Proceedings of the Standing Senate Committee on
Privileges, Standing Rules and Orders
Issue 5 - Evidence
OTTAWA, Wednesday, December 15, 1999
The Standing Committee on Privileges, Standing Rules and Orders met this day at 12:10 p.m. to consider its agenda.
Senator Jack Austin, P.C., (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, there is one item that we must deal with before addressing the questions of privilege that have been referred to us by Senators Andreychuk and Bacon.
Our colleague Senator Pépin has advised me that she must withdraw as the third member of the steering committee because she has a commitment to attend another caucus. I have, therefore, asked Senator Corbin to become the third member of the steering committee. I mentioned to Senator Corbin, as I mentioned to Senator Pépin, that I had in mind having as the third member of the steering committee someone who had served in the House of Commons and was familiar with the rules there.
Senator Prud'homme: I served.
The Chairman: There is a list, of course.
Senator Prud'homme: I am way down the list.
The Chairman: Senator Corbin has agreed to serve, and I would request the consent of honourable senators for that.
Hon. Senators: Agreed.
The Chairman: We have invited Senator Bacon to address her question of privilege.
Thank you very much, Senator Bacon, for coming here today. I invite you to proceed with your statement on the question of privilege.
[Translation]
Senator Bacon: Mr. Chairman, I thought I might review the events leading up to this question of privilege.
On Wednesday November 17, 1999, the Transport and Communications Committee met for the first time in camera to consider the first draft of the report on the restructuring of Canada's airline industry. Researchers and senators were authorized to sit in on the proceedings. Once the meeting adjourned, the clerk collected all of the copies of the report.
On Monday November 22, the clerk sent copies of the second draft of the report through the Senate internal mail to senators, who confirmed that they planned to attend the meeting scheduled for the following day, that is Tuesday November 23. I have here with me the list of these senators, which I will share with you later. The words "Draft and confidential" appeared on each separate page of the report circulated on November 22.
On Tuesday November 23, 1999 at 9:35 a.m., the Transport and Communications Committee met in camera to discuss the second draft of the report. Researchers were permitted to sit in on the proceedings. They were also given a copy of the report and at the end of the meeting, senators and researchers were allowed to keep the copy in their possession. I also have the list of the individuals who received this version of the report.
Still on Tuesday November 23, at 5:10 p.m., Jeanne Pratt, a researcher in Senator Kirby's office, called me -- I was surprised that she called me in person because in the past, she had always communicated with my research officer -- and informed me that a Canadian Press reporter apparently had obtained a copy of the second draft of the report. At the same time, she asked me if I wanted to talk to this reporter, to which I responded no.
Several minutes later, Senator Kirby phoned me to confirm what his researcher had told me. He also asked me to speak to the reporter in question and again, I refused.
On November 24, Quebec City's Le Soleil printed an article by Gord MacIntosh of Canadian Press detailing some of the facts contained in the second draft of the report. That same day, The Toronto Star also printed an article detailing parts of the second draft of the report, a version which, as I said earlier, had been sent to senators and handed out to the research officer.
You can understand then why that same day, November 24, I raised a question of privilege in the Senate and asked that the matter be referred to your committee. If my memory serves me correctly, I also asked that the incident in question be investigated.
I have here the list of senators who received a copy of the report the day before the meeting. Some senators received their copy at 4 p.m., and others, at 5 p.m. I also have the list of the people, including staff members, who received a copy of the same version of the report at the November 23 meeting.
This is the second time that an incident like this has occurred.
[English]
If we do not investigate a dossier like that, a situation like this one will happen again. I am sorry that I must mention that. However, twice in the same year this has happened in the Senate; I think we must act on that. I appreciate that we do not have a police staff to investigate thoroughly, but there must be some kind of investigation that this committee can make, even if it just involves questioning people. It is up to you to decide. It is not for me to tell you what to do.
There was a lot of money involved, as you are all aware, in the in the transportation dossier. The day it was published from our second draft report was the day Canadian was to send a letter to the shareholders to tell them how to vote. I did not feel very at ease with that. I am asking you, Mr. Chairman, to investigate this dossier if at all possible.
The Chairman: May I ask you a few questions, Senator Bacon? First, do you believe that the appearance of the report in the press was done deliberately to influence the debates and conclusions of your committee?
Senator Bacon: I will go as far as that, yes.
The Chairman: Do you have any evidence -- I do not want you to use a name in public -- whatever as to who might have been responsible for the breach of privilege?
Senator Bacon: I would not want to make any accusation here. I think an investigation would reveal who did this. It is not for me to accuse anyone; it is for your committee to determine who did it.
However, I found it strange to be telephoned and told that Mr. MacIntosh knew about that, that he had a copy of it. I never spoke to Mr. MacIntosh.
The Chairman: The process of investigation, if the committee were to decide upon it, would require us to call all persons who had possession of the document and put to them the question of whether they were responsible. Do you have any reason to believe that someone would answer in the affirmative?
Senator Bacon: No. I will be honest with you, I do not think anyone would admit to doing it. However, if we do not do that, Mr. Chairman, it will happen again.
The Chairman: You were right in saying that this committee must deliberate on that very question. We have, in the discussion of Senator Andreychuk's question of privilege, asked ourselves what would be fruitful, and what would be fruitless, in terms of investigation. As you know, in Senator Andreychuk's case, she is proposing that we raise the profile with respect to our practices regarding confidentiality and privilege. She has not asked us to investigate, but to make it clear what the rules are and to create sanctions if the rules, as we stipulate them, are broken. I do not know whether you have seen a copy of our draft.
Senator Bacon: I have, and I do not think that it is enough. I do not agree. It is good; however, if we do not investigate further, if we do not question people, if we just try to increase our level of confidence, it will not be enough. This will happen again, Mr. Chairman.
The Chairman: I would like to invite you to stay for our discussion today. There will be placed before us a memorandum -- I believe it was circulated moments before the committee. If you have not received a copy of that memorandum, you should get a copy.
It is a comparison of practices under rule 43(1) in our House of Commons and similar rules in the British and Australian parliamentary systems. I would like you to join in and assist us in that discussion.
[Translation]
Senator Grimard: I realize that in accordance with the Rules of the Senate of Canada, you were required to raise a question of privilege as soon as possible, and you proceeded to do so. I have to wonder, though, why the Transport and Communications Committee did not attempt to trace the source of the leak? In short, you are asking us to play detective.
My first question is this: Should the Transport and Communications not try to identify the guilty party itself rather than ask our committee to undertake this task?
Senator Bacon: This is a matter for the Standing Committee on Privileges, Standing Rules and Orders which can probe further than the Transport Committee. The latter can share with you all of the facts in its possession. I have reviewed the sequence of events. I have the list of those senators and staff members who received copies of the report. I have attempted to find the guilty party, but I am not a detective. Normally, the people who make accusations are the focus of such accusations themselves. Some people have pointed the finger at others. Let me relate to you my experiences as a parliamentarian in Quebec. At every caucus meeting, a member would rise and ask - I will spare you his exact words -- who was responsible for turning over a copy of a report to the press, when in fact he was the guilty part.
A committee member has pointed the finger at someone else. I have my suspicions, but I have refrained from making any accusations and will continue to resist the urge to do so.
Senator Grimard: The Chair asked you to attend this meeting so that you could learn of a report prepared by Mr. Robertson. You will note that in Canada, England and Australia, the rules are such that when a committee charges that a leak has occurred, it must first conduct its own internal investigations to uncover the source of the leak and, if it cannot find the guilty party, the chair should not accept prima facie evidence in order to refer the entire matter to the Privileges Committee.
I would like to know your views on the subject. In short, you are asking the Privileges, Standing Rules and Orders Committee to investigate your committee's activities and the circumstances surrounding this leak. Do you consider that to be a normal request?
Senator Bacon: I do not see anything unusual, after reviewing the events leading up to my question of privilege, in coming before the Privileges, Standing Rules and Orders Committee ans asking it to probe further into this matter. It is not up to the Transport and Communications Committee to investigate the incident in question.
Senator Grimard: Even though the committee has not made much of an effort to identify the guilty party?
Senator Bacon: We did try to uncover the source of the leak.
[English]
The Chairman: As chairman, I must intervene. We have a reference from the Senate. Therefore, the question of privilege has been referred to us and that is our responsibility at this time. Whether that is a process that is to be continued relates to your second question, Senator Grimard. I have invited Senator Bacon to participate in that part of our discussion.
[Translation]
Senator Corbin: You said that this was the second time an incident of this nature had occurred. Are you referring to the Senate in general or to your committee?
Senator Bacon: To the Senate in general. Our committee has not experienced anything like this before. In the past, we have held in camera meetings. This is the first time that a leak has occurred. That is why I said that there was a considerable amount of money at stake, considering the survival of Canadian International, Air Canada and Onex. Canadian International was poised to send out a letter to its shareholders. The fact that the press disclosed some figures could have changed the course of events.
Senator Corbin: You mentioned the name of a particular reporter, a Mr. Gord McIntosh from Canadian Press. Is that correct?
Senator Bacon: Yes.
Senator Corbin: Are you acquainted with this person?
Senator Bacon: No.
Senator Corbin: Then you cannot tell us whether he faithfully attended every committee meeting?
Senator Bacon: He was not authorized to attend the meetings.
Senator Corbin: Not the in camera ones, but what about the meetings that were open to the public?
Senator Bacon: I cannot say whether he attended any meetings, since I do not know the man.
Senator Corbin: Having been a reporter myself some time ago, I know that leaks can occur, even though documents may not necessarily change hands. Merely by chatting casually with committee members, listening to idle conversation or reviewing documents, reporters often draw conclusions which later prove to be erroneous. Often, however, by researching their facts, they can publish information which in time proves to be true, even though they may not have set eyes on confidential papers.
Senator Bacon: The following is noted in The Toronto Star on November 24 in reference to the report, and I quote:
[English]
The Senate committee, close to completing its report, is expected to propose raising the single-investor limit in Air Canada stock to 33.3 per cent from 10 per cent and the foreign ownership limit to 49 per cent from 25, sources said.
[Translation]
That is very specific.
Senator Corbin: The matter was never publicly discussed in any way?
Senator Bacon: No.
Senator Corbin: I am playing devil's advocate.
Senator Bacon: November 24 was not the only time this happened. There was another incident on December 2. I raised my question of privilege on November 24 and even so, on December 2, the print media reported that according to its sources, the Senate report was going to focus on the issue of regional transportation. It reported that the Senate Transport Committee did not object to Air Canada keeping its regional carriers and had no objections either to allowing Air Canada to establish a new discount carrier in Hamilton. It is clear that someone had seen the report.
[English]
The Chairman: Senator Bacon, regarding the news stories, is your report actually quoted from or is it only the substance to which they refer? The language you have given us at the moment is expected to say that, but in the case of Senator Andreychuk the exact words that were contained in the draft report of the Standing Senate Committee on Aboriginal Peoples were actually quoted in the news story. Could you look at that question when you have a moment during the course of this hearing?
Senator Bacon: I may have an answer now. On the second report, the 33.3 per cent was discussed. We changed it in the third report to 20 per cent. They have the numbers that we had at the time.
The Chairman: Did they actually quote any passages from the report?
Senator Bacon: I wish I had all the documents I need here.
The Chairman: Do you think they had the document in hand or an oral summary from someone who may have participated in the in camera discussion?
Senator Di Nino: Senator Bacon, would you please correct me if I am wrong? Earlier, when you were talking about Mr. McIntosh, did you not say that you thought he had a copy of the report or that he said he had a copy of the report?
Senator Bacon: No. I said I received a phone call from Jeanne Pratt, a researcher for Senator Kirby, who told me that Mr. McIntosh from the Canadian Press had in his hands a copy of the second draft report.
Senator Di Nino: Someone, in effect, suggested that a copy of the report was actually in the reporter's hands?
Senator Bacon: Yes.
Senator Di Nino: We do not know that for a fact -- that is, unless we ask Senator Kirby's assistant about it.
Senator Bacon: I saw it in the papers the next day.
Senator Di Nino: My question is along the same lines as the chairman. Did someone discuss this report?
Senator Bacon: No. She said he had a copy.
Senator Di Nino: That is an important item to put in the minutes.
Was an attempt made by you or by someone on your staff to ask each person on that limited list of people who received this report whether they had, inadvertently or otherwise, made the report available or made comments about the report to someone?
Senator Bacon: I asked the clerk. The draft report was hand-delivered to the offices of the senators who had confirmed their presence at the November 23 meeting. I know what was sent out at four o'clock and at five o'clock and to whom it was sent.
Senator Di Nino: Did anyone ask them about this issue, if they knew how the contents of this report came to be in the hands of a reporter? Was that question asked of everyone who received the report?
Senator Bacon: No.
Senator Grafstein: I thought this was referred to us for consideration, but the words from the Speaker pro tempore refer the matter to us for investigation. Those are two entirely different terms of reference. Can we clarify what investigation means, as opposed an examination of the situation? We have precedent but we do not have clear rules. I start with that question. My colleague says that the words in French also mean to make an investigation, so the French and English are parallel. We are, at this moment, to investigate what precise elements of the situation? I do not know because there are no rules. There are guidelines from various authorities.
I will start with one proposition. The iron rule of the Senate is that each committee is the master of its own rules and procedures. That which applies in committee "A" may not necessarily apply in committee "B", both as to the extent and the nature of a problem. The facts may be the same in committee "A" as they are in committee "B" but the ramifications may be different in the committees because of the report or the timing or other issues.
Each committee is the master of its own rules because it is the best source for determining significance or insignificance. A leak in one committee may mean nothing. A leak in another committee may be supra-substantial. I am not commenting, Senator Bacon, on your issue. I am just making some general comments.
Mr. Chairman, we must decide first if that is a rule we wish to adopt or whether we wish to perform an ad hoc inquiry into one or both questions. That is the preliminary question.
We may come to the conclusion, although I would not like to see this, that this committee should become a special star chamber to look at this. I see Senator Grimard nodding. He alluded to the same question. Is it not better that the committee itself pursue these matters and then, having raised a prima facie question, raise the question of penalties or whatever in the Senate or, alternatively, here. That is the proposition.
I remember, Mr. Chairman, my own experience when I came to Ottawa in 1966. Senator Bacon, Senator Kroft and our chairman may also remember this, but I want to share this experience with all members. Certainly, Senator Prud'homme will remember this period. In 1965, a bunch of very aggressive ministers were competing for public attention. They each had a superb staff of bright young men and women, including some of the people in this room.
Senator Prud'homme: You mean including you.
Senator Grafstein: Most definitely including myself, inter alia. I do not want to put myself in a special class, Senator Prud'homme.
Senator Corbin: You are on a slippery slope.
Senator Grafstein: I will climb back up and you will join me at the top of the slope. This is just raw political experience. There was one chief of staff, or chef de cabinet, who was called "Leaky". I will not mention his last name. To this day, whenever we see him, 30 years later, we call him Leaky. The reason for the name was that he was a specialist in leaking stories to make himself or his minister look good.
Some of us who were involved less artfully than Leaky thought the best way to stop the problem was to identify him, to call him by that nickname, and to make sure that whenever any story came forward thereafter it came from Leaky. Many stories did not, but, at the time, it slowed him down.
Senator Prud'homme: Sometimes it was Bryce MacKasey, but that is another story.
Senator Grafstein: That is another piece of history. I notice my colleague Senator Prud'homme is smiling because he understands my reference. Mr. Chairman, there are leaks that are important and leaks that are not important.
Let us come back to the issue raised by my colleague Senator Bacon. I also wish to speak to the initiative that Senator Grimard referenced, which is in this material. I think the first thing we must determine is --
The Chairman: I do not want you to go on to the discussion of what is in the draft report.
Senator Grafstein: No, I am just talking about the key threshold, the prima facie issue. If in fact we are seized, what must we be seized with first before we satisfy ourselves that we should go further? I will wrap up in a minute.
We must come to a conclusion based on clear and overwhelming evidence that there is substantial damage to the work of the committee at hand. Unless we can be satisfied on that frontal issue, that prima facie condition precedent, other things fade. We are discussing how to come to grips with a very important issue.
The Chairman: I would like to take up one point and that is your reference to the reference. It is interesting. With respect to the question of privilege raised by Senator Andreychuk, the Speaker put this question on September 14, 1999:
That the question of privilege concerning the unauthorized release of working drafts of a report of the Standing Senate Committee on Aboriginal Peoples be referred to the Standing Committee on Privileges, Standing Rules and Orders --
-- when that committee is established.
Therefore, our reference is literally that, a reference, "It is over to you."
On November 24, 1999, the question of privilege was raised by Senator Bacon. The Speaker pro tempore said:
I recall Senator Molgat being asked to rule on a similar question in September. I therefore accept the question of privilege raised by Senator Bacon. I propose that the question be referred to the Standing Committee on Privileges, Standing Rules and Orders for investigation.
I am not sure that the difference creates any distinction because, as Senator Grafstein said, this committee is in charge of its own process. In each case, we have had a reference, whether we consider it or investigate it. I do not believe we should pursue the point any further. It is before us and we are dealing with both questions.
I now want to turn to Senator Beaudoin. Perhaps we can conclude on the general issues. Senator Prud'homme also has a very small point. Now that we are in political history, this expression which I, too, use is intended to signify a very small contribution, a very short-term contribution. Is that correct? I refer to the number of words and not to the substance, of course.
Senator Beaudoin: Before asking a question of Senator Bacon, I should like to complete the inquiry made by my colleague Senator Grafstein. If I understand the procedure, the mere fact that a question of privilege is referred to this committee means that there is a prima facie case that there is a question of privilege. If that is so, that would mean that some kind of an inquiry has already taken place -- not here, but in the committee concerned about the privilege.
We are asked by the Senate to look into the matter because there is already a prima facie case. A prima facie case means that, having regard to what we know, there is already prima facie evidence that there is a breach of privilege. I raise the question because I am not too sure that we are on the same wavelength. That being said, I understand that this is a procedure of our committee.
[Translation]
Did you discuss this matter (I would imagine in camera) with other committee members once you realized that a leak had occurred? Or, did you simply decide, because the Senate was assembled, to raise a question of privilege in the Senate and to leave it to the Speaker of the Senate to decide whether there in fact was a prima facie case of privilege and to refer the matter to our committee? Or did you in fact conduct a preliminary investigation?
Senator Bacon: You read my thoughts. As soon as I noticed that some excerpts from our report has been published in the newspapers, I inquired as to the what steps I should take, in light of the importance of this matter. I opted to raise a question of privilege, believing that by bringing this matter to the Senate's attention, perhaps the committee members or the individual responsible for the leak would reflect upon what had happened. I felt the matter could be referred to the Privileges Committee for further review, thereby allowing the Transport Committee to continue its work in the meantime. Since then, with the exception of the December 2 leak which was a minor one, there have been no further major leaks with numbers quoted.
Senator Beaudoin: The Chair of a Senate committee has a certain amount of authority.
Senator Bacon: I checked with the clerk beforehand to find out who had received a copy of the report and when. That is why I have here the names of those who received their copy either at 4 p.m. or at 5 p.m. If people argue that they did not receive a copy or that they did not keep one, they had more than enough time to make copies the previous day. Because that is when they received their copies, not at the meeting as such, but rather the previous day. At the actual meeting, copies were distributed to those who did not have a copy and to the staff members accompanying them.
[English]
Senator Beaudoin: Mr. Chairman, since those events have taken place, and since the decision of the Speaker pro tempore is that there is a prima facie case, it has been referred to us and we are investigating it. It is a bit of a mystery to me as to whether we are in a position to make a real inquiry or whether we are here just to rule on the applicable remedies.
The Chairman: I am grateful to you, Senator Beaudoin, for raising the point so neatly. There are two phases. A question of privilege -- and, as you say, the Speaker pro tempore has established that on a prima facie basis. We may come to the conclusion after our examination or investigation, and these are the theoretical options, that the burden has shifted and there is no prima facie case. That is one possibility. We may confirm that there has been a breach of privilege, moving it from the category of prima facie to a finding of fact.
Senator Beaudoin: Substantial.
The Chairman: Yes. However, the question of investigation is a separate question. It is a process question rather than a substantive question.
Senator Beaudoin: Are we equipped to handle that?
The Chairman: To finish the point raised by Senator Grafstein, our clerk has pointed out to me the wording in rule 44(1), and I think it is useful to read it:
When a prima facie case of privilege has been established, the Senator who raised the matter may move a motion calling upon the Senate either to take action on the matter or to refer the matter to the Standing Committee on Privileges, Standing Rules and Orders for investigation and report.
It leaves it entirely to us as a committee to decide what the process of investigation should be and, of course, what should be in our report.
I would like to hear from Senator Prud'homme, and Senator Joyal, if he wants to participate. However, I should like to close this discussion very quickly and move to the consideration touched on by many senators, that consideration being: What should we be doing with questions of privilege in general? What is our capacity to act fruitfully and not out of frustration, and what happens in other jurisdictions when they have dealt with this same issue? We can then come back to the issue of whether an investigation in these circumstances would be useful. By that, I mean an inquiry of senators, of Senate staff, of contract workers, and of anyone else who had access. Would that produce in any way a result? We can debate that at another time other than today.
Senator Prud'homme: As I said, in my view, from my 37 years of experience, there are two kinds of breach of privilege. There will always be leaks. Some I would call annoying leaks. For instance, the Foreign Affairs Committee is now in the middle or towards the end of a very important study. The report will most likely be leaked. I call that extremely annoying for the members who work on it and who give their time. It is frustrating. That is the general situation that I think that we will combat as long as the Senate or any other human institution exists.
The second one, which I take very seriously, is leaks, as I said before, of a fraudulent nature. These I take very seriously. Of all questions that have been raised in my six years in the Senate, I have not seen one that I would put in that category except the one raised by Senator Bacon today. That is why I take that one seriously.
I take the other one seriously, but I find it annoying. In your reflections on this, since this will be my only contribution, you may think there is some sense in what I have just said. The last one could have led to fraud. If people have manipulated the stock market or that kind of thing, I would think it would need to be taken seriously.
Senator Joyal: Mr. Chairman, I have no doubt that the instances that we have been discussing here at this committee, the one that Senator Andreychuk brought forward and the one that Senator Bacon raised, are breaches of privilege. There is no question about that.
The only major issues with which we are wrestling is how we can act upon them and what recourses are at our disposal. If we do an investigation, do we start by summoning all the members of the committee, one by one, and asking them, under oath, whether they leaked the report? Do we then summon all support staff who have been involved in typing, printing, et cetera, to eliminate witnesses seriatim?
What are the other means at our disposal to try to find the guilty person? When we undertake an inquiry, we must define the limit and scope of it.
Senator Andreychuk has not requested an inquiry. I think she is right, because no one has a clear idea of how to conduct the investigation. We now have a second occurrence in a very short period of time. I ask myself what our capacity is to intervene unless the person who leaked the report admits it or unless the person who received the document says from whom he or she received it.
When I spoke in the chamber on the question of privilege raised by Senator Bacon, I was interested to know what they do in Westminster on such matters. It seems that they intervene quite forcefully, with the serious punishment of suspension for ten days, loss of pay, and the requirement for a public apology.
Have they rules that apply to such matters? Are they shrewder investigators than we are? I expect that our research people and advisors could look into that and advise us whether we are lacking tools to intervene or whether we can simply establish that a breach of privilege has occurred and go no further because our rules do not provide for further intervention.
The Chairman: Senator Joyal's intervention is an excellent introduction to the next phase of our discussion. The answers about comparative practice are available to us and I would like to lead the committee into that discussion almost immediately.
Senator Corbin: I wish to correct an impression left by Senator Beaudoin. He pretends -- "prétend, en français" -- that there has already been an inquiry, otherwise the Speaker could not refer this sort of matter to the committee.
Senator Beaudoin: I did not go that far.
Senator Corbin: I am sorry, I noted your words. I may be giving a false interpretation to them, but the test that the Speaker applies has nothing to do with a prior inquiry with respect to guilt or otherwise. He simply states that, for a question of privilege to be recognized by the Chair, you must meet certain categories, which are clearly enunciated in rule 43(1).
I am now leading into the second phase of this study, the third test, under rule 43(1)(c), which states that the matter:
(c) be raised to seek a genuine remedy, which is in the Senate's power to provide, and for which no other parliamentary process is reasonably available...
I dispute Senator Bacon's contention that it is this committee that must investigate in all cases. I think the Transport Committee or another committee, as master of its rules, has the power to find out who commits these breaches, and also has the power to report those names back to the Senate. Then the Senate can make decisions based on rules recommended by this committee, a similar practice to that in the British House of Commons.
I think that is what it is all about. Subclause (c) is very clear. We do not have to undertake investigations. We are here to seek a genuine remedy. What can we do? The damage is done, in any case.
The Chairman: You are entitled to reply, Senator Beaudoin, but I do not want to go far down this path because it takes us away from the focus that would be useful; that is, to look at comparative practice. When we have gone around that circle, we can come back to this point.
However, as your name was raised, Senator Beaudoin, you are entitled to reply.
Senator Beaudoin: I only said that the mere fact that the Speaker or the Speaker pro tempore refers a case to this committee means that he or she is convinced that there is a prima facie case of privilege. That is all I said; no more and no less. If I am wrong, I would like to know why.
The Chairman: The record will show who said what.
Senator Corbin: That is right.
The Chairman: If there is anything to correct, we will do it at a subsequent meeting.
Senator Corbin: I accept your word, but that is not what I thought you said earlier. That is fine.
The Chairman: I should like to ask rhetorically whether rule 43.1(c) is part of the process under which the Speaker makes a prima facie ruling. I leave that for your consideration. It may be that we have moved into rule 44, and this section may not apply.
I should now like to refer again to our discussion of two weeks ago when we had before us the recommendations of Senator Andreychuk, those recommendations being, in essence, related to what responsibility the Senate and this committee has to make it clear to everyone, once and for all, that these matters are serious.
There was a sense in that discussion that perhaps we had allowed practice to slip, because we had not been faced with this problem for some period of time. Therefore, Senator Andreychuk's position was that we should ensure that we have done everything we can do to prevent the breach of privilege. There were questions with regard to whether we have given appropriate notice to make people aware. The reference was not so much to the senators or even permanent Senate staff as to contract staff; people who come and go. They do research work, participate, and then move on.
It was discussed whether we should have a documentary process focused on protection of the document; the type of process used in the Privy Council Office in which documents are numbered, with their distribution very carefully controlled. Each document has a distinguishing characteristic to show to whom each document belongs.
Senator Kroft raised the matter of whether simply giving this notice was sufficient to deal with the problem of the Senate, including Senate committees, not allowing itself to enter into an exercise of frustration. He suggested that we should not proceed along paths that lead us to a zero result.
A discussion took place as to what has evolved under a similar rule in our House of Commons through the rulings of the Speaker in the House of Commons. That led us to ask what goes on in the U.K. or in Australia. They have had specific inquiries with specific information available to us.
The question was raised of whether there was any comparative practice in the United States, and it is pointed out to us in this memorandum that in the United States there are no formal in camera proceedings within Congress.
Everything is on the record. Of course, nothing is recorded when discussions take place in senators' offices, and there is a practice there to consider. However, that is now ahead of us.
I ask colleagues to take a look at the December 7, 1999 document entitled "Options for the Handling of Questions of Privilege Relating to Leaked Committee Reports." I think we can go through it relatively quickly. Does everyone have a copy?
James R. Robertson prepared this, at our request. It is a public document.
In the first paragraph, there is a reference to Congress having avoided the problem by having all committee meetings held in public. It says that the Reform Party advocated a similar approach for the Canadian House of Commons. The report then it goes into the practice of in camera meetings.
Under the section "Canadian House of Commons" the report states:
In October 1975, a question of privilege was raised following the publication and broadcast in the media of a confidential draft report of the Special Joint Committee on Immigration Policy...In his ruling, Speaker James Jerome made the point that the House guards the confidentiality of draft reports and that the publication of such a report would raise the strongest suggestion that some act has taken place which offends the privileges of the House.
The author says that the question of privilege raised fails to be sufficiently specific. This is a ruling that, in many ways, I think, comes out of the Speaker's creativity and expediency in the situation. The paper goes on to report that the Speaker said:
I refer to the absence from the motion of any allegation of misconduct which is specifically complained of in terms of a breach of the privileges of the House. Has there been an action by the publisher of the newspaper involved, or by the radio or television station, which constitutes a breach? The motion does not say. Has there been an action by a member of the House of Commons or by a member of the other place? The motion does not suggest it. Has there been an action by a staff member, perhaps, here or in the other place? Again, the motion does not suggest it. In other words, it seems to me that what the motion seeks is not an investigation of a prima facie question of privilege but, rather, an investigation to determine whether a prima facie question of privilege exists, or whether a substantive motion would be in order.
On that point, the House of Commons practice begins to diverge from that of the Senate. I think that I am saying this correctly, and if not, the clerk or our researcher should advise. Up to that point, the practice that we still have was the practice of the House of Commons. Now, the Speaker is beginning to deal with the question of frustration.
Senator Grafstein mentioned earlier that, in that period, there were many, many brown envelopes flying -- be they physical brown envelopes or verbal brown envelopes; it was a major issue of the day.
The report goes on to say:
The Speaker also pointed to what he saw as a second difficulty -- namely, that if allowed, the motion would lead to one committee of the House investigating the work or operations of another committee -- in this case a joint committee -- which would be irregular. He went on to note, however, that the House was not without a remedy: a substantive motion for an investigation could be put forward, or, alternatively, the joint committee itself could undertake the investigation.
In 1977, Speaker Jerome was again confronted by a question of privilege relating to the publication of in camera proceedings of a parliamentary committee, in this case the Sub-committee on Penitentiaries. In his ruling, he noted that the motion that had been proposed contained, on its face, all of the elements of privilege and was supported by clear precedent in the British House of Commons. "It contains elements of interference with the work of Members in their committee, because it relates to the publication prematurely of a subcommittee document in preparation for a committee report." He continued, however:
There is no doubt that in the United Kingdom, the matter would be dealt with as privilege. I point out to honourable Members that it would be dealt with in the United Kingdom as privilege because of a specific resolution of that House which says that the premature publication of confidential committee reports before they have been Tabled in the House will be treated as privilege. Our House has never taken that step. I think there are probably a number of good reasons why we have never done that, but we may want to and I think we ought to, consider carefully some of the difficulties which face us here.
He also deals in the report with the issue of freedom of the press, which Senator Fraser raised during the debate on the Senator Andreychuk motion.
I might say that, in my personal view, the publication by the media of a confidential report is a breach of privilege. However, it has been political practice for a very long time not to engage in a verbal struggle over freedom of the press with the media. I think Senator Fraser put the point as neatly as it could have been put.
Referring again to the document, the Speaker went on to say:
It concerns me, however, that the motion appears to attack the press for publishing a confidential document but does not attack ourselves as Members of the House for our own attitude in respect of our own confidential documents.
He then inquires into the conduct of the House and poses the very interesting question of how you embark on an investigation of the privilege caused by the press without inquiring into the conduct of members at the same time. He says that it should be done in parallel, if it is to be done at all.
The report states:
The Speaker noted that the British practice would be for a committee to report back that publication had taken place, that it was premature and that it, therefore, offended the privileges of the House -- something, the Speaker suggested, that was already known. He noted that the usual practice was for the British House to debate the matter and find that no penalty should be extracted, and wondered whether that was the House wanted to go in. At the Speaker's suggestion, the general matter of the premature disclosure of in camera proceedings and the consequences thereof for Canadian procedure and practice was referred to the Special Committee on Rights and Immunities of Members. That Committee, however, did not report back to the House on this matter before it ceased to exist at prorogation.
That raises the matter that Senator Prud'homme raises, which is the degree of harm and whether we should deal with that question as a matter of our procedure.
Senator Grafstein: I should like to come back to the British parliamentary practice. Again, I do not wish to opine upon Senator Bacon's issue because I share that view on the face of it. It seems like a very serious breach because it goes to the question of markets and things like that. On the face of it, it does not pass the smell test, but that it is not a problem. However, I wish to set that aside for a movement and focus back on this report.
The British model commends itself to me for a couple of reasons. The committee itself should pursue the matter, make a recommendation, answer the threshold test -- has there been substantial interference of the work of the committee -- and then decide whether to pursue it to determine who the culprit is. It is step one, step two.
That report is then referred to another committee. That allows there to be a separation between the fact finders, in effect the jury and another independent body, to take a look at this and say, "Yes, that is what the committee says. Having in mind the overall privileges of the Senate, do we agree with that?" That affords a process here.
It is important that once we pursue wrongdoing we set up a fair process. Again, I am back to the point that I tried to make at the beginning. The best group to assess the ramifications, how the committee works and so on, is the committee itself at the time.
The Chairman: Being the Rules Committee, we can recommend a change in the rules if we wish. We could recommend that, when a question of privilege is raised, the first stage of investigation should be within the committee itself. We can set out a procedure for investigation by the chairman of that particular committee. We would then come to the question of exacting of penalties, which would be the business of this committee. That is the British practice.
I see senators are ready to discuss this question. Speaker Parent raised some other interesting issues, which are addressed in the memo. Perhaps we should pause at this point and have some discussion.
Senator Di Nino: The committee may very well attempt to deal with the issue. I do not disagree with Senator Grafstein, except to the point that, without certain resources and additional powers, the committee may only be able to do a preliminary analysis and review of the situation. We may not be able to deal with the issue at all. I think that is where the mid-step is.
If the committee were able to do its investigation -- maybe not as in-depth as another committee may -- and discovered that there was a culprit, then the question of the degree of damage may enter the picture. The committee may decide to deal with it on its own, if it were something that did not offend the Senate as a whole. It may have been inadvertent.
We are opening a whole can of worms. If we are going to be looking at a process, the committee should do a quick investigation. The committee should ask every member whether they inadvertently leaked anything or if they know why or how this thing was leaked. It could then be referred to somewhere else. Otherwise, we would have to create a process for the committee to follow, a process for which resources and expertise may be needed. We may discover, after some time, that the committee was unable to complete the task and we would have to refer it to a committee and start the whole thing again.
We should give the committee no more authority other than to conduct a preliminary analysis. If they then felt that the matter should be referred, then it should be.
The Chairman: I should like for the sake of the discussion to move us through a few lines on page 4 of this memo, lines that I believe are quite critical.
In the first paragraph, there is a reference to a December 1997 ruling by Speaker Parent on a question of privilege. He said:
There is a further principle related to premature disclosure of committee documents which Speaker Jerome used as the basis for a ruling given on October 22, 1975. No potential breach of in camera proceedings can be taken up without a specific allegation of misconduct directed against particular individuals.
It is an interesting pre-condition that Speaker Parent found somewhere in Speaker Jerome's dicta.
In the next paragraph, Speaker Parent says:
I refer hon. members to 877(2) of Beauchesne's, 6th Edition, which clearly states that a complaint concerning premature publication of a committee report is incomplete without reference to the specific source responsible for the disclosure of the report.
In the House of Commons, then, neither Senator Andreychuk's nor Senator Bacon's question of privilege would be referred.
Senator Grafstein: Until the committee comes to a conclusion.
The Chairman: No, without a charge against a specific person.
Senator Grafstein: That does not prevent the committee itself, Mr. Chairman, deciding that it is an individual, or two.
The Chairman: Let me be clear about the process. In the House of Commons, when an alleged breach of privilege has taken place, the committee itself endeavours to find the evidence to permit a charge to be made against some specific person. The privilege can then be brought to the Speaker, following which the Speaker sends the investigation of that charge to their rules committee.
Senator DeWare: After disclosure has been made.
The Chairman: Yes, part of raising a question of privilege in the House of Commons is that a charge against a person must be made before any reference to the committee.
Senator Rossiter: However, the charge is by the committee?
The Chairman: The charge is by the chairman of the committee where the breach is alleged to have taken place. The rules committee is asked to do two things in the House of Commons. The first is to find, on whatever basis of evidence is satisfactory to them, that a breach of privilege has taken place, and then apply a sanction. That sanction is then recommended in their report to the Commons, which decides to deal with that report as it wishes. That is the Commons procedures as I understand it.
A question before us, colleagues, is whether we wish to adopt the Commons procedure. The underlying reason for the Commons procedure is that their inquiries were fruitless, rendering their rules committee the subject of ridicule because it were being sent matters on which no action could be taken. Therefore, they decided to step back from all of that and not even employ the processes of Parliament until this charge was made.
This was done -- and again I emphasize -- by Speaker's rulings, based on their rules, which, as I understand, are identical to our rules 43 and 44. They have departed by creating precedent. We are following the older and more literal interpretation of the rules.
I wish to draw that to your attention clearly and starkly because it is something that I believe requires our deliberate consideration.
There is a reference to other rulings and the practice of the Commons, and also our practice, that a member must be taken at his or her word. A denial by a member cannot be investigated. I want you to appreciate that that is our rule.
There are then a number of other comments on page 5, but I do not think they carry forward the substance of what we have to consider. There is a reference that, if a court of law requests a ban on materials, why cannot the House of Commons, which is the High Court of Parliament.
Turning to the British Parliament, the difference is that journalists are part of the system of sanctions in the U.K. Parliament. A breach by the press of the Commons privilege is a very serious matter. In camera debates by members of the House of Commons and House of Lords is a higher level of public policy than the right of the press to report everything that comes to them.
That is the substantial difference. I have will not take you through all of the rules. The House of Lords has not adopted any special rules or procedures and has not, apparently, experienced any questions of privilege.
I will conclude by referring you to the very specific mechanism of the Australian Parliament for dealing with this question. The committee in which the breach is alleged to have occurred:
...shall seek to discover the source of the disclosure, including by the chair of the committee writing to all members and staff asking them if they can explain the disclosure.
Further:
(b) the committee concerned should come to a conclusion as to whether the disclosure had a tendency substantially to interfere with the work of the committee or of the Senate, or actually caused substantial interference;
Then it reports to the senator and whatever sanction is recommended may or may not take place.
Senator DeWare: Both the British house and the Australian house follow the same procedure?
The Chairman: Yes, essentially. The Australians probably followed the British practice.
Senator Grafstein: Is that the same for the House of Lords and the senior house in Australia?
The Chairman: As I was saying, there are no rules or procedures in the House of Lords with respect to this matter.
Senator Grafstein: What about the Senate in Australia?
The Chairman: The practice of the Australian Senate is set out clearly on page 8.
With respect to the Australian House of Representatives, Speakers since 1990 have required the committees concerned to consider the unauthorized disclosure of reports in the first instance.
No rule in either the British or the Australian practice interferes with the right of a member to raise a question of privilege in the chamber.
Senator Kroft led us into this further investigation because of concern that our present practice will lead to numbers of references to this committee, which will be a cul-de-sac.
Senator Kroft, have you any comments on what you have seen and read?
Senator Kroft: Yes. With the brief opportunity I have had to look at this, I find that the Australian practice goes a considerable way toward answering my concern, which was that the Speaker, under our present practice, has no ability to limit. Everything flows through to this committee without much of a filter. I became concerned about the number of issues we might have and our inability to deal with them effectively.
I very much like the practices outlined here of the Australian Parliament. If you draw a parallel with a preliminary hearing process, the committee that is dealing with the subject matter at the moment will be the most sensitive to the facts, the personalities, and the issues. The more time that elapses and the further that a committee is from the actual events, the more difficult it is for that committee to be sensitive to the situation. Senator Bacon's case is an example. I believe that that committee, knowing the players and the essential facts, will be much better able to read the issues.
Senator Rossiter raised the issue of whether only a committee could bring such a matter forward. Must everything come forward through a committee process?
The Chairman: That is not the practice in any of the parliaments.
Colleagues, it is now 1:30 and the Senate is sitting. I solicit your consideration of these issues. We have had a very good discussion. When next we meet, which probably will be on Wednesday, February 9 at 12 noon, we will take up the question of whether this committee will respond to Senator Bacon's request for an investigation.
The committee adjourned.