Journals of the Senate
49 Elizabeth II, A.D. 2000, Canada
Journals of the Senate
2nd Session, 36th Parliament
Issue 49 - Appendix "A"
Thursday, April 13, 2000
2:00 p.m.
The Honourable Gildas L. Molgat, Speaker
THURSDAY, April 13, 2000
The Standing Committee on Privileges, Standing Rules and Orders has the honour to present its
FOURTH REPORT
1. Pursuant to its orders of reference from the Senate of October 13, 1999, and November 24, 1999, your Committee is pleased to report as follows on the questions of privilege raised by the Honourable Senators A. Raynell Andreychuk and Lise Bacon, and on related issues.2. On September 14, 1999, Senator Andreychuk gave written notice pursuant to Rule 43 and subsequently raised a question of privilege in the Senate. It related to a newspaper story that had appeared in the National Post on Saturday, September 11, 1999 entitled "Senators want special court for aboriginals - Scrap Indian Act, report recommends." The article related to a draft report that was being considered by the Standing Senate Committee on Aboriginal Peoples.
3. Following interventions by Senators Charlie Watt, Anne C. Cools, Jack Austin, and Joan Fraser, the Speaker ruled that a prima facie case of privilege existed. Accordingly, Senator Andreychuk moved a motion that the unauthorized release of working drafts of the report be referred to the Standing Senate Committee on Privileges, Standing Rules and Orders. This motion was agreed to by the Senate.
4. Before your Committee could deal with this question of privilege, however, the first session of the 36th Parliament was prorogued on September 18, 1999. At the beginning of the second session, on October 13, 1999, Senator Andreychuk raised this matter again, and, after a finding that a prima facie case existed, she moved the following motion, which was adopted by the Senate:
"That the question of privilege concerning the unauthorized release of working drafts of a report of the Standing Committee on Aboriginal Peoples be referred to the Standing Committee on Privileges, Standing Rules and Orders when that Committee is established."
5. On November 24, 1999, Senator Bacon gave notice and subsequently rose on a question of privilege regarding news reports that had been published that morning about a draft report on the restructuring of Canada's airline industry that was being considered by the Standing Senate Committee on Transport and Communications. She referred to two articles - one in Le Soleil (Quebec City) and the other in The Toronto Star. Various other Senators spoke in support of Senator Bacon, including Senators J. Michael Forrestall, Serge Joyal, Dan Hays, Joan Fraser, and Anne C. Cools. The Speaker pro tempore of the Senate, referring to the precedent of Senator Andreychuk, found that a prima facie had been established. Accordingly, Senator Bacon moved the following motion, which was adopted by the Senate:
"That the question of privilege concerning the leak of the second draft of the report of the Standing Senate Committee on Transport and Communications on the reorganization of Canada's air industry in Le Soleil and The Toronto Star of November 24, 1999, be referred to the Standing Committee on Privileges, Standing Rules and Orders."
6. Your Committee met to consider the question of privilege raised by Senator Andreychuk on Tuesday, November 23, 1999, and Tuesday, November 30, 1999, and the question of privilege raised by Senator Bacon on Wednesday, December 15, 1999. Your Committee subsequently considered both questions of privilege on Wednesday, February 16, 2000, and Tuesday, March 21, 2000.
7. The news report in the National Post on September 11, 1999 referred to "excerpts of the committee's recommendations obtained by Southam News," and quoted a number of recommendations that had been included in one of the drafts of the report. As the chair of the Standing Senate Committee on Aboriginal Peoples said in the Senate on September 14, 1999, "The description given by the National Post cannot help but infer that the report was leaked."
8. In the case raised by Senator Bacon, she explained, both in the Senate and before your Committee, that the Standing Senate Committee on Transport and Communications received an order of reference from the Senate on October 14, 1999 to consider the restructuring of Canada's airline industry. This order of reference was precipitated by the competing proposals from Onex Corporation and Air Canada to acquire control of and merge Canadian Airlines. The Committee was required to submit its report to the Senate before December 15, 1999.
9. After hearing from 57 witnesses, the Committee began consideration of drafts of its report about the middle of November 1999. The draft reports were marked "Draft" and "Confidential," and were considered at in camera meetings. The first draft was distributed at the meeting at which it was considered, and copies were collected at the end of the meeting. The second draft was distributed the day before the meeting to those Senators who had indicated that they would be in attendance; at the meeting, copies were also provided to the assistants of Senators present. Copies of the draft report were not retrieved at the end of the meeting. Later that day, Senator Bacon was advised by a Senator on the Committee that a Canadian Press journalist had a copy of the second draft of the report. She declined to speak to the journalist. The next day - November 24, 1999 - the newspaper articles appeared in Le Soleil and The Toronto Star. While there do not appear to have been actual quotes from the draft report, Senator Bacon believes that information that was contained in the newspaper articles could only have come from a copy of the second draft of the report.
10. The premature and unauthorized disclosure of committee reports before they have been tabled in the Senate constitutes a breach of privilege and a contempt of the Senate. The Sixth Edition of Beauchesne's makes this clear in citation 877(1):
"877.(1) No act done at any committee should be divulged before it has been reported to the House. Upon this principle the House of Commons of the United Kingdom, on April 21, 1937, resolved "That the evidence taken by any select committee of this House and the documents presented to such committee which have not been reported to the House, ought not to be published by any member of such committee or by any other person." The publication of proceedings of committees conducted with closed doors or of reports of committees before they are available to Members will, however, constitute a breach of privilege."
11. In addition to the pre-eminent right of the chamber to have reports tabled and made available first to its members prior to their being released to the general public, your Committee also notes that premature and unauthorized disclosure of committees reports can interfere with and impede the work of the committee. The violation of the confidentiality of in camera discussions undermines the confidence with which Senators can discuss things freely, and affects their ability to carry out the work on behalf of the Senate.
12. Senator Andreychuk argued, both in the Senate and before your Committee that the issue of confidentiality is central to free and open debate and is the basis for working and achieving the kind of consensus that is the hallmark of good committee reports. As she told the Senate:
"It was disconcerting to see recommendations that may or may not be appropriate, which may or may not be chosen by the full committee, being publicized in the newspaper. My ability to feel secure that my comments in committee hearings will stay in the committee has been prejudiced. My options in deciding what recommendations are appropriate and inappropriate are prejudiced."
13. In the same debate, Senator Austin made the point that the unauthorized release of the report puts Senators who are members of the Standing Committee on Aboriginal Peoples and the Senate as a whole in an unfavourable position:
"What happens now is that, regardless of our views as to what should be in the report, it will not be the report as leaked to the media. We are compromised. If the media have created expectations that certain recommendations will be made and we do not make them, there will be speculation as to why we did not make them."
14. The same argument was made by Senator Bacon. She noted that the leak adversely affected the work then underway of the Standing Senate Committee on Transport and Communications. As she told the Senate on November 24, 1999:
"Although the information given in the media today is based on a draft report that has not been finalized, it may well colour the perception the public will have of our final report. As I have said, our report is not finished. There are still a number of points to be discussed. Unfortunately, the leak, and the reactions to it, might hinder serene and informed reflection by the committee members."
15. The comments and concerns of Senators Andreychuk and Bacon, as well as other Senators, echo a finding by the Committee on Privileges of the Australian Senate in its 74th Report entitled Possible Unauthorized Disclosure of Parliamentary Committee Proceedings, which was tabled in December 1998. In its report, the Committee referred to the integrity of committee proceedings and the relationship between committee members which must exist in order for a committee to function constructively and productively. In the Committee's view, the release of draft reports during their preparation, particularly at an early stage of committee deliberations has one purpose alone: to influence the outcome of deliberations, thereby impairing the integrity of committee proceedings. It also noted that unauthorized disclosure of internal working documents can destroy the relationship of trust which is essential to productive committee deliberations, even if these documents, on their face, are harmless or routine.
16. Your Committee has determined, on the basis of the facts presented and after a consideration of the authorities, that in both of these cases draft committee reports were released prematurely and without authority. In the case of the Standing Senate Committee on Aboriginal Affairs, the draft report on aboriginal governance was leaked, and in the case of the Standing Senate Committee on Transport and Communications the draft report on the restructuring of the airline industry was leaked. Both Committees were considering confidential draft reports, at in camera meetings, and the reports had not been presented to the Senate. This clearly constitutes breaches of the parliamentary privileges of the Senate and of Senators, and contempts of the Senate have been thereby committed.
17. After due consideration and at the request of Senator Andreychuk, your Committee has decided not to conduct an investigation or inquiry into the source of the leak, or to assess culpability with respect to the Standing Senate Committee on Aboriginal Affairs. The damage has been done, and the objective is to avoid a repetition in the future. This incident should be taken as a warning and a reminder of the seriousness with which Senators and Senate staff should view confidentiality.
18. Senator Andreychuk has advised your Committee that her main concern is in raising the awareness of Senators and staff of the need for and requirements of confidentiality. She suggests that all Senators be advised, in writing, of the issue of confidentiality; that upon their appointment new Senators be fully briefed and informed of the issue of confidentiality; that the training of Senate staff and staff assigned to the Senate include an explanation of the implications of confidentiality; that persons retained by Senate committees have confidentiality explained to them and included in their contracts; and that persons who are hired or contracted by individual Senators be appraised of the need for confidentiality and that this be included in the terms of their employment or contract. The issue of confidentiality arises not just with draft committee reports, but also with other confidential documents and proceedings of committees.
19. Your Committee fully agrees that there needs to be enhanced awareness of confidentiality, among Senators and among all persons who work for or in the Senate. Measures should be taken to ensure that everyone is carefully briefed and educated about what confidentiality means, including the implications of discussions at in camera meetings and documents or evidence presented at such meetings.
20. Your Committee has reviewed the employment contracts and contracts of service that are used in the Senate. One of the General Terms and Conditions in the Contract for the Provision of Consulting Services, for instance, is the following:
"Any information of a character confidential to the affairs of the Senate, its members or its employees to which the Contractor or any employee or agents of the Contractor become privy as a result of work to be performed under this contract shall be treated as confidential during and after the performance of the services."
21. Similarly, article 5.2 of the Senate's Conflict of Interest Code, with which all employees and contractors must comply, provides: "No person governed by this Code shall communicate to someone not entitled thereto information that has been acquired in the course of performing that person's duties to the Senate or to a senator that is not available to members of the public."
22. Your Committee believes that confidentiality as a term of employment should be emphasized as a stand-alone policy, apart from the Conflict of Interest Code. Your Committee would also suggest that wording be added to all contracts of employment and service to indicate that the integrity of the Senate's proceedings is paramount, and that any breach of confidentiality will be considered to be a breach of privilege and subject to such proceedings as the Senate may determine.
23. Your Committee has great confidence in the integrity and dedication of the staff of the Senate, of Senators and of Senate committees, including interpreters and the staff from the Library of Parliament. Persons who have worked in the Senate for some time appreciate its needs and requirements, and the importance of confidentiality. It is important, however, that new staff, or temporary and term staff, often hired under contract, be sensitized to these conditions and requirements. They need to appreciate the onerous responsibility which parliamentary privilege imposes on them.
24. The question of privilege raised by Senator Bacon raises other serious issues. First, the draft report of the Standing Senate Committee on Transport and Communications involved publicly-traded companies that were in the midst of complex corporate and securities transactions. The leak of the Committee's draft report could have had serious repercussions and implications, and is deplored.
25. The difficulty in which your Committee finds itself is to determine how to undertake an investigation in such circumstances. Your Committee has reviewed carefully the practices and procedures of other legislative bodies for dealing with leaked committee reports. In particular, your Committee has considered the procedures in the Canadian House of Commons, the British House of Commons, and the Australian Senate and House of Representatives. In the case of leaked committee reports, these legislative bodies provide that, as a first step, the committee concerned should investigate the leak to seek to determine who was responsible and to assess the seriousness of it.
26. Your Committee believes that the following procedure should be adopted by the Senate for dealing with unauthorized disclosure of confidential committee reports and other documents or proceedings, and should be printed as an appendix to the Rules of the Senate:
(a) If a leak of a confidential committee report or other document or proceeding occurs, the committee concerned should first examine the circumstances surrounding it. The committee would be expected to report the alleged breach to the Senate and to advise the chamber that it was commencing an inquiry into the matter.
(b) While the committee would be required to undertake an investigation of the circumstances surrounding the alleged leak, the means, nature, and extent would rest with the committee. As part of the inquiry, it is likely that the committee members, their staff, and committee staff could be interviewed. The committee would be engaged in a fact-finding exercise - to determine, if it can, the source of the leak. The committee should also address the issue of the seriousness and implications - actual or potential - of the leak. The committee would be expected to undertake this inquiry in a timely manner.
(c) The committee investigation of the leak would not prevent any individual Senator raising a question of privilege in the Senate relating to the matter. As a general matter, however, and in the absence of extraordinary circumstances, it would be expected that the substance of the question of privilege would not be dealt with by the Senate until the committee had completed its investigation. Thus, if the Speaker finds that a prima facie case exists, any consequent motion would be adjourned until the committee had tabled its report.
(d) Individual Senators would also be able to raise questions of privilege in relation to the leak upon the tabling of the committee report. In other words, while ordinarily a question of privilege is to be raised at the first opportunity, no Senator would be prejudiced by awaiting the results of the committee's investigation. Similarly, no action or inaction or decision taken by the committee in relation to the matter would be determinative in respect of the Speaker's responsibility under the Rules of the Senate to determine whether or not a prima facie exists.
(e) In the event that a committee decided not to investigate a leak of one of its reports or documents, any Senator could raise a question of privilege at the earliest opportunity after the determination by the committee not to proceed in the matter. Similarly, if a committee did not proceed in a timely way, any Senator would be entitled to raise a question of privilege relating to the leak.
(f) When the committee concerned tabled its report, the matter would ordinarily be referred to your Committee by the Senate if it discloses that a leak occurred and that it caused substantial damage to the operation of the committee or to the Senate as a whole.
27. Your Committee deplores all leaks of confidential or in camera materials and information. In the case of committee reports, there is a well-established principle that the chamber has the right to be first informed of the report. Nothing in this report is intended to depart from this privilege of the Senate. Nevertheless, there are some leaks that may be more serious than others - such as those which compromise national security or the security or confidence of witnesses; those which are designed to influence or interfere with the drafting of a committee report; or those which could be used to personal benefit. In order to give rise to sanctions, it will ordinarily be necessary for the committee whose report was leaked to find that the leak was both substantial and damaging. The committee must determine this as part of the fact-finding process.
28. It should be emphasized that, under the proposed procedure, the issues of parliamentary privilege and contempt will continue to be dealt with only by the Senate itself. The committee whose report has been leaked is merely engaged in a preliminary fact-finding process. If the Speaker finds that a prima facie case of privilege exists, it will remain the responsibility of the Senate to decide how to deal with it, generally by referring the matter to your Committee for detailed investigation and recommendations. Sanctions will continue to be imposed only by the full Senate, usually upon recommendation of your Committee.
29. While individual cases must be assessed on their own merits, your Committee reminds everyone that the Senate possesses a range of options in terms of sanctions for breach of privilege and contempt of Parliament. These include apologies, reprimands, censure, suspension, and imprisonment. Your Committee notes, in this regard, that the British House of Commons has recently suspended members for the unauthorized and premature release of committee reports. In appropriate cases, your Committee will consider recommending sanctions on Senators and others persons who breach the privileges of the Senate.
30. Your Committee believes that new measures and policies should be adopted by all Senate committees to preserve the confidentiality of draft reports and other confidential or in camera proceedings. In this regard, we suggest that serious consideration be given to the following measures:
(a) that draft reports and other confidential documents be individually numbered, with the number shown on each page;
(b) that each numbered report and other confidential document be assigned exclusively to an individual, and always given to that individual, and this should be carefully recorded;
(c) that if Senators are to be given draft reports or other confidential documents in advance of a meeting, or are to take such documents away after a meeting, they be required to sign for them. Certain documents, such as in camera transcripts, should only be able to be consulted in the committee clerk's office, with the chair's approval;
(d) that the names of all persons in the room at in camera meetings to discuss draft reports - including assistants, research staff, interpreters and stenographers - be recorded, preferably on the record; and
(e) that the chairs of committees ensure that all Senators and staff are cautioned and reminded of the nature of confidential and in camera proceedings and documents, the importance of protecting them, and the consequences of breaching such confidentiality.
31. By letter dated December 8, 1999, Senator Landon Pearson has raised various issues relating to in camera committee proceedings, which are very relevant to this issues covered by this report. In this regard, your Committee notes that the Sixth Edition of Beauchesne's states: "Committees should make clear decisions about the circulation of draft reports, the disposition of evidence and the publication of their Minutes." (citation 851, p. 237). Your Committee concurs: there are a variety of types of matters that are taken up at in camera meetings, and different considerations apply to different situations. Committees and their chairs are in the best position to decide how in camera proceedings and documents are to be treated, but they should be very clear about their nature and status. While we consider such issues best dealt with by individual committees, your Committee is prepared to re-visit this issue, and develop a basic set of rules for in camera proceedings if required or if requested.
32. Your Committee hopes that the unfortunate situations involving the reports of the Standing Senate Committees on Aboriginal Peoples and on Transport and Communications will act as reminders that confidentiality must not be taken lightly. Without trust and integrity, the Senate and its committees cannot function properly. The issue of confidentiality is a complex one, and must be addressed in a number of ways. Heightened awareness of the issue and contractual terms and undertakings are part of the solution to protect confidentiality. Other measures, including administrative ones, such as security arrangements for draft reports and in camera meetings, should also assist. Your Committee appreciates that some of the measures outlined above will lead to inconveniences. Nevertheless, the recent events highlighted by the questions of privilege of Senators Andreychuk and Bacon have led us to conclude that they are necessary to ensure the integrity of Senate committee proceedings, and to prevent further unauthorized leaks.
33. Your Committee wishes to re-emphasize the seriousness with which it views breaches of confidentiality. The premature and unauthorized disclosure of committee reports undermines and compromises the work of the Senate, its committees, and of Senators. If the Senate is to work as an institution, confidentiality must be respected.
Respectfully submitted,
JACK AUSTIN
Chair