The Special Senate Committee on the
Pearson Airport Agreements
Evidence
Ottawa, Wednesday, May 31, 1995
[English]
The Special Senate Committee on the Pearson Airport Agreements met this day at 8:00 a.m. to organize the activities of the committee.
Mr. Gary O'Brien, Clerk of the Committee: Honourable senators, I see a quorum.
As clerk of the committee, it is my duty to preside over the election of your chairman. I am ready to receive motions.
Senator Jessiman: I nominate Senator Finlay MacDonald.
Mr. O'Brien: It is moved by the Honourable Senator Jessiman that the Honourable Senator MacDonald do take the chair of this committee.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Mr. O'Brien: Carried.
I invite Senator MacDonald to take the chair.
Hon. Finlay MacDonald (Chairman) in the Chair.
The Chairman: Colleagues, I am delighted to report, as you can see, that the head of the Committees Branch, Dr. Gary O'Brien, will be the clerk of this committee. This is good news because why settle for anything but the best.
Senator Kirby: Mr. Chairman, how are committee clerks picked? This is not intended to be a negative reflection on Dr. O'Brien, but I am trying to understand the process that led to his appointment. There was no consultation with our side about who the committee clerk would be.
Senator MacDonald: No.
Senator Kirby: I am quite happy to have Dr. O'Brien as our clerk. That is not the issue. However, with respect to process, there has always been consultation between both sides as to who the committee clerk would be on any committee I have been on.
Senator MacDonald: In this particular case, it was not exactly a volunteer job.
Senator Kirby: I understand that. However, if this committee is to stay on the rails early on, it is useful and desirable to have some consultation before decisions are arbitrarily made.
The Chairman: We will deal with that, and a few other subjects, in a couple of minutes.
Senator Lynch-Staunton: Does the Clerk of the Senate generally designate clerks of committees?
Mr. O'Brien: Certainly, there was a meeting with the Clerk of the Senate.
Senator Lynch-Staunton: He determines what the resources are, and who is available.
Senator Kirby: I find it odd that there was no consultation with our side.
Senator Lynch-Staunton: I do not know whether there was any consultation with our side, either.
Senator Kirby: Senator MacDonald knows something that I did not know; perhaps that is a better way of putting it.
Senator MacDonald: Our next order of business is the election of a deputy chairman.
Senator Bryden: I nominate Senator Kirby.
The Chairman: Are there any further nominations? I move nominations cease. Is it agreed?
Hon. Senators: Agreed.
The Chairman: Ordinarily at an organizational meeting, there are a number of additional motions passed which I intend to defer for reasons which will become obvious. I refer to motions on such issues as the holding of meetings, the whole matter of a quorum to receive evidence pursuant to rule 90, the authority to commit funds and to certify accounts in accordance with the Financial Administration Act, the authority pay travelling expenses of witnesses, the printing of proceedings, and matters of that kind. The committee will return to those housekeeping matters at a subsequent time, because there are a number of things which must be dealt with first.
The first such item is the matter of the so-called steering committee. It is the custom, as you know, for the chairman, the deputy chairman and one other senator to comprise the steering committee. That third person is appointed by the chairman, which immediately gives the impression that the steering committee is dominated by the chairman. At times, that can give rise to criticism, and there is a lack of knowledge of what happens in the steering committee, particularly when the steering committee consists of only three members.
I have known Senator Kirby for 24 years. We have worked together harmoniously during that time, although we may not have been in total agreement about everything. However, we have had a good, understanding relationship. It is my intention, at the outset, to refrain from establishing a steering committee as it is traditionally understood, and the future matters of this committee will be decided by Senator Kirby and myself.
There certainly will be disagreements on some things, but unless these are serious disagreements, which I hope will not be the case, this arrangement should work. It should establish a civility and a fairness for all members of the committee. I confidently expect that this committee will be a businesslike committee, with no unnecessary wrangling, and without bringing discredit to the Senate in any way. That is very important.
Senator Kirby and I will meet on Monday. However, yesterday we did agree that the public hearings of this committee will likely not begin before July 1. The committee will work throughout the summer, but we should be able to make convenient travel arrangements so that we can get away on weekends, in other words allowing for long weekends.
I have looked at what is ahead of us. The burden of the work will not start for several weeks. In the meantime, we may call for an open meeting with respect to one witness from the Department of Justice, possibly the Deputy Minister or the head of the public law sector. That is yet to be determined. This witness will take us through the whole matter of rights and privileges of parliamentary committees, with respect to the calling of witnesses and the requesting of documents, et cetera.
A full understanding of the procedure will eliminate the necessity for questions from committee members with respect to these matters. As I remember, Senator Bryden and others had some procedural questions during debate on the inquiry. I sent to Senator Bryden the only information I had at that particular time on the subject.
This is indeed an interesting subject. Although such rights may not have been exercised for many years, the rights of parliamentary committees do exist. The committee will have an opportunity to question this witness, who will not be a witness in the normal sense of the word. This witness would not be sworn. Rather, he or she will come, upon invitation, to present a paper but also to answer all of the questions that committee members may have.
That is the only possible meeting that we would have before we get down to business, and before we determine the extent of the matter before us, with respect to the calling of witnesses, et cetera.
Those are my introductory remarks. Are there any questions?
Senator Bryden: It is an excellent suggestion that you and the Deputy Chair should work out the agenda and such other matters. I agree with you. As you indicated, there may be times when you are not able to agree on a particular procedure. However, this is not a very large committee. Is it possible that, in such circumstances, the whole committee could then act as a steering committee?
The Chairman: That has happened. When I was chairman of the Transport Committee, the whole committee acted as the steering committee.
Senator Kirby: The Standing Senate Committee on Banking, Trade and Commerce operates in that way, too, more often than not.
The Chairman: That is a good point. That procedure has been utilized in the past, and found to be effective. It does clear the air. Everyone knows exactly what the situation is.
Senator Kirby: In the Standing Senate Committee on Banking, Trade and Commerce, we have held two votes in which the Liberals and Tories did not split along party lines. There were some of each on both sides. There were two women on the committee, and they were on opposite sides also. We concluded that neither politics nor sex had any impact on our committee.
The Chairman: The Standing Senate Committee on Transport and Communications held meetings on the inquiry respecting the sale by CN of the short line between Halifax and Cape Breton. As we proceeded, I realized that Senator Buchanan was taking a position totally opposite from the majority of the committee. We could not seem to get him off this track. It was a very serious matter. I was criticized at that particular time because I quietly took him off the committee. That was the final solution under those circumstances.
A transportation expert, who was a particular favourite of Senator Buchanan's, had presented a paper in which he set out to prove that CN hat no right to sell anything, that it was enshrined in the BNA Act. The committee had already agreed that this was of such legal complexity that we were not capable of handling it. As well, there were already lawyers addressing the subject. However, Senator Buchanan kept coming back to this. After calling him out of order about 12 times, the only way to keep our sanity was to quietly remove him, without his knowledge, from the committee. That did not please him too much.
Are there any other questions?
Senator Bryden: I am looking forward to hearing from the witness from the Department of Justice. I hope he or she will have something they can leave with us, so that we will have some notes to look at.
However, I would be very surprised if that witness can solve all of our procedural issues. Unless I misunderstood the information I received from you, and taking into account the research that I have already done, we will be presented with many situations where, on the one hand they have done this, and on the other hand the precedents are the other.
With respect to the scheduling of meetings before we actually get down to work, we will probably need a meeting or two to work through the procedures that this committee will use. I will be very surprised if we manage to get a definitive direction from a lawyer, even from the Department of Justice.
There could be many decisions on which the committee could go one way or the other. We could swear witnesses or not. We could require anyone who appears before us, whether he be a privy counsellor or a plumber, to give the information that they have, and we could decide not to allow privilege to be claimed. That is also an option.
As a committee, we must make such decisions. The expert can give us in the broad picture, but we will require at least one meeting to discuss exactly how we will proceed.
The Chairman: We suggested having such a person appear before us at an open meeting so that his testimony and advice would be on the record. We could ask questions such as, "What happens if this or that is the case? What about third party? What about privy councillors? What about accountability of ministers? What about deputy ministers?" There are many examples, as you would know from your experience as a deputy minister and a lawyer.
That testimony and advice could then be codified and made available to future witnesses. It is to be hoped that, in turn, that would prevent a witness from being recalcitrant for reasons that the committee could not accept. In other words, we would have something to which we could point. However, it may be necessary to proceed in camera for a short period of time with regard to a witness who raises a point that may be somewhat obscure.
I have not talked to anyone at the Department of Justice. The Deputy Minister of Justice has already appeared before the Joint Committee on the Scrutiny of Regulations, and I think he is quite amenable to making himself or one of his officers available to give us some material. He has written on the subject, and there is already material available. However, it does not cover the waterfront.
Are there any other questions, or any other matters to be raised before the committee at this time?
Senator Jessiman: Will this person be able to tell us when we can and cannot sit in camera?
The Chairman: No. I do not like in camera sittings.
Senator Jessiman: I thought committees, as such, should be open. However, there may be certain exceptions to that general rule.
The Chairman: I mentioned in camera proceedings in the sense that there may be some instances where a person gives what appears to be valid reasons for proceeding in such a fashion, and those reasons may be enough to give the committee pause to consider whether, by proceeding otherwise, we may be prejudicing a third party, or something along those lines. I am not talking now about clear matters of national security, or anything of that kind. However, there may be other areas where the committee may need to say to a witness, "Very well, we will clear the room and have the meeting in camera, and you can tell us who the person is that you feel might be affected, and how they might be affected." After having heard such evidence in camera, we could then say, "He has a point," or, "No, it is not good enough. We must hear the witness." It is simply so that the person can make his reasons for recalcitrancy known to the committee, and we can judge it accordingly. Other than that, there would be no reason for in camera meetings, other than the usual matters involving reports, and so on.
Is there anything else? If not, I thank the committee for their cooperation in attending this morning, especially since we had difficulty finding a time to meet that would not conflict with the various other things that are happening today.
The committee adjourned.
Ottawa, Thursday, June 8, 1995
The Special Senate Committee on the Pearson Airport Agreements met this day at 9:30 a.m., to continue its organization of the activities of the committee.
Senator Finlay MacDonald (Chairman) in the Chair.
The Chairman: Honourable senators, I am sorry that Senator Kirby cannot be with us here today, but he is ably represented.
The report of your chairman and deputy chairman has been circulated to all of the members. I should like the committee's advice on how we will handle this report. You will recall that, at the last meeting, we did not set up a formal steering committee. However, in order to make the process completely fair and accurate, and to get started on the right foot, it was agreed that the chairman and the deputy chairman would recommend the procedures that we would follow.
Further, it was your recommendation, Senator Bryden, that should Senator Kirby and I fail to agree on some matter, it would be brought back to the full committee for determination. You have now had an opportunity to read the report.
Senator Kirby and I have had excellent meetings where we added some things and took out some other things, but we then agreed unanimously to this report.
Perhaps members of the committee would peruse the report and then ask any questions on it that they have. We could then deal with the report item by item, or simply receive a motion to adopt it in its entirety. If all members of the committee have not yet had an opportunity to read the report, we could wait a few minutes so that you can do so now. Alternatively, if anyone has a suggestion or a question on any of the items in the report, I would be happy to have those points raised now.
Senator Hervieux-Payette: I had not taken down the names of the people whom you discussed with Senator Kirby, but are they the same, namely Mr. Rosen, Mr. Stillborn and Mr. Nelligan? If they are the same people that you agreed upon, I have no problem, because the rest of the report concerns the calendar of meetings. You will work out a budget eventually, but today we will merely approve the concept that you will work out a budget and return with that later.
The Chairman: I will be introducing Mr. Nelligan to the committee in a few minutes, and I will also be reading the biographies of the three main players, namely the clerk of this committee and the two senior researchers, whom we are delighted to have. The researchers are very busy people. They are the two top men in the Library of Parliament research department. While they will not be available to us on a full-time basis until later in the month or after July 1, they are on board.
Senator Hervieux-Payette: I move the approval of the report, then, unless there are any questions.
Senator Jessiman: In the event that you are unable to agree concerning some matter in clause 3, I assume that you will also return to the whole committee. In other words, by adopting this report we are not preventing the matter from coming back before this committee to determine what the two of you cannot agree upon, including clause 3. Is that correct?
The Chairman: Yes, that is correct. The phrase "to call upon and to schedule witnesses" is included in case a witness, for some reason, for example an illness, cannot appear before the committee. We could then reschedule that witness, and so on. It gives us a bit of flexibility if the deputy chairman and the chairman together can deal with that type of thing without having to return to the committee for approval.
Senator Bryden: The possibility of one of you wishing to call a witness but the other not concurring in that desire is also something that would have to be addressed before the committee, but the scheduling of it would not.
Senator Jessiman: In implementing this report, if you think a matter can be passed unanimously, but in trying to implement it in some way, you are unable to agree -- because some of these things require your agreement -- you will then need to return here to the committee, and the committee will make that determination?
The Chairman: Yes.
Senator Bryden: That is agreed.
The Chairman: Are there any other questions with respect to the report?
[Translation]
Senator Prud'homme: Thank you , Mr. Chairman.
My question is as follows: How is it that we can already announce the staff and the name of the committee's legal adviser even before the Senate has approved the budget?
It seems to me that before going any further, we should wait until the Senate has approved or rejected this fairly substantial request, given the rather harsh restrictions that have been imposed on our own budgets. How can we even consider hiring...
[English]
That is, even before the Senate has accepted the budget that you will submit to them. I was under the impression that the meeting was called this morning to present the possibility of a budget, and to adopt it.
I am not a member of this committee, so I waited to speak last. Perhaps you will agree on the project. Questions should be asked about where the moneys for this budget will come from. You then must report to the Senate, where the matter could be debated. If the Senate accepts your request, you can go ahead with that budget. You must be prepared, though, to state who the lawyer and the staff will be.
In my experience, you can hardly make it a fait accompli -- that is, name the staff, and so on -- before you have been given the approval to do so. Here in the Senate, contrary to the House of Commons, the Senate must accept or reject the budget of the committee. I certainly intend to debate that in the Senate.
We just received bad news concerning our own offices. We were just told last week that we cannot hire supplementary staff this summer to replace those who go on vacation, which is creating a great disturbance. If we want supplementary staff for one week or for one month, we must then turn to the floating staff. But none of the floating staff is bilingual. That is quite annoying. There are not two classes of senator as far as I am concerned, and I said so yesterday.
Where will the money for this budget come from? This may not be the place to ask about that, but I will certainly do so in the Senate. We were told to cut our budgets. I went faithfully to the committee, even though I was not a member. They cut off 4.2 per cent from the budget. You will now have to ask Parliament for a supplementary budget. I am not sure if returning to Parliament to ask for a supplementary budget will be agreed upon. They will ask: What for? We will have to say, "To conduct a study."
The Chairman: It is normal practice for a steering committee of a Senate committee to present to its main committee its plans for the future and its recommendations with respect to the staff and other people that the committee will retain to assist it. The committee, of course, must first approve its own budget. The matter then goes to the Internal Economy Committee -- next Tuesday morning, as a matter of fact, and then to the Senate for full approval. If for some reason the Senate should not adopt the budget that we have approved, then you are quite right, Senator Prud'homee; that is a whole new ball game. However, we will cross that bridge when we come to it.
At this time, we are following the normal practice: the main committee first, the Internal Economy Committee next, and the Senate last. The Senate, of course, has the final approval on the budget. The budget, as determined, obviously must reflect our recommendations concerning staff and matters of that kind.
Senator Prud'homme: I am totally satisfied with that.
The Chairman: There is a motion before us from Senator Hervieux-Payette.
Senator Hervieux-Payette: Yes.
The Chairman: Is there a seconder for that motion? Before I ask for agreement on the adoption of the report, I want to make reference to one point which is fairly small. Although it was not included in this report, it should have been.
Senator Kirby and I were disinclined to pass a blanket motion respecting the travelling expenses of witnesses. As a matter of fact, we were disinclined to pay any travelling expenses for witnesses. However, we both agreed that there may be exceptional circumstances which would cause us to ask this committee to approve such expenses. If that is agreeable, perhaps such a motion could be included in the report, namely that for all practical purposes we are not paying the travelling expenses for witnesses unless a claim is made, at which time we may ask the committee to approve those expenses.
Senator Bryden: Does that mean unless the travelling expenses are requested? In other words, unless the witnesses request reimbursement?
The Chairman: No, it is more than a request. There obviously would be a request, but we would need to examine the reasons for the request.
Senator Lebreton: They would have to be pretty good reasons, too.
The Chairman: For some Senate committees, witnesses who are not in a position to pay their own expenses are still called upon to come to Ottawa, and things of that type. It is customary, in those instances, to pay their expenses. However, we do not anticipate that at this time in our proceedings.
Senator Bryden: In a trial, unless you tender travel money, you cannot require your witness to show up. It may be the case that no matter how poor or how rich the person is, if the witness lives in Vancouver, Saskatchewan or Newfoundland, and does not come here when summoned to do so, I would think it is a complete answer to say, "Well, someone has to tender my travel costs."
I do not know the practice here; I just know that it is a complete answer in court for a witness to say: "I have no travelling money." That is why I made the indication that if we have a significant witness -- and they probably would not do this -- who decided to use the fact that no travel money was available to cover expenses for attending the committee meeting, then it might be valid to say that we will not tender travelling money unless requested. But if it is requested, and it is important that that person be here to testify, then the money should be provided.
The Chairman: Is that agreeable?
Senator Lebreton: There would need to be a pretty good reason why they could not pay their own expenses. I would not want the potential witnesses to think that they have a loophole, and that we will pay travel expenses automatically upon request. It should be done only after serious consideration, and they must have valid reasons.
Senator Hervieux-Payette: We have two categories of witnesses here: Those who are directly linked to the airport operation, and experts whom we might call upon from time to time to clarify things. I cannot speculate on what type of expert we will call upon. Normally, they would be from this area. However, in this case we must know, for example, about real estate in the Toronto region. We cannot call in someone from another part of the country, because the nature of the transaction was related to the real estate market in the Toronto area. These are the exceptions that I would contemplate. They would be coming here at our request to help us understand the witnesses who are directly linked to the airport matter.
I agree with Senator LeBreton that when people are directly involved and they are part of the whole transaction, the rule should be that we do not pay their expenses. However, when we call in experts who are not involved in this matter but are here to help us clarify the whole matter because we are not experts in these questions, we might then contemplate paying the expenses of those witnesses. These are the two categories of witnesses that we are dealing with here.
Certainly, we will not call in three dozen experts. A few witnesses from various sectors could be useful. If they are in Ottawa, fine, but we should be attempting to find the best people to help us understand the whole transaction. That is the way I see it.
Senator Lebreton: However, this is not what you and Senator Kirby had discussed.
The Chairman: No, we had agreed not to pay travelling expenses unless special circumstances were involved. That was all.
Senator Jessiman: I can contemplate other examples, over and above experts. Both sides may wish to have someone testify before this committee. Maybe one side or the other -- be it the government or the contractors -- should be paying for that. We should look at it case by case.
Senator Prud'homme: To play on the safe side, too, before you start your important task -- that is, if you were given the go ahead by the Senate, and it seems that you will get that permission, although you never know -- has any consideration been given to the possibility that not all witnesses have the funds necessary to be accompanied by advisers?
You will have the top business men who all have legal and accounting expertise. In a case of this kind, you will have witnesses of great importance who all have the means at their disposal to be well accompanied by lawyers, accountants and other experts. However, you will have others who may well feel that they should be treated equally but do not have the funds to pay for those services. Because of the nature of this inquiry, which could lead to further action, they may beg the committee to pay for their legal expenses. There are precedents, I am sure.
Where do you draw the line? I represent the taxpayers, as we all do. I am worried that we may think it is easy to sit for 18 hours and everything will be fine. But many unavoidable circumstances may take place that will only add to the cost of our budget.
At the moment, we do not have the money in the budget of the Senate to cover even that request of $300,000. I know that this is not the place to make this debate, but the money is not there. That means that for this inquiry we will have to cut somewhere, or else ask Parliament for a supplementary budget.
I listened attentively to our legal expert, Mr. Bryden. He may tell me right away "No, that situation does not exist." and that the committee may turn down any request from witnesses who may wish to have their experts -- that is, their lawyers or accountants -- appear with them. However, not everyone feels at ease in appearing before a committee of this importance. For some people, it will be a traumatic experience. I am thinking of the lower echelon of people whom you will have to call upon. Those types of names were being mentioned a lot. I will not defend them, but these people also have the right to be treated in the same fashion. Some of them have no more work, but their name is still on the list.
Senator Tkachuk: Do you not have Legal Aid in Ontario, as we have in Saskatchewan? These matters can be discussed when they arise. We cannot possibly anticipate everything that will happen. We can only proceed as best we can, and deal with issues as they arise. Then we will actually get somewhere.
The Chairman: Remember that the phrasing of the clause was that Senator Kirby and I, who were given this task, are both disinclined to pay travelling expenses for witnesses, except under special circumstances as they arise. I gather that the committee has put their faith in this committee of two, rather than in the entire committee.
Mr. Nelligan is reminding me that after I introduce him, he may have something to add to this.
Having said that, are we in favour of the motion? Do we have a seconder for that motion?
Senator Lebreton: I second the motion.
The Chairman: All in favour of the adoption of the report?
Hon. Senators: Agreed.
The Chairman: Carried. I would now like to introduce to the entire committee the counsel who was recommended by Senator Kirby and myself. I have always been very cautious about providing any information to the committee unless it is in both languages, but to translate the CV of Mr. Nelligan would require four translators for a week and a half, so I intend to read it into the record.
John P. Nelligan, Q.C., L.S.M.. His areas of expertise are: Civil litigation, criminal law, professional negligence, general advocacy, labour and employment law and municipal law. He is a B.A. graduate of the University of Toronto and practised in Toronto, with a law degree from Osgoode Hall and from York University. He is a founding partner of the Nelligan Power law firm in Ottawa. He was called to the Ontario bar, with honours, in 1949, received his Queen's Counsel in 1972, was awarded the Law Society Medal in 1991, the Laidlaw Medal for Excellence in Advocacy in 1994, and the Advocates' Society Medal in 1995.
Mr. Nelligan has held many positions in professional organizations, including the chairmanship of a number of committee task forces and a membership on the executive committee of the Canadian bar. He served as President of the Advocates' Society. He is a Past-President of the Canadian Civil Liberties Association, the Thomas Moore Lawyers Guild of Ottawa, the John Howard Society of Ottawa, and has served on the boards and committees of a number of social agencies. He is a Fellow of both the American College of Trial Lawyers and the International Academy of Trial Lawyers.
I am exhausted. We will leave the curriculum vitae for now. There are copies of it should someone desire them, but I will now introduce Mr. Nelligan to the committee so that he can say a few words to you.
Mr. John Nelligan, Counsel to the Committee: Honourable senators, I am pleased to be here because I think that this might prove to be a challenging assignment. I hope that we can resolve the issues that were put before the Senate. I am taking the resolution of the Senate at its face value, and the comments of the speakers on the resolution that it is the desire of all members of the Senate to see that there is a full and fair hearing of all of the issues which have concerned your body. I should like to think that we might be able to achieve that.
I am cognizant of Senator Prud'homme's concerns. I can assure him that if my contract is cancelled, I will not sue for damages.
Senator Prud'homme: But your contract cannot be cancelled before you are hired.
Mr. Nelligan: I will take that chance.
I should like to say something else about the comments that have been made concerning witnesses. This inquiry will be a bit different from the ones you normally conduct, in that you are not simply looking for policy resolutions but are on a fact-finding mission. With that in mind, you will want to hear from various witnesses who have no axe to grind and have no part in these proceedings, but may have some facts that you want to know.
If, in my investigation, I find that there are such persons, I would recommend to the chairman and vice chairman that we assist those persons to attend. There are a number of other people who very much want to testify before this commission. I assume that they will attend voluntarily at no expense. However, I would not like to be inhibited in having some neutral witness unable to attend because of the cost. I will make those recommendations to the chairman and then you can deal with it in due course.
A word of caution about how we will proceed. I am aware of our limited budget. I realize the inhibitions that that creates. We have two excellent researchers who will, unfortunately, not be available full time until the end of the month. Therefore, it is important that during the proceedings witnesses can be heard and understood clearly, so that you can then ask meaningful questions with regard to what went on. That will be extremely difficult.
We have only three weeks before hearings begin, and I do not have any full-time researchers right now. I can undertake to try and have a coherent list of witnesses available for you so you can begin your proceedings and not have unnecessary delay.
I am concerned that there may be problems in the first week in getting the material together. I am hoping that you will have the cooperation of all the interested parties, and that they will assist us in seeing that we have the necessary materials and witnesses so that there are no delays. I am not at a stage where I have that assurance; I just feel that we should expect their cooperation.
Senator Bryden: What is the role of counsel to the committee vis-a-vis the clerk of the committee, when it comes to determining the procedures and the summoning of witnesses? It is my understanding under other circumstances that the Clerk of the Senate, who is responsible for the committee, has some role to play in this.
The Chairman: The clerk of the committee is the administrative head of all committee procedures. He is the servant of the committee and follows the directions of the committee with regard to writing and inviting witnesses, all of the financial matters involving the proceedings, the determination of witnesses and the sequence to be followed in the calling of such witnesses. However, who will be called is largely in the hands of counsel to the committee. Senator Kirby is aware that any witnesses he has suggested be called will be considered, but the determination of the sequence of calling those witnesses is largely determined on the basis of the recommendation of counsel.
Senator Bryden: Mr. Nelligan, would you indicate what you see as the role of counsel to this committee?
Mr. Nelligan: My understanding of the limited role of counsel in a Senate inquiry is that I will review the material available and contact witnesses that I feel will assist the committee, and then proceed to try and identify issues that are relevant to this inquiry, and ensure that there are witnesses available who can testify on each of those issues. I will also ensure that those witnesses testify in a logical sequence so that we can follow the context of the evidence. I will be responsible for the matter that is before the committee, but Mr. O'Brien will be responsible for the administration of the whole task.
As I understand your rules, you will be asking questions first and I will subsequently ask questions which I feel should be asked to fill in the gaps. I do not understand how this helps you, because you have not seen the witnesses and I have, so I am in your hands. However, I would suggest that witnesses who come from one identified position or another -- as they would in a normal Senate inquiry -- should make a statement, which would be an outline of what their expertise is. Then, with those documents before you, you can then ask them more meaningful questions, rather than having someone sit down and say, "My name is John Smith and I work at Transport Canada," and the following 20 questions determine who he really is.
I am hoping to work out a system whereby you will be briefed, in advance, with respect to the scope of knowledge of every witness and the areas that we want to deal with. If I understand correctly, the areas you are concerned with are the policy of privatization, insofar as it relates to this matter, which would be the matter of the original government policy, and whether or not it was departed from in the course of these proceedings.
There then seems to be a concern with respect to the negotiations and the way in which those negotiations were carried out, and there may be some question there as to whether the proper negotiation procedures were followed.
Then there is the question of the agreements themselves, and whether they were appropriate agreements under the circumstances, and how they relate to other agreements which have been entered into, either before or since, by the government and by other governments.
Finally, there is the question of the cancellation of the contract, and the procedure by which it was cancelled. In that regard, there may be a number of questions relating to Mr. Nixon, et cetera, as to his methodology, as to the conclusions he reached, and how that relates to the conclusions that other people made. Those, as I understand it, were the areas identified in your resolution.
I would like to think that when we are dealing with a witness, the witness will deal with, for instance, policy. When he finishes on policy, then you ask questions on policy. Then we move on to the next step and we will ask questions on negotiations. In other words, let us deal with one topic at a time. Otherwise, you will have so many little bits of trivial responses throughout that it may be difficult to determine any pattern. I am in your hands on that. That is the kind of organization that I thought I might be able to present to you, in order to make your task a little easier.
Senator Bryden: That is helpful for me. I agree with everything you have said. Will you meet with the chair and the vice-chair to determine that this is the path to follow?
Mr. Nelligan: That is right.
Senator Bryden: And if for some reason you wanted to add something, it would come back here?
Mr. Nelligan: That is right.
Senator Bryden: Ultimately, the determination of what is relevant to this inquiry and what is not is determined by this committee.
Mr. Nelligan: Exactly. I make recommendations to the chair and the vice-chair. If there is any problem, it comes before you.
Senator Bryden: Senators will ask their questions, and then the "clean-up hitter," Mr. Nelligan, will ask other, relative questions. Will we, as committee members, be allowed to ask questions for clarification, or whatever, from the responses that have come from a witness as the result of Mr. Nelligan's clean-up questioning?
The Chairman: Questions of the witnesses, you mean?
Senator Bryden: Yes.
The Chairman: I do not see any reason why not.
Mr. Nelligan: I do not think we are bound by any strict rules of evidence here at all. All we want are the facts. We do not want to harass a witness by asking the same question 10 times. However, as long as there is a doubt in your mind, you are the masters of the proceedings and you ask the questions.
There is one matter. I have already been approached by one counsel, and I believe there has been a letter to the chairman. They are asking for the right to attend and examine witnesses. My understanding of the procedure of this committee is that I will be the only non-member of the committee to ask questions. I have indicated to those counsel that they are entitled to be present. If they have some problem about a question being prejudicial to their witness, they can notify me as to their objection. They have a right to protect a witness from self-incrimination, if it arises.
However, if they have questions which they feel should be asked of a witness, any witness, they are to submit them to me. I will then decide whether I feel that those questions are of use to the committee, and if so, then I may ask those questions. Quite frankly, subject to your telling me otherwise, I do not intend to tell you whether each and every question is my own question or someone else's question. That is the only fair way. However, I will reserve the right to refuse to ask such questions. I do not want people on witch hunts of their own that have nothing to do with the issues before this committee, or asking if Mr. Smith was drunk the night before he signed the agreement -- that type of thing that has nothing do with this inquiry. I will censor the questions. Again, it is entirely up to you. You can think up all the questions you like and I will add a few.
Senator Prud'homme: I am hesitant to ask questions of counsel since, in my view, he does not exist yet. Sometimes harassing a witness is the only way to get to the truth.
Mr. Nelligan: That is your privilege, sir. I am stating that I will not unnecessarily harass any witness.
Senator Tkachuk: We can misbehave in any way we like, but he will not.
The Chairman: As Mr. Nelligan has indicated, we are still lacking research assistants. That is in hand. However, Senator Kirby will not be back until Monday. The names of the extra assistants, audit assistants, et cetera, which we may require will be cleared with Senator Kirby and myself, but at the present time, as Mr. Nelligan has pointed out, we are a little bit short in getting ready for the first hearing on July 4.
I will now read the biographies of our senior staff people. Dr. Gary O'Brien is the clerk of this committee. He completed his study for Ph.D. in political science from Carleton University in 1987. He has been the Director of the Committees and Private Legislation Branch of the Senate of Canada for the past eight years. In this position, Dr. O'Brien supervises the work of at least 10 committee clerks and numerous secretaries and administrative personnel. His knowledge of parliamentary procedure is one of the major factors contributing to the revision of the Senate rules approximately four years ago.
The fact that we managed to secure Gary O'Brien as the committee clerk, as far as I am concerned, is a major triumph for the committee.
With respect to research assistance, the two senior people in the Library of Parliament Research Division who will be working with the committee are Mr. Philip Rosen, who holds a law degree and was in private practice before joining the Law and Government Division of the Research Branch of the Library Parliament in the mid-1970s.
From time to time Mr. Rosen has assumed the role of Division Director, and is presently Senior Analyst with the Research Branch of the Library of Parliament. He has contributed his legal talents to countless parliamentary committee reports during his years with the branch. He is usually assigned as the permanent researcher to the Justice Committee of the House of Commons.
Jack Stillborn is a Rhodes Scholar, having obtained a Ph.D in political science from Oxford University. He joined the Research Branch of the Library of Parliament in the mid-1980s. Since that time, Mr. Stillborn has contributed to the research and writing of many committee reports. Most notably, he was a researcher with the House of Commons Human Rights Committee, and was also assigned to a special joint committee on the renewal of Canada.
That is the proposed staff, to date.
Senator Bryden: Are they all here?
The Chairman: Only Mr. O'Brien is here. Mr. Rosen and Mr. Stillborn are very busy with other tasks.
Senator Bryden: Can I ask that we receive copies of their biographies?
The Chairman: The only reason I read them into the record is that they have not been translated. Anyone who wants them can have them. I will be sending you material which is testimony from other committees, particularly that of the Joint Committee on the Scrutiny of Regulations, some of which I have already sent to you. The questions that followed that testimony are part of that committee's record. Since that testimony is in both languages, I intend to send this material off to all members of the committee.
If anyone wants the biographies which I have just read, they are certainly available. They are in English only. On request, I will be happy to give them to you.
Senator Bryden: English only is acceptable to me.
The Chairman: I was thinking about my friend Senator Hervieux-Payette.
Senator Prud'homme: I raised this matter in the Senate yesterday, as well. I am tired of having to request the translation all the time. It disturbs me, as well as some of the other senators. Translation should be done automatically. If the tables were turned, I am sure you would be as frustrated. It is not all right. I realize the chairman is very fair on this issue, but I just feel compelled to state my position.
The Chairman: As Deputy Chairman of the Standing Senate Committee on Banking, Trade and Commerce, I became particularly sensitive about that topic. That is why I read those curriculums vitae into the record.
Mr. Nelligan has indicated that he will attempt to receive statements from witnesses as early as possible on behalf of the committee so that senators can have a chance to examine them, but also so that those statements will be in both languages. One of our problems is with witnesses who arrive at the last minute with information for the committee, and we do not have the time to translate that information into the other official language.
Senator Prud'homme: Then it should be read in.
The Chairman: Honourable senators, it is necessary for us to proceed in camera in order to deal with the budget. I have copies here of rule 93 in both languages, indicating that:
(2) Except as provided in section (3) below, a standing or special committee may decide to hold an in camera meeting to discuss its business only when the agenda deals with any of the following:
(a) wages, salaries and other employee benefits;
(b) contract negotiations;
(c) other labour relations;
(d) other personal matters;
If it is agreeable, I will ask that the room be cleared, and that the only staff remaining would be our interpreters. Is that agreed?
Senator Bryden: No. We may go in camera to do this, but we are not required to do so, is that right? I see no reason why we cannot do this openly. It is public money.
Senator Tkachuk: It will be discussed openly at a later date because it must go before the Internal Economy Committee and then proceed to the Senate. Therefore, the matter will be discussed openly. I agree with the chairman; it is difficult to talk and disagree about particular fees to certain people in public.
Once the decision is made, the matter will go before the public in the Senate, and everyone can see how much money is being spent. However, I would feel uncomfortable discussing in public the fees of staff that have not yet been determined. I would be very uncomfortable doing that.
Senator Jessiman: Under what section are we proceeding in camera?
The Chairman: Rule 93.
Senator Bryden: I share the same concern that Senator Jessiman has expressed. In discussing the budget here, we are not talking about who will be paid these fees. We are talking about how much it will cost for legal counsel, how much it will cost for senior researchers. We are not debating the merits. We have already discussed the merits of the people who will be here.
I would like the hearing to appear to be as open as possible. Therefore, I would move that we do not proceed in camera.
Senator Hervieux-Payette: I agree, because we will not be mentioning anyone specifically. It is simply a pro forma discussion. We are discussing experts. Besides Mr. Nelligan, the researchers that are mentioned in our report are already established research staff members on the Hill, but they are not on board yet. We are talking about the standard fees to be paid to people with these qualifications. There is nothing which goes overboard. I, too, would feel more comfortable doing that in public.
We will not be dealing with junior people. I think $250 an hour will bring us people with 10 years of experience. It is the same with respect to the legal fees. That is the standard fee for people with the experience of our advisor. The rest are standard fees, again, for the research assistant. There is nothing personal about it. We are not evaluating the merit of anyone.
Will it be the total of all the fees that will be submitted to the Senate, or will we give a breakdown?
Senator Prud'homme: We will give a breakdown.
Senator Hervieux-Payette: If we give a breakdown, the same figures will be tabled in the Senate. I am comfortable with these figures. There is nothing that goes beyond the standard practice of today.
Senator Tkachuk: I am a simple businessman, and a senator. With respect to lawyers and accountants, their scale of fees is known. I hire senior accountants and I do not pay $250. Maybe the Prairies are different, but I have never paid $2,000 a day for a lawyer. Things may be different in Ontario.
These are the questions that I would like to ask, and I am not comfortable asking them in public, or with senior counsel here. If we to examine thoroughly what we will spend, let us examine it, instead of making assumptions of which I am not aware. After all, it is an open process, because it will also be debated in the Senate.
Therefore, if the public remains here in the committee room, I will simply pass it, and raise the matter again when the report of the committee reaches the Senate floor. There is no sense in debating the issue twice.
The Chairman: There seems to be a consensus that we should continue this meeting in public.
Senator Tkachuk: There is a consensus of everyone except me. Therefore, we should proceed. I can live with the will of the majority.
The Chairman: I was compelled to draw your attention to the Rules of the Senate. If it is the consensus that we do not proceed in camera , that is fine. Is that agreed?
Hon. Senators: Agreed.
Senator Tkachuk: I want to ask that question about the $2,000 a day.
Senator Jessiman: I am counsel also, and my fee is $250 an hour. I am working with counsel in Toronto on the same matter and he is charging $350 an hour. It costs more to do business down east than it does out west.
I would be happy to see this fee of $2,000 a day. The business matter I am dealing with involves millions of dollars. Counsel are actually being paid $4,000 per meeting. Such a meeting could be ten hours, or eight hours, or only a few hours. It is that important.
By the same token, the issue before us is important to the people of Canada, and I think this fee is very reasonable under the circumstances.
Senator Bryden: Coming from the maritimes, I have some sympathy for my friend opposite from the west. Some of us in the profession do appear to charge exorbitant fees. However, I would not do Mr. Nelligan's job for $2,000 a day, and I come from New Brunswick. I think this is a very reasonable amount, and I have no problem with it at all. It is great to have someone of his stature, knowledge and capabilities acting for the committee.
Senator Hervieux-Payette: I agree with you. This amount is not at the upper end of the scale. It is probably in the middle for Montreal, Toronto and Ottawa. We are retaining the services of someone who does not have to travel, et cetera. We are not covering expenses.
The amout of $2,000 a day, or $250 an hour, is quite average. As far as the lunches are concerned, there must be a policy. We have just followed the usual rule of the Senate for what is allocated for meals.
Senator Tkachuk: Is the $2,000 a day for the legal counsel's time, or is the $2,000 a day for the law firm's time? Are we paying for junior people in the firm doing research for $2,000 a day?
Senator Hervieux-Payette: No.
Senator Tkachuk: The fee is for the individual, ordinarily. Therefore, when there are other people doing research for counsel, we will pay a different price, is that it?
Senator Jessiman: It is not included. We do not know yet.
Senator Tkachuk: It will obviously not happen.
Senator Hervieux-Payette: We are the masters of that. Listed here is a research assistant on a salary basis of $55,000. That means that the research assistant would normally have a minimum of five years' experience. He or she would not be a junior. They would be lawyers, or someone with a similar background, but they will be individuals who can assist Mr. Nelligan. They would be people with good experience.
Senator Tkachuk: Are you referring to the senior research budget or to the legal counsel budget?
Senator Hervieux-Payette: There is a full-time person coordinating all of the research, which is Mr. Nelligan. He will assign work to the team of people preparing the material for the hearings. Is that the way it works?
The Chairman: The fees are paid to the law firm.
Senator Hervieux-Payette: For Mr. Nelligan's services?
Senator Bryden: It is my understanding that the senior researchers, those who are being paid $65,000 from the budget, would perform the role usually performed by the support staff in your law firm during a trial, is that correct?
The Chairman: In addition, the senior researchers are not part of Mr. Nelligan's support staff in the law firm.
Senator Jessiman: They will be support staff to him here. He will use them. If he did not have them, he would need to have someone from his office to help him.
The Chairman: Yes.
Senator Bryden: For clarification, with respect to the five return trips to Toronto for one person, if Senator Kirby is having his way paid back and forth, I want mine paid, too. Or is that an estimate for bringing witnesses in from Toronto?
The Chairman: There is the possibility of Mr. Nelligan having to travel in order to speak to a witness.
Senator Hervieux-Payette: To ascertain facts?
The Chairman: Yes.
Senator Bryden: I would move that the committee adopt this budget, and submit it to the Internal Economy Committee for approval.
Senator Tkachuk: I second the motion.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Senator LeBreton: Will the committee have full access to the testimony taken before the House of Commons committee for background?
When Bill C-22 was before the House of Commons committee, there was a great deal of testimony given. I am not saying we should go through all of that, but perhaps we could have copies of the more relevant testimony.
The Chairman: Certainly.
Senator Jessiman: I have it all in one booklet.
Senator LeBreton: Perhaps you could have someone in your office photocopy it for us. I do not want to read all of the testimony, but if there is some relevant testimony in the House of Commons committee proceedings, it might just save asking a whole lot of questions again.
The Chairman: I will obtain the entire testimony and send it to all committee members.
Senator Jessiman: Will committee members receive a copy of each day's transcription of the proceedings one or two days following?
The Chairman: Yes. We can obtain the unrevised minutes of the proceedings within hours.
Senator Jessiman: I should like to have those so that I will have a complete copy of all of the proceedings on this matter.
The Chairman: I would like Mr. O'Brien to comment on one aspect of the taking of the evidence, insofar as it differs from what we have been used to by way of our normal Senate proceedings or committee proceedings. Would you like to refer to the editing matter?
Mr. O'Brien: If there is an agreement that the committee will swear in every witness, the reporting will be different. The normal reporting of our Senate chamber, as well as that of our committees, is quite heavily edited. There will be much less editing, or much less leeway to edit, if the witnesses are sworn in. I have been informed of this by our Senate Debates people, who have obviously discussed the matter. Many of them are court reporters to begin with. This means that the testimony will stand as it is, verbatim, and the witnesses will have very little leeway to make any changes. This will actually speed up the production of the documents.
However, I caution everyone now that if it is to be sworn testimony, that goes for both the witnesses and our members, and there will be a lot less freedom to edit the blues as they come out. They will certainly be available within 24 hours of the meeting and distributed to you.
The Chairman: It is also the intention to widely disseminate each day's evidence to the media without comment.
Senator Bryden: Yes. This is a very serious business that we are dealing with, and this may be the only point at which it is possible to be a little less serious. There was a great deal of quoting of Shakespeare from Hamlet , among other sources, as we went into this. I have another quote as we launch on our adventure. It comes from Alice's Adventures in Wonderland , Chapter 11, "Who Stole The Tarts?"
At the trial of the Knave of Hearts, a writing of verses was introduced by the White Rabbit, and the King instructed the White Rabbit thus:
"Read them," said the King.
The White Rabbit put on his spectacles. "Where shall I begin, please your Majesty?" he asked.
"Begin at the beginning," the King said, very gravely, "and go on till you come to the end: then stop."
There was dead silence in the court, whilst the White Rabbit read out these verses....
I think that is very instructive: We shall begin at the beginning, and go on till the end, and then we shall stop.
Senator Tkachuk: Will we get all of the documents from Mr. O'Brien's office? We can just go there and pick them up?
Mr. O'Brien: Yes. We will have a document centre up on the ninth floor of this building, where Mr. Nelligan's office will be as well. Counsel will be on the premises, and he will have privacy. There is a room there for you to meet him, and he will be right in the very epicentre of where all these documents will be.
Senator Prud'homme: On examining the budget carefully, we also realize that we are talking about the summer holidays.
It has always been customary to require staff to take their overtime during the summer when the committees are not meeting. On reading the budget closely -- and I will continue to do so until Tuesday -- I note that no provision has been made for hiring additional staff and for having extra staff on standby. There is also translation, transcription and other committee services to consider.
Is there enough time to get a clear idea of the costs involved? After all, I am giving you four days' notice. I do not want to show up next Tuesday before the Committee on Internal Economy, Budgets and Administration and be told that they have an approximate idea of the cost.
Mr. O'Brien: We will have all the staff we require for our study. It is normal for employees here to understand that when the Senate or one of its committees is sitting, staff must be available to provide services.
[English]
Senator Prud'homme: There would be no necessity for supplementary staff?
[Translation]
Mr. O'Brien: Not at all. This includes stenographers, translators, messengers and committee staff.
[English]
Senator Prud'homme: The reason I ask is that, for example, the Senate sat on Monday night. I know the staff were pleased about that. They get paid time and a half on a Monday night, because the Senate does not usually sit on Monday nights. To me, that is a cost.
[Translation]
Mr. O'Brien: It may be that some Senate staffers receive extra pay when they work overtime in the evening. However, they are more or less the same people who normally work when the Senate is in session.
[English]
Senator Jessiman: Unless we hear otherwise, then, we will assume that, as a committee, we will meet again on July 4 at 3:30 p.m., or is there an earlier time?
The Chairman: There may be reasons to come together before that date. Certainly, we must communicate.
Senator Hervieux-Payette: The last time we met, I was under the impression that there would be a meeting on procedures, and to study the powers of the committee. A briefing session will be necessary.
The Chairman: Earlier I made reference to material that I intend to send you, which is evidence given by Diane Davidson, legal counsel to the House of Commons, before the Joint Committee for the Scrutiny of Regulations. This is an interesting document which deals with a number of things that may occur in the course of our inquiry.
Senator Jessiman: Are you intending to send us the material rather than have a meeting for that purpose?
The Chairman: I will send it out first. I had hoped that the Department of Justice would be helpful in a number of areas. However, they are reluctant to assist because they consider their client to be the Department of Transport, and they do not want to mess up that relationship.
Nevertheless, there is material available which answers many of our questions. Parliamentary committees have unlimited powers, except that we lack the power of sanction when the Senate is not sitting. For example, anyone who refuses to come or to testify before our committee is automatically in contempt of Parliament. However, we will not be able to do anything about it. If the witness is extremely important, we could ask the Senate to be recalled during the summer as soon as the incident occurs.
Senator Bryden: Once we have received the material, if Mr. Kirby and our counsel think that it would be helpful for us to meet and go through the proceedings before we bring in our first witness, then that is probably what we will do. I believe Mr. Nelligan would be the person from whom we would want to take advice at this stage, rather than someone else. He may do the briefing that we thought might have been done by the Department of Justice, if it is necessary.
The Chairman: That is a good suggestion. We are here, technically, till June 23. Certainly it would be possible to convene the whole committee and be briefed.
Senator Tkachuk: Would it be possible to have a resolution from the Senate that would empower sanction to a committee, or is sanction totally reserved for the Senate?
The Chairman: The Senate cannot empower sanction in advance.
I would also like to end with a quote from Shakespeare today. I was slumped in my seat in the Senate, my eyes half closed one afternoon when Senator Lynch-Staunton and Senator Fairbairn were quoting Shakespeare to one another, and I thought to myself simply:
MacBeth doth murder sleep.
Senator Prud'homme: There may now be meetings for the members of the committee. I am not a member of any committee, by decision of the Government Whip. I raised this issue in the Senate. At that time, Mr. Molgat, who was the Deputy Leader, stated very strongly that there was no problem. Any senator can go to any meeting. The only difference between a member of a committee and a non-member is that the non-member cannot vote. That was reaffirmed in two subsequent debates.
I am not a member of this committee, but I am probably the only non-member who has followed this event from the beginning, participated in the debate, and made amendments which, if carried, could have avoided this whole committee last summer. However, those amendments were disregarded. I would like to believe that if it is the wish of a non-member of the committee to participate, he or she would not be excluded from any meeting that may take place, even those that are held in camera.
The Chairman: You are correct in your interpretation of your rights to attend any meeting, in camera or public, of this committee.
I have not yet had an opportunity to speak to Mr. Nelligan with respect to what form our committee will take before June 23. I must seek advice on that, whether it will be just a meeting of the committee members to discuss witnesses, or other matters.
Senator Hervieux-Payette: There is no problem if he wants to spend the whole summer with us. We have agreed to spend our vacation here.
Senator Prud'homme: I would not dare miss any of your questioning.
The committee adjourned.