other Members are deeply concerned with the turn of events thus far in the Standing Committee on Access to Information, Privacy and Ethics. At the same time, the Chair recognizes the persuasiveness of the arguments put forward by the Government House Leader in relation to the weight of precedent when it comes to intervening in the affairs of a committee without the benefit of a report relative to the activities that are being questioned.

In a ruling on May 10, 2007, regarding the alleged intimidation of witnesses in a committee, Speaker Milliken agreed that successive Speakers have been reluctant to intervene in committee proceedings. At that time, he stated at page 9288 of Debates:

 ... it would be highly inappropriate for the Speaker to break with our past practice and pre-empt any decision the committee may choose to make. The committee is seized of the issue and if a report is presented I will of course deal with any procedural questions which may be raised as a result. Until such a report is presented however, I must leave the matter in the hands of the committee.

In a similar ruling delivered on March 14, 2008, at page 4182 of Debates, in reference to the mandate of the same Standing Committee as the one at issue today, Speaker Milliken said:

For the present, I cannot find sufficient grounds to usurp the role of committee members in regulating the affairs of the Standing Committee on Access to Information, Privacy and Ethics. However, if and when the committee presents a report, should Members continue to have concerns about the work of the Committee, they will have an opportunity to raise them in the House and I will revisit the question at that time.

The Chair does not wish to minimize the importance of the issues raised but rather to respect and preserve the primacy of committees in their proceedings, and to ensure that the role of the Speaker in such matters does not stray beyond what has been established over time.

On this point, the Chair wishes to remind the House that in the oft-cited Speaker Fraser ruling with regard to “extreme situations” in which the Chair might choose to intervene, Speaker Fraser was confronted with the likelihood that it might be months before the committee then in question could convene to resolve the matter. Obviously, the case before us today presents completely and significantly different circumstances.

In terms of the situation at hand, I am aware that the Chair of the Standing Committee on Access to Information, Privacy and Ethics has stated in a memorandum to members of the Committee that she believes that the Committee “ ... should wait until the Speaker has ruled on this matter before proceeding with meetings on the study of access to information at the CBC”.

For his part, the Government House Leader has implied that an intervention by the Speaker at this juncture “ ... is premature because the Chair could have more relevant timing down the road to entertain these issues if and when this matter evolves through a report from the Ethics Committee”.

It should also be noted that the Committee has received certain documents from the CBC, some of which are, as I understand it, still in a sealed envelope awaiting further decisions by the Committee.

This indicates to me that there remains room in further deliberations by the Committee for a thorough airing of the serious issues that have been raised and, potentially, for a satisfactory resolution of the current situation. In the interests of giving the Committee time to address the issues with which it is confronted, I am reluctant to insert myself into the substance of this matter at this early stage until events in Committee play themselves out.

Accordingly, given the circumstances I have just described, the Chair believes that it should not at this time presume to prejudge the direction and outcome of the Committee’s deliberations. Therefore, the matter must rest with the Committee for the time being.

I thank all Members for their attention.

Postscript

On November 24, 2011, the Committee agreed to return the sealed documents to the CBC, and that the unsealed documents would be considered at an in camera meeting to ensure their confidentiality.^[4]