Journals of the Senate
49 Elizabeth II, A.D. 2000, Canada
Journals of the Senate
2nd Session, 36th Parliament
Issue 49 - Appendix "B"
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
FIFTH REPORT
1. Pursuant to its order of reference dated October 13, 1999 from the Senate, your Committee is pleased to report as follows.2. On September 7, 1999, Senator Noel Kinsella gave notice of a question of privilege in the Senate relating to the harassment or intimidation of a witness before a Senate committee. This question of privilege was discussed in the Senate on September 8, 1999. The Speaker reserved his decision on the matter, and ruled on September 9, 1999 that a prima facie case of privilege existed. Accordingly, Senator Kinsella moved that the matter be referred to your Committee for investigation and report.
3. Subsequently, the first session of the 36th Parliament was prorogued on September 18, 1999. On October 13, 1999, Senator Kinsella renewed his question of privilege, and the Speaker again found it to be a prima facie case. Senator Kinsella then moved the following motion, which was adopted by the Senate:
That the question of privilege in respect of a witness who appeared before the Standing Senate Committee on Agriculture and Forestry be referred to the Standing Committee on Privileges, Standing Rules and Orders, when that Committee is established, for investigation and report.
4. In connection with this question of privilege, your Committee heard from the following witnesses: Senator Kinsella and Dr. Shiv Chopra, on December 7, 1999; Dr. Margaret S. Haydon, Dr. Rajinder M. Sharma, and Dr. Gerard Lambert, on February 22, 2000; Dr. Sidarshan S. Malik, Dr. Cris Bastudde, and Dr. Arnost Vilim, on February 23, 2000; and David A. Dodge and George D. Hunter, on February 29, 2000. Your Committee appreciates the candour and assistance provided by all of these witnesses.
5. Senator Kinsella explained to the Senate and to your Committee that this issue came to his attention on August 15, 1999, when he co-chaired a Senator's Round Table on citizen participation in civic affairs. At that time, he was approached by Dr. Shiv Chopra, a scientist with Health Canada, who alleged that he had received a five-day suspension without pay because of his appearance before the Standing Senate Committee on Agriculture and Forestry. After obtaining further details, Senator Kinsella immediately wrote to the Deputy Minister of Health Canada, and notified Senator Sharon Carstairs, the then Deputy Leader of the Government in the Senate. At the first opportunity - on September 7, 1999 - he raised the issue in the Senate.
6. The background and context underlying this case are relatively complex. Briefly, the relevant facts are as follows.
7. Dr. Chopra is employed as a drug evaluator by the Bureau of Veterinary Drugs of Health Canada. He was involved in the assessment of applications for approval for recombinant Bovine Growth Hormone (rBST). This drug has been the source of a great deal of controversy, and in June 1998 the Standing Senate Committee on Agriculture and Forestry began a study of the rBST and its effect on the human and animal health safety aspects. As part of this study, five scientists from Health Canada, including Dr. Chopra, appeared before the Committee on October 22, 1998. Several of the scientists had expressed concerns about possible repercussions of their appearances, and the Committee sought and received assurances from the Minister and other officials at Health Canada that they would be protected and would not suffer any adverse consequences. The Committee tabled its interim report on rBST on March 11, 1999, but Dr. Chopra appeared before it on two other occasions: on April 26, 1999, he was part of the "Human Safety Panel," and on May 3, 1999, he appeared with three other scientists and the president of his union, the Professional Institute of the Public Service of Canada (PIPSC).
8. Meanwhile, on March 26, 1999, Dr. Chopra participated in a conference on employment equity organized by the Department of Canadian Heritage. Subsequently, in August 1999, a five-day suspension without pay was imposed on Dr. Chopra for statements he made at this conference. This suspension is the subject of a grievance that has been filed with the Public Service Staff Relations Board by Dr. Chopra and his union. It was Dr. Chopra's evidence and that of other Health Canada scientists that this suspension was in fact retaliation for his appearances before the Standing Senate Committee on Agriculture and Forestry. On the other hand, Mr. Dodge, the Deputy Minister of the Department, testified that Dr. Chopra's remarks at this public conference, in which he called another employee of the Department a liar, were the cause of the disciplinary action.
9. The Health Canada scientists who appeared before your Committee provided a great deal of documentary evidence regarding the employment and working environment in the Bureau of Veterinary Drugs. Your Committee's mandate from the Senate, and the focus of our investigation, however, is restricted to issues relating to parliamentary privilege.
10. The classic definition of parliamentary privilege is found in Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament:
Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively ... and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law. (22nd Edition, p. 65)
11. The protection accorded by privilege extends to those persons who participate in parliamentary proceedings, in particular as witnesses. In 1993, the House of Commons Standing Committee on House Management re-affirmed the principles of parliamentary privilege and the extension of privilege to witnesses. Its report stated:
The protection of witnesses is a fundamental aspect of the privilege that extends to parliamentary proceedings and those persons who participate in them. It is well established in the Parliament of Canada, as in the British Parliament, that witnesses before committees share the same privileges of freedom of speech as do Members ... The protection of witnesses extends to threats made against them or intimidation with respect to their presentations before any parliamentary committees. (Sixty-fifth Report, February 18, 1993)
12. As the 22nd Edition of Erskine May makes clear, interference with or obstruction of witnesses has serious implications:
Any conduct calculated to deter prospective witnesses from giving evidence before either House or a committee is a contempt ... On the same principle, molestation of or threats against those who have previously given evidence before either House or a committee will be treated by the House as a contempt. (pp. 126-127)
13. The Senate, and all Senators, view with great seriousness any allegations of possible intimidation or harassment of a witness or potential witness before a Senate committee. In order for the Senate to discharge its functions and duties properly, it must be able to call and hear from witnesses without their being threatened or fearing any repercussions. Any interference with a person who has given evidence before a Senate committee, or who is planning to, is an interference with the Senate itself, and cannot be tolerated.
14. It is the duty of all Senators to uphold the privileges of the Senate. Senator Kinsella in immediately pursuing this matter once it was drawn to his attention, and raising it in the Senate at the earliest opportunity, is to be commended, and has set an example for all Senators.
15. In the case of Dr. Chopra, your Committee is confronted with a basic difficulty. There is no direct evidence that the five-day suspension without pay imposed on Dr. Chopra was related to his appearances before the Senate committee. What your Committee must do is to look at the time frame, the ostensible reasons, and all of the surrounding and relevant circumstances in an attempt to arrive at a conclusion as to the true reason for Dr. Chopra's discipline. Was the punishment allegedly imposed for comments made at the Canadian Heritage conference merely an excuse for getting back at him for embarrassing the Department by appearing before the Senate Committee and giving testimony that the Department did not like? Did the suspension result from other factors, unrelated to Dr. Chopra's Senate testimony? Your Committee's task is complicated by the poisoned environment that exists in the Bureau of Veterinary Drugs, and the complicated context in which this situation arose. Your Committee is also mindful that there are on-going legal proceedings in the Federal Court, as well as a series of pending grievances. While determined to do everything necessary to uphold the privileges of the Senate and of Senators, it is incumbent upon us to proceed cautiously.
16. After a careful review of all of the evidence, your Committee is unable to conclude that a contempt of Parliament has occurred. Your Committee is not satisfied to the degree that it must be in order to make such a finding. The standard of proof required in order to determine that a contempt of Parliament has occurred has not been met, but this is not to say that there is no evidence. Members of your Committee consider that the allegations have not been adequately proven.
17. The evidence clearly establishes that the working environment in the Bureau of Veterinary Drugs at Health Canada is highly unsatisfactory. There is a great deal of suspicion and lack of trust, and, therefore, allegations of this nature cannot be entirely discounted. Your Committee finds this situation deplorable, and urges the Minister of Health and the Deputy Minister to take steps to remedy it, as a priority and a matter of urgency.
18. Your Committee wishes to emphasize that allegations of interference or tampering with witnesses or potential witnesses before parliamentary committees are extremely serious, and will be investigated diligently and exhaustively. While all Senators are committed to protecting witnesses before Senate committees, there must, however, be clear evidence before a finding of contempt of the Senate can be made.
Respectfully submitted,
JACK AUSTIN
Chair