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PEAR - Special Committee

Pearson Airport Agreements (Special)

 

The Power to Send for Persons, Papers and Records:

Theory, Practice and Problems


(Report of the Chairman and the Deputy-Chairman)<1>

On May 4th, 1995, the Special Senate Committee on the Pearson Airport Agreements was established. The mandate of the Committee was to examine and report upon all matters concerning the policies and negotiations leading up to, and including, the agreements respecting the redevelopment and operation of Terminals 1 and 2 at Lester B. Pearson International Airport and the circumstances relating to the cancellation of the agreements.

One of the powers given to the Pearson Special Committee by the Senate was the "power to send for persons, papers and records".<2> This power is central to the ability of the Committee to discharge its responsibility of conducting a complete and thorough inquiry into Pearson agreements. Without access to all relevant information, the Committee simply would not be able to carry out the mandate it had been given by the Senate.

Part One of this paper examines the nature and scope of the powers of parliamentary committees and the manner in which those powers have traditionally been exercised. Part Two provides on overview of the process whereby documents were made available to the Pearson Committee. The categories of information that were withheld from the Committee and the reasons given by government officials for doing so are also reviewed. The last part of the paper examines the frustrations and difficulties encountered by the Pearson Committee in its efforts to obtain full disclosure of all relevant information and concludes with a list of recommendations.

This paper is prepared in the hope that members of future parliamentary committees will benefit from the experiences of the Pearson Committee and that a better understanding and a greater measure of respect for the powers of parliamentary committees will be achieved in the future.

Part One: The Theory

The right of the Senate and the House of Commons to institute inquiries is fundamental to the parliamentary committee process. This right forms an integral part of the lex parliamenti or law of Parliament. As Diane Davidson, general legal counsel for the House of Commons, observes, parliamentary committees are empowered by either the House and/or the Senate: "to examine and inquire into matters referred to them on behalf of the respective Houses, where it would, for obvious reasons, be impractical for the parent bodies themselves to operate".<3> Parliamentary committees are thus an extension of either the House of Commons or the Senate and enjoy the same extensive privileges, immunities and powers given to the two Houses and its members<4> under the constitution<5> and the Parliament of Canada Act<6>.

The powers of standing committees are set out in Rule 91 of the Senate Rules<7> and in Standing Order 108(1) of the House of Commons<8>. Ms. Davidson comments on the importance of these two provisions which:

... include the innocuously-stated authority to "send for persons, papers and records." No distinctions are made between different types of documents or categories of witnesses. The very simplicity of the words granting this authority would appear to belie the strength of the power thereby delegated. When coupled with the rights a committee enjoys as a constituent part of Parliament these are very full powers indeed.

What these grants of power mean, of course, is that, provided a committee's inquiry is related to a subject-matter within Parliament's competence and is also within the committee's own orders of reference, Committees have virtually unlimited powers to compel the attendance of witnesses and to order the production of documents. (emphasis added)<9>

Support for this position can be found in a ruling made by the Speaker of the House of Commons in March, 1987:

I think it is important to emphasize, in case there should be any misconception in any quarter concerning the powers and functions of parliamentary committees, that committees appointed by this House are entitled to exercise all or any of the powers that this House delegates to them. ... The powers of standing committees to initiate investigations have recently been extended in the spirit of parliamentary reform. ... The scope of operations of standing committees has thus been considerably widened and the power to summon public servants as witnesses is essential to the effective performance of their tasks. It can be expected that this power will be used more, not less, frequently in the future, and I think it is salutary to alert all those concerned to this fact of parliamentary life. (emphasis added)<10>

A witness appearing before a parliamentary committee is bound to answer all questions put to him or her and cannot be excused on such grounds as solicitor-client privilege, an oath not to disclose information has been given, or responding would risk self-incrimination. A witness, however, may appeal to the chair and give reasons as to why the information requested should not be disclosed.<11> In such circumstances, committees will often endeavour to strike a compromise whereby the desired information is obtained in a manner that still respects the concerns of the witness. An example of such a compromise would be to consider the desired information in camera. In the final analysis, however, "witnesses must rely on the collective common sense of the members of the committee and their good graces".<12>

Where a committee's request for documents is refused and the committee, after having reviewed the reasons given for the refusal, still insists on disclosure, the committee may report the matter to the Senate or the House. Final determination as to if and how an order for production is to be enforced is left up to the Senate or the House itself.<13>

Although in theory the powers of parliamentary committees are clear, as the rest of this paper will reveal, attempts to obtain disclosure of information from the Government can prove to be an uphill battle. As Joseph Maingot recently remarked:

The acknowledged powers of committees to call for persons, papers and records had always been a question of some nicety as it related to persons or institutions that were responsible to a Minister of the Crown, at least in Canada. This has always been a "grey" area in practice, albeit clear in theory. However there simply has not been any serious attempt to press the matter until recent times.<14>

Part Two: The Process

The Senate put before the Committee a very demanding and onerous task. It was necessary for the Committee to inquire into events that occurred over a period of approximately six years. These events involved numerous discussions and deliberations over policy issues by several government departments as well as a complex and detailed set of negotiations between the Government and the private sector in relation to one of Canada's most valuable assets.

Undaunted, the Committee set for itself an aggressive timetable for the completion of its inquiry. The Committee was established on May 4, 1995. In early June, the Committee resolved to commence its hearings in early July. It is estimated that there are approximately 200,000 pages of documents in government files relating to the Pearson Agreements.

Gathering and Organizing the Documents

The Department of Justice was given the responsibility for making government documents available to the Committee. To assist them in this massive undertaking, the Department of Justice retained the services of the law firm of Scott & Aylen. The role of Scott & Aylen was twofold. First, the relevant documents had to be gathered in one place and organized according to the witnesses who were scheduled to appear before the Committee. Scott & Aylen retained the services of a firm of forensic accountants, Lindquist Avey, to assist them in this task. Second, Scott & Aylen reviewed the relevant documentation with government and non-government witnesses in order to prepare them for their appearance before the Committee.

The following is an outline of the process that was followed in making documents available to the Committee:

  • All relevant government departments were asked to identify any documents that might be of potential interest to the Committee;
  • Copies of all the documents were made and delivered to Lindquist Avey on June 13th, 1993;
  • Lindquist Avey created a data base so that relevant documents could be recalled on a subject matter and potential witness basis;
  • As witnesses were identified and the order of their appearance before the Committee became known, Lindquist Avey personnel gathered together those documents authored or received by the witness or that were otherwise relevant;
  • A team of public servants from the Department of Justice and the Privy Council Office reviewed the documents; material relating to cabinet confidences, matters of personal or commercial privacy, advice to ministers and documents protected by solicitor-client privilege were removed and the expurgated documents were then sent back to Lindquist Avey;
  • The expurgated documents were placed in binders, an index for each binder was prepared, and the documents were sent to the Clerk of the Committee who made them available to Committee members.

A total of 103 volumes of documents were delivered to the Committee, a volume typically containing approximately 350 pages.

The Vetting Process

In deciding which information was to be withheld from the Committee, officials from the Department of Justice and the Privy Council Office followed the principles embodied in the Access to Information Act.<15> Although this Act is not applicable to parliamentary committees requesting information, George Thomson, Deputy Minister of the Department of Justice, testified before the Committee that the principles traditionally followed by the Government in deciding what information to make available to parliamentary committees are the same as those set out in the Act.<16>

When passages in a document were excised, a section of the Access to Information Act was cited so as to communicate some understanding of the type of information that was being protected. The following is a list of sections of the Access to Information Act commonly cited by the government censors:

Section 19 Personal Information

Section 20 Third Party Confidential Commercial Information

Section 21 Advice to a Minister

Section 23 Solicitor-Client Privilege

Section 69 Cabinet Confidences

A discussion of each category of confidential information follows beginning with those areas considered to be the most sensitive.

1. Cabinet Confidences

The importance of cabinet confidentiality is well-established in the British and Canadian parliamentary systems. A list of documents that are typically considered cabinet confidences can be found in s. 69 of the Access to Information Act.<17>

Ms. Margaret Bloodworth, Deputy Clerk and Counsel to the Privy Council Office, explained to the Committee the rationale for protecting cabinet confidences:

Cabinet is the forum in which ministers reach consensus on actions that individual ones of them may take. Providing a forum in which ministers are free to express their individual opinions to their cabinet colleagues, vigorously debate issues and come to a consensus on how to proceed, ensures that the full range of views can be taken into account before any decision is arrived at. It also ensures that ministers can collectively support all decisions taken and answer for them before Parliament.

The collective decision-making of ministers in cabinet is the key process for ensuring solidarity among ministers and their ability to retain the confidence of Parliament to which they are collectively responsible. If ministers are to be able to make decisions collectively, the privacy of their opinions and views relative to the evolution of government policy must be protected. If these opinions were made known before or after the decisions were taken, it would be difficult to maintain the solidarity and consensus among ministers which is essential to cabinet government.<18>

2. Advice to Ministers

Advice to ministers with regard to issues that are considered by cabinet falls within the category of cabinet confidences. However, public servants may also give advice to a minister on a matter that an individual minister can deal with without going to cabinet. Section 21 of the Access to Information Act defines the parameters of this category.<19>

Ms. Bloodworth testified that this type of information is kept confidential "in order to ensure that public servants provide full and frank advice and that ministers remain accountable and responsible for the ultimate decision, not public servants".<20>

3. Solicitor-Client Privilege

Advice that a government department receives from its counsel is subject to solicitor-client privilege and the Government will not disclose that information unless the client (the government department) waives the privilege. The rationale for the privilege was briefly explained by Mr. Thomson:

Often when giving legal advice, very hard and complex decisions are called for involving judgments as to trade-offs and possible options. To disclose legal advice in such circumstances can run the risk of producing a chilling effect on full and frank discussion between a client, or a client-department in this case, and their lawyers. In addition, such disclosures can have serious implications with respect to present and future litigation before the courts.<21>

4. Business Confidences

Consents were obtained from the major private sector companies involved in the Pearson transaction to release confidential business information relating to the negotiations and conclusion of the Pearson agreements. Where consent had not been obtained, this information was not provided.<22>

5. Personal Information

The rationale for keeping personal information is self-evident. Personal information is defined in section 3 of the Privacy Act, R.S.C. 1985, c. P-21.

Part Three: The Difficulties

1. Information Initially Not Available In A Timely Fashion

In the early stages of the hearings, committee members were frustrated by the fact that they were given very little time to review the documents. On one or two occasions, voluminous documents were released less than a day before the appearance of the witness. Given the tight timetable, the enormous set of documents that needed to be organized and reviewed, and the large number of government and non-government people involved in the document disclosure process, it is perhaps not surprising that this problem arose. Much more disturbing is an incident that occurred just prior to the completion of the hearings.

In early September, the Committee was advised that there remained a number of documents that had not yet been released because they did not relate to a witness who testified or were outside the time frame or subject area of the witness' anticipated evidence. The Justice Department further indicated that the documents were currently being reviewed and would be released in the near future. No mention was made again of these documents until they were delivered to the Clerk's office at 4:00 pm on Friday, November 3rd. The last day of hearings was scheduled for the following Monday.

The release of these documents at the eleventh hour was highly disconcerting. Justice officials made no effort to give the Committee advance notice that these documents were about to be released. Moreover, Committee members were very disturbed to discover that a number of the documents were highly relevant and related directly to the evidence already given by earlier witnesses. The explanation offered by the Justice Department was that these particular documents were simply overlooked during the initial review.

In August, the Committee was informed that there still remained a large number of undisclosed, non-confidential documents. In the opinion of the Justice Department, these documents would not be of interest to the Committee. Justice officials agreed to produce a master list of these documents. On November 16, 1995, four months after the inquiry was commenced and after the Committee had completed its hearings, the master list of 6,015 documents was provided to counsel.

2. Refusal of Public Servant Witnesses to Answer Questions

A second difficulty that arose during the opening days of the inquiry was the refusal of some key senior federal public servants to answer directly questions put to them by committee members. The officials claimed special status on the grounds of ministerial confidences and their public service oath of secrecy.

Reference was made to a set of Privy Council guidelines entitled "Notes And Responsibilities of Public Servants In Relation To Parliamentary Committees".<23> Under the heading "Answers to Questions put by Committee", the following advice is given:

Witnesses testifying before Parliamentary committees are expected to answer all questions put by the committee. However, additional considerations come to bear in the case of public servants, since they appear on behalf of the Minister.

Public servants have a general duty, as well as a specific legal responsibility, to hold in confidence the information that may come into their possession in the course of their duties. ...

In the most general terms ... public servants have an obligation to behave in a manner that allows Ministers to maintain full confidence in the loyalty and trustworthiness of those who serve them. ... If they violate that trust on the grounds that they have a higher obligation to Parliament, then they undermine the fundamental principle of responsible government, namely that it is Minsters and not public servants who are accountable to the House of Commons for what is done by the Government. (emphasis in original)<24>

It is submitted that this position is inconsistent with the views expressed in Part One of this paper. Erskine May, for instance, explicitly states that:

A witness is, however, bound to answer all questions which the committee sees fit to put, and cannot be excused, for example, on the ground that ...an oath has been taken not to disclose the matter under consideration ...<25>

Similarly, Joseph Maingot claims that:

A witness must answer all questions put to him, subject only to points of order by a member, with the right of the chairman to make a ruling.<26>

The Committee, however, decided not to press the witnesses for the desired information since Mr. Jean Corbeil, the former Minister of Transport, was scheduled to appear and the necessary information could be obtained at that time.<27>

3. The Swearing of Public Servants

The Committee had the power to examine witnesses under oath. Prior to the commencement of the hearings, it had been suggested that requiring witnesses to be sworn was unnecessary because all witnesses testifying before parliamentary committees are expected to tell the truth and inappropriate because requiring sworn testimony would judicialize the hearings and foster an atmosphere of mistrust and confrontation. Traditionally, it has not been customary for public servants appearing before canadian parliamentary committees to be sworn.

Nevertheless, the Committee elected to exercise its power and have witnesses sworn. The reason for doing so was to impress upon the witnesses appearing before the Committee the seriousness of the inquiry. Recognizing that many of the public statements that had been made about the Pearson Agreements were based on opinion, innuendo and suspicion, the Committee was determined to get at the facts. It was hoped that testifying under oath would encourage witnesses to be forthcoming and to give serious thought to the matters being discussed. Where opinions were expressed, witnesses would be expected to present evidence to substantiate those opinions.

Concerns were expressed that requiring public servants to testify under oath could place them in a position of conflict between the oath to tell the "whole truth" and their duty of confidentiality to their Minister. One senior public servant, for instance, agreed to be sworn but added the following condition: "consistent with my oath of office".<28>

It was the Committee's view that there is no conflict between a public servant's oath not to disclose ministerial confidences and an oath to tell the whole truth. The latter simply requires witnesses to give truthful and complete evidence on those matters which statutory rules and accepted conventions and practices permit the witness to testify about.

4. Inconsistent and Excessive Editing of Documents

It was acknowledged by Mr. Thomson, Deputy Minister of Justice, that the document disclosure process was not perfect.<29> At times, the process was not inclusive enough. Confidential handwritten notes on the bottom of memoranda from the Clerk of the Privy Council to the Prime Minister, for example, were inadvertently disclosed. On two occasions, uncensored documents were accidentally released from the office of the Minister of Justice to senators' assistants. At other times, documents that were censored were made available elsewhere uncensored.

More significantly, however, was the degree to which the documents were vetted and the absence of a mechanism whereby the committee could satisfy itself that information was being properly withheld. On one occasion, for instance, committee members were surprised by the number of deletions under section 23 (solicitor-client privilege) of a relatively innocent memo of a meeting in the Department of Transport. When a complete copy of the document was finally obtained, it was discovered that what was withheld was not lawyer's opinions, but only lawyers' names!

This example underscores the problem faced by the committee. When a document contains a deletion with a bold statement, such as "s. 23", the committee had no way to satisfy itself that the information was properly withheld.

As a possible solution, it was proposed that counsel to the Committee, after taking an oath of confidentiality, have an opportunity to review the uncensored government documents so as to ensure that the appropriate principles had been applied properly. Reference was made to the fact that other non-government people - Scott & Aylen, Lindquist Avey, and Mr. Nixon - were allowed to review confidential documents after having taken an oath of confidentiality.

The proposal, however, was rejected on the grounds that counsel to the Committee was not an agent of the Government unlike the others mentioned above.<30>

5. The Application of Solicitor-Client Privilege

On a number of occasions, information was withheld from the Committee on the basis of solicitor-client privilege. Solicitor-client privilege is not opposable to the power of a committee to obtain information.<31>

Mr. Thomson, however, testified that the following principles should be followed with respect to claims of solicitor-client privilege:

i. The privilege belongs to the client, not the lawyer, and accordingly, the client may waive it.

ii. Even if the privilege does apply and the client refuses to waive it, the committee ultimately has the right to require that the information be disclosed.

iii. Committees should rarely exercise that right because of the chilling effect the disclosure of privileged information will have on the solicitor-client relationship and because of the implications that can arise in relation to external litigation. Justice lawyers should be given an opportunity to make representations as to why the information should not be disclosed.

iv. In circumstances where the committee insists upon disclosure and the client refuses to waive the privilege, discussions should take place as to how the information might be put before the committee in a manner that is least damaging to the client and the solicitor-client relationship.

v. In cases where an agreement cannot be reached, the Committee can ultimately refer the matter to the Senate or the House for final determination.

In response to a request by the Committee to have Department of Justice lawyers appear before the Committee to testify with respect to legal advice they gave or may have given relating to when the Government was legally bound by the Pearson agreement, Mr. Thomson expressed strong reluctance. Mr. Thomson argued that the Committee already had the views of the Government's chief negotiator on this issue and, given the fact that no legal advice was actually given, it was not the appropriate role for Justice lawyers to give legal opinions to a parliamentary committee as to what might have been the liability of the Government if an opinion had been requested.

After two invitations to appear were declined, the Committee summoned the witnesses. The justice officials, claiming that they were appearing "voluntarily", agreed to testify as to what advice was given but not what advice might have been given if asked.

6. The Failure Of The Committee To Obtain Key Treasury Board Documents

The last and certainly one of the most frustrating problems encountered by the Committee relates to its unsuccessful attempts to obtain disclosure of some highly relevant Treasury Board documents.

In August 1993, Treasury Board was asked to its give its approval for the Minister of Transport to conclude the Pearson agreements. To assist in its deliberations, documents containing internal government advice and analysis, including a review of the potential dangers and risks associated with the Pearson agreements, were submitted to Treasury Board.

Ms. Bloodworth testified that these Treasury Board submissions are confidential cabinet documents of the Campbell government. There exists, she explained, in Canada a well-established convention, respected by successive governments, that a newly elected administration may not have access to the confidential cabinet documents of previous governments. When a change of government occurs, cabinet records are left in the custody of the Clerk of the Privy Council.<32>

Contrary to this alleged convention, the August 1993 Treasury Board submissions were released to Mr. Nixon, ostensibly in error, shortly after he was appointed by Mr. Chretien to conduct a review of the Pearson agreements. When Mr. Nixon and his staff appeared before the Committee, it was discovered that not only had they reviewed these documents, they had relied heavily on various parts of them for sections of their final report. Mr. Stephen Goudge, Mr. Nixon's legal advisor, testified as follows:

Did I derive support for some of the things in the Treasury Board's submissions? Absolutely yes, absolutely yes. I mean I did; there is no question about it. When I put forward my memorandum to Mr. Nixon, parts of it relied heavily on what was in the Treasury Board submission.<33>

The release of the Treasury Board submissions to Mr. Nixon underscores the fact that materials of this nature are not commonly regarded as cabinet records. So-called cabinet records consisting of reports containing background analysis and discussion should be made available to a parliamentary committee, particularly in this case, where they were given to Mr. Nixon and influenced his decision.

In addition to citing the rules relating to cabinet confidentiality, Privy Council officials also indicated that the release of these documents without the authorization of former Prime Minister Kim Campbell would constitute a violation of the convention restricting access to the confidential papers of previous ministries. It is our belief that the practice of refusing access to members of the incoming government to the papers of previous governments applies, and should only apply, to politically sensitive, inner cabinet records. The Treasury Board submissions sought by the Committee clearly do not fall within this narrow category.

To complicate matters further, the Treasury Board documents were leaked to a reporter, Greg Weston, at the Ottawa Citizen in September, 1993. On September 25th and 26th, 1993, two articles appeared in the Ottawa Citizen in which Mr. Weston relied heavily upon the information contained in the Treasury Board submissions to harshly criticize the Pearson agreements.<34> More recently, on September 25th, 1995, Mr. Weston wrote another column claiming that the Senate inquiry into the Pearson agreements was a waste of time and money because, without the Treasury Board submissions, the Committee did not have the full picture.<35>

In response, the Committee twice invited Mr. Weston to appear and to make the Treasury Board documents available. The managing editor, on behalf of Mr. Weston, declined the Committee's invitations, on the basis that the Committee should seek access to the documents from the Government. When it was pointed out to the managing editor that the Committee has no way of knowing exactly what documents Mr. Weston has in his possession and was relying upon to cast suspicion over the Committee's inquiry, the newspaper agreed to publish an additional article outlining exactly what documents Mr. Weston possesses.<36>

The Committee then proceeded to issue a report to the Senate asking that an address be made to the Governor General requesting that the Treasury Board submissions be made available to the Committee. The procedure for an address to the Governor General requesting the disclosure of documents finds its authority in Rule 133 of the Rules of the Senate.<37>

According to the Manual of Official Procedure of the Government of Canada, the confidentiality of the advice contained in cabinet documents belongs to the Governor General and it is within his or her prerogative to release the documents:

Disclosure of Cabinet records is regulated by the Privy Councillor's oath and by the concept that Cabinet decisions are advice to the Sovereign which may only be revealed with his consent. Permission is sought through the Prime Minister who may recommend to the Governor General that it be granted, limited or refused.<38>

This matter is currently before the Senate.

Recommendations

1. Improved Co-operation From The Department of Justice

Despite claims from government officials that every effort was made to release documents as quickly as possible, we believe that there remains considerable room for improvement in the documents disclosure process. The abrupt disclosure of relevant documents, for instance, just prior to the last day of hearings and more than four months after the hearings had commenced, was, in our opinion, unacceptable. Moreover, the failure to provide before the end of the hearings a list of non- confidential documents that had not been disclosed is indicative of the general reluctance of the Department of Justice to release information<39> and the need for improved co-operation.

We recommend that the Special Joint Parliamentary Committee referred to in Recommendation 5 be asked to work with Justice Department officials to establish rules for the handling of documents in future inquiries.

2. Excessive Application of Solicitor-Client Privilege

It became obvious from the number and location of deletions in the documents made on the basis of solicitor-client privilege that the Justice Department's application of this privilege was clearly excessive.

We are in strong agreement with the views expressed by the Information Commissioner of Canada:

Most legal opinions, however stale, general or uncontroversial, are jealously kept secret. In the spirit of openness, the government's vast storehouse of legal opinions on every conceivable subject should be made available to interested members of the public.

Tax dollars [are] paid for these opinions and, unless an injury to the conduct of government affairs could be reasonably be said to result from disclosure, legal opinions should be disclosed.<40>

We recommend that Parliamentary Committees be given the right of access to legal opinions prepared by Justice Department staff unless those opinions would jeopardize the government's position in an issue which is before, or is likely to come before, the courts. The precise rules governing access to legal opinions should be developed by the Special Joint Parliamentary Committee referred to in Recommendation 5.

3. Narrowing the Interpretation of Cabinet Confidences

Throughout the hearing, members of the Committee made a conscious effort to respect cabinet confidences. However, we question whether the principle of cabinet confidentiality was being interpreted too broadly by government officials.

In 1986, the House of Commons Standing Committee on Justice and Solicitor-General issued a unanimous report entitled Open and Shut: Enhancing the Right to Know and the Right to Privacy. After reviewing the reasons for keeping cabinet records confidential, the committee remarked:

Nevertheless, the Committee does not believe that the background materials containing factual information submitted to Cabinet should enjoy blanket exclusion from the ambits of the Acts (Privacy and Access). It is vital that subjective policy advice be severed from factual material found in Cabinet memoranda ... [But] factual material should generally be available under the Act ...<41>

We strenuously disagree with the reasons given by the Privy Council Office as to why the Treasury Board submissions discussed earlier should not be disclosed to the Committee. It has to be remembered that these documents merely contain background factual analysis and that the documents were released to Mr. Nixon and leaked to a newspaper reporter who discussed the contents of the documents publicly. New rules governing what properly constitutes a "cabinet confidence", and in what circumstances cabinet confidences should not be treated as confidential, are urgently needed.

We recommend that these rules be developed by the Special Parliamentary Committee referred to in Recommendation 5 below.

4. Greater Openness of the Vetting Process

When passages from a document were deleted, the Committee had the benefit of being referred to a section of the Access to Information Act which indicated in general terms the reasons for the deletion. However, no information was conveyed to the Committee when an entire document was withheld.

We recommend that Counsel to the Committee be permitted to review all of the unexpurgated documents after having taken an oath of confidentiality. Counsel can then report to the Committee whether he or she believes that the policies relating to access to information have been correctly applied. In the absence of Counsel's advice, the Committee has no way of knowing whether to challenge the decisions made by government officials.

5. Further Examination Needed

The right of the Senate and the House of Commons to institute inquiries is fundamental to the Parliamentary Committee process. It is therefore imperative that the broad powers of parliamentary committees to send for persons, papers and records be recognized and respected. Parliament's right to initiate investigations should not be allowed to atrophy simply because the powers of parliamentary committees have seldom been fully exercised and consequently, are little understood.

We recommend that for reasons we have set out, the powers and the ability to discharge the mandate given to a parliamentary committee should be the subject of examination by a Special Joint Parliamentary Committee.

<1> 1 The conclusions and recommendations of this Report does not necessarily reflect the views of all Members of the Special Committee .

<2> 2 Minutes of the Proceedings of the Senate, May 4, 1995, at 930.

<3> 3 "Presentation of General Legal Counsel to the Standing Joint Committee for the Scrutiny of Regulations on the Powers of Parliamentary Committees" (Ottawa: House of Commons, 16 November, 1994) at 1; reproduced as "The Powers of Parliamentary Committees", Canadian Parliamentary Review, Spring 1995.

<4> 4 Special Senate committees, such as the Pearson Commitee, do not automatically enjoy the same broad powers of Senate standing committees. Pursuant to Rule 94 of the Rules of the Senate of Canada, July 1993, the Senate, when appointing a special commitee, indicates the powers to be exercised and the duties to be undertaken by the special committee. For a list of the powers given to the Pearson Committee, see Minutes of the Proceedings of the Senate, May 4th, 1995 at 929-30.

<5> 5 Section 18 of the Constitution Act, 1867 states:

The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

<6> 6 Section 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1, states:

The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise

(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1876, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and

(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.

<7> 7 Rule 91 states:

A standing committee shall be empowered to inquire into and report upon such matters as are referred to it from time to time by the Senate, and shall be authorized to send for persons, papers and records, whenever required, and to print from day to day such papers and evidence as may be ordered by it.

<8> 8 Standing Order 108.(1)(a) states:

Standing committees shall be severally empowered to examine and enquire into all such matters as may be referred to them by the House, to report from time to time and to print a brief appendix to any report, after the signature of the Chairman, containing such opinions or recommendations, dissenting from the report of supplementary to it, as may be proposed by committee members, and except when the House otherwise orders, to send for persons, papers and records, to sit while the House is sitting, to sit during periods when the House stands adjourned, to sit jointly with other standing committees, to print from day to day such papers and evidence as may be ordered by them, and to delegate to subcommittees all or any of their powers except the power to report directly to the House.

<9> 9 Supra, note 2 at 2.

<10> 10 House of Commons Debates, March 17, 1987, at 4265. Attached as an appendix to Ms. Davidson's Presentation to the Standing Joint Committee Scrutiny of Regulations on November 16, 1994, supra, note 2.

<11> 11 Charles Gordon (ed.), Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, (20th ed.) (London: Butterworths, 1991) at 746-747.

<12> 12 Joseph Maingot, Parliamentary Privilege in Canada (Toronto: Butterworths, 1982) at 163.

<13> 13 Arthur Beauchesne, Beauchesne's Parliamentary Rules & Forms, (Toronto: Carswell, 1989). Citation 848 reads:

1) Committees may send for any papers that are relevant to their Orders of Reference. Within this restriction, it appears that the power of the committee to send for papers is unlimited.

(2) The procedure for obtaining papers is for the committee to adopt a motion ordering the required person or organization to produce them. If this Order is not complied with, the committee may report the matter to the House, stating their difficulties in obtaining the requested documents. It is then for the house to decide what action is to be taken.

(3) It cannot, however, be said that this requirement is absolute either in the case of government departments or of public or private bodies, since there are no instances recorded in which obedience to an Order for papers has been insisted on.

It is not clear to what extent the Charter may have restricted the privileges, immunities and powers of the Houses of Parliament. In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) , [1993] 1 S.C.R. 319, the issue arose whether a general prohibition on the use of television cameras in the Nova Scotia House of Assembly was in contravention of s. 2(b) (freedom of the press) of the Charter. The Supreme Court of Canada held that the Charter does not apply to the members of a legislative assembly when they exercise their inherent privileges. Madam Justice McLachlin remarked:

In summary, it seems clear that, from an historical perspective, Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning. These privileges are part of the fundamental law of our land, and hence are constitutional. The courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege. (at 384)

In this case, the Court ruled that the House's right to exclude strangers was necessary for the proper functioning of the legislative assembly. Certain parliamentary powers, however, such as the power of a parliamentary committee to summon witnesses and for the Houses to take action to compel the witness to appear, may not pass the threshold test of ?necessity' and consequently, can be subject to Charter challenge.

<14> 14 Presentation by the House of Commons Standing Committee on Privileges and Elections to the House of Commons, attached as Appendix 3 to the Committee's First Report to the House, May 27, 1991.

<15> 15 R.S.C. 1985, c. A-1

<16> 16 Proceedings of the Special Senate Committee on the Pearson Airport Agreements, September 21, 1995, at 22:85:

Mr. Nelligan: ... Is it your view that this committee is limited to the material which would be given to an ordinary citizen under the Access to Information Act?

Mr. Thomson: No. It's my understanding that the - they are not limited to only the material provided under the Access to Information Act. However, the principles that are reflected in the Access to Information Act are in accordance with the practice that I talked about earlier that is followed.

<17> 17 Subsection 69(1) states:

This Act does not apply to confidences of the Queen's Privy Council for Canada, including, without restricting the generality of the foregoing,

(a) memoranda the purpose of which is to present proposals or recommendations to Council;

(b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;

(c) agenda of Council or records recording deliberations or decisions of Council;

(d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

(e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);

(f) draft legislation; and

(g) records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f).

<18> 18 Supra, note 15 at 22:7.

<19> 19 21.(1) The head of a government institution may refuse to disclose any record requested under this Act that contains

(a) advice or recommendations developed by or for a government institution or a minister of the Crown,

(b) an account of consultations or deliberations involving officers of employees of a government institution, a minister of the Crown or the staff of a minister of the Crown,

(c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of theGovernment of Canada and considerations relating thereto, or

(d) plans relating the management of personnel or the administration of a government institution that have not yet been put into operation,

if the record came into existence less than twenty years prior to the request.

<20> 20 Supra, note 15, at 22:8. Ms. Bloodworth commented further:

Now, section 21 ... provides for a discretionary ability to withhold not just advice provided directly to a minister but advice developed broadly within a government institution. it is however, discretionary. It is not a mandatory exemption and discretion has to be approached.

In this particular case, in view of the task of this committee, and in interests of providing as much information as possible, the principle that was followed, however, was that only advice provided to ministers would be protected, not advice that was provided throughout the department or departments involved.

<21> 21 Proceedings of the Special Senate Committee on the Pearson Airport Agreements, Thursday, September 21, 1995 at 22:10.

<22> 22 The relevant section of the Access to Information Act states:

Third Party Information

20.(1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains

(a) trade secrets of a third party;

(b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;

(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or

(d) information the disclosure of which could be expected to interfere with contractual or other negotiations of a third party.

<23> 23 Privy Council Office, December, 1990.

<24> 24 Ibid., at 3.

<25> 25 Supra, note 10; reproduced in Beauchesne, supra, note 12, citation 863.

<26> 26 Parliamentary Privilege in Canada, (Toronto: Butterworths, 1982) at 163.

<27> 27 Prior to the commencement of the hearings, it was anticipated that some witnesses might refuse to answer questions. At the Organization Meeting of June 8, 1995, the Chair and Deputy Chair adopted the following motion:

... witnesses will be denied any request to testify in camera. If after taking the Oath a witness refuses to testify or to answer questions, his or her reasons will be accepted. However, if such should occur, the committee may question their reasons for refusal.

<28> 28 Harry Swain, Deputy Minister, Industry Canada, Proceedings of the Special Senate Committee on Pearson

Airport Agreements, Thursday, July 27, 1995 at 7:4-5.

<29> 29 Supra, note 15, at 22:12.

<30> 30 Both Ms. Bloodworth and Mr. Thomson in their testimony before the Committee addressed this issue: supra, note 15, at 22:74; 22:87, 90.

Ms Bloodworth: Mr. Nelligan, unlike those other people, is part of this committee, not part of the government as I've described it. Particularly when it comes to cabinet confidences, the very people that you are protecting cabinet confidences on behalf of ministers and former ministers from, are from the other partisan parts of our system, including legislative branches. So Mr. Nelligan is in a very different position from Mr. Nixon or Scott & Aylen in the sense that he is counsel to this committee, not part of the government. ...

Mr. Nelligan: All right. Assuming [that committees have] broad legal authority, would it not be necessary for them to have at least some assistance from witnesses and from departmental documents to determine whether they should exercise that strong power, and isn't there some way that the department and witnesses can then help them to come to valid public decisions as to whether that information should be put on the public record? ...

All I'm asking for is some help as to how we can resolve these impasses without having to have it all exposed in public. Is there not some way that someone could review these matters to determine whether it's of sufficient importance and advise the committee as to whether they should insist on their legal powers? ...

Mr. Thomson: ... Mr. Nelligan, you are raising I think a valid point, which is when we see this claim being made, we like to have some sense of why it's being made in the particular case. And obviously my concern is that that not be done in a way that ends up just disclosing the information itself. In this particular case, I think what we've been doing is to try to deal with it on an individual basis when a particular case comes up where you have concerns or questions.

I think you raise a good question, and I think there might be some value in us exploring it. We're talking about how this might be dealt with in future cases, exploring whether it's possible to be a little clearer about why the particular claim is being made, so one at least has a sense of the rationale for it without disclosing the information itself, and whether that might be done in a way that goes beyond simply the section of the act itself. We've not done that ...

<31> 31 See Erskine May, supra, note 10:

A witness is, however, bound to answer all questions which the committee sees fit to put, and cannot be excused, for example, ... because the matter was a privileged communication such as that between a solicitor and a client ...

<32> 32 Supra, note 15 at 22:7.

<33> 33 Proceedings of the Special Senate Committee of the Senate on the Pearson Airport Agreements, Thursday, September 28, 1995 at 27:5-6.

<34> 34 Greg Weston, "Tories ignored warnings of airport costs", The Ottawa Citizen, September 25, 1993 at A1 and Greg Weston, "Privatizing Pearson: The anatomy of a deal", The Ottawa Citizen, September 26, 1993 at A1.

<35> 35 "Pearson inquiry whitewash spreads beyond deleting details", The Ottawa Citizen, September 25, 1995 at A2.

<36> 36 See Greg Weston, "Dear senators: Below please find a road map to lost Pearson papers", The Ottawa Citizen, October 12, 1995 at A2.

<37> 37 Rule 133 states:

When the royal prerogative is concerned in any account or paper, an address shall be presented to the Governor General praying that the same may be laid before the Senate.

<38> 38 Privy Council Office, 1968, Article 9 under the heading "Cabinet Records" at 27.

<39> 39 It is interesting to note that lawyers appearing before the Somali inquiry have complained about heavy-handed attempts by Justice officials to restrict access to potential witnesses: "Somalia inquiry lawyers reject Justice demands", The Globe and Mail, November 1, 1995 at A11. A letter from the Justice Department to all parties with standing before the inquiry essentially asserted that notice must be given to Justice officials before current or former civil servants or military personnel are contacted. Concern was expressed by Mr. Justice Gilles Letourneau, the Federal Court judge chairing the inquiry, that the letter would intimidate potential witnesses from coming forward.

<40> 40 Annual Report 1993-1994, Information Commissioner of Canada, (Ottawa: Minister of Supply and Services Canada, 1994) at 30.

<41> 41 (Ottawa: House of Commons, 1986). The Information Commissioner of Canada in his 1993-1994 Annual Report, ibid, at 32 makes a similar recommendation.


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