Proceedings of the Standing Senate Committee on
Privileges, Standing Rules and Orders
Issue 3 - Evidence
OTTAWA, Tuesday, November 30, 1999
The Standing Committee on Privileges, Standing Rules and Orders met this day at 4:35 p.m. to consider its agenda.
Hon. Jack Austin (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we are here today to continue our consideration of the question of privilege raised by Senator Andreychuk. In speaking with Senator Andreychuk this afternoon, she informed me that she has a conflict in terms of appearing before the committee. I told her that, as far as I could see, her attendance was not required, although it is always desirable.
I mentioned the draft report and told her that we would be reviewing it this afternoon. She said that she believed that members of the committee understood what she was seeking and as such would be quite content to have the report considered by us. Therefore, I propose that we go through the draft report and see if we can agree to it.
The other item that I wish to deal with relates to the question of privilege referred to us by the Senate. It was raised by Senator Bacon. When I reviewed the November 24, 1999 Debates of the Senate extract, it seemed to me, and to those who spoke on the question of privilege as well as to Senator Bacon, that the matter is for all practical purposes the same question that is before us.
A similar event has happened in the Standing Senate Committee on Transport and Communications. Therefore, the way I would like to proceed is to invite Senator Bacon to address us in the same fashion as we asked Senator Andreychuk -- that is, to provide advice with respect to the question of privilege and to review with us the remedy that she is seeking, what it is that she would like the committee to do. I have no advice from her on that particular point.
It is for that reason that I asked our clerk to send out a notice for tomorrow at 12:00 to 1:30, which is our usual sitting time. However, I would only proceed tomorrow if the committee were agreed and if Senator Bacon were available. I should like to have her evidence at the earliest time and then proceed in the hope that the report that we would make before we adjourn in December would be a full report on both questions of privilege, that of Senator Andreychuk and that of Senator Bacon.
Before proceeding to review this report, I wish to comment on the question of privilege raised by Senator Kinsella: I should like to proceed with that as well in the hope that we might conclude the matter in the month of December. That may not be possible. We will learn more about how we can proceed shortly.
I have asked the clerk to determine whether Dr. Chopra is prepared to give evidence before the committee in a public session. If so, and if the other witnesses are prepared to do that, then the question of in camera proceedings is beside the point and we can proceed with the evidence next week.
I did want to advise honourable senators that I will not be able to be here Tuesday of next week. As such, if Dr. Chopra is available, perhaps Senator Grimard could chair the committee in my absence, and then I would review the evidence of the committee.
If that is agreeable, honourable senators, let us look at our draft report. Is there any desire to go in camera in the discussion of this draft report? I think we should make it a principle to be in camera for the discussion. However, I am quite happy to do this particular draft in public if honourable senators have no problem with that.
First, I should like to say that this draft is very well done, in my opinion. I thank Mr. Robertson and the clerk and, for that matter, anyone else who may have assisted in the process. It conveys very well where we are going in these discussions.
Therefore:
1. Pursuant to its order of reference from the Senate on October 13, 1999, your Committee is pleased to report as follows on the question of privilege raised by the Honourable Senator A. Raynell Andreychuk.
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.
As I go through this as quickly as I can, perhaps those whose mother tongue is French could follow the French version, and if any problems arise you could so indicate.
Senator Grimard: If we have any comment, we can do it by paragraph.
The Chairman: Yes, as we review the paragraphs.
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. Your Committee met to consider this question of privilege on Tuesday, November 23, 1999, and Tuesday, November 30, 1999, at which times Senator Andreychuk was present.
Senator Rossiter: That may have to be amended.
The Chairman: Senator Andreychuk is not present. That may have to be amended.
Senator Rossiter: Wait until the meeting concludes.
The Chairman: You are absolutely right.
6. From the discussions in the Senate and your Committee regarding this matter, it is clear that the Standing Senate Committee on Aboriginal Peoples was engaged in the study of the issue of aboriginal self-governance, with an original deadline for reporting to the Senate of November 30, 1999. In September 1999, the Committee had stopped its hearings and had been meeting in camera to discuss a draft report. It appears there were several draft reports, all of which were marked "Draft," and "Confidential" and "Not for Distribution." No report had yet been adopted nor had the report been presented to the Senate.
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 the 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. 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.
9. 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. 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 the 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.
10. 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."
11. These comments 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.
Those are the statements of facts and rules as they appear in Beauchesne, and in the Australian and British practices.
12. Your Committee has determined, on the basis of the facts presented and after a consideration of the authorities, that the report of the Standing Senate Committee on aboriginal governance was released prematurely and without authority. The Committee was considering a draft report. at in camera meetings, and no report had been presented to the Senate. This clearly constitutes a breach of the parliamentary privileges of the Senate and of Senators, and a contempt of the Senate has been thereby committed.
13. After due consideration, your Committee has decided, however, that it is neither necessary nor desirable to conduct an investigation or inquiry into the source of the leak, or to assess culpability. The damage has been done, and the important thing is to avoid a repetition in the future. This incident should be taken as a warning and a reminder of the seriousness with which we should view confidentiality.
Senator Grimard: May I make a comment?
The Chairman: Yes, any time.
Senator Grimard: "After due consideration, your Committee has decided that it is neither necessary nor desirable to conduct an investigation..." If it is not necessary, or desirable, why do we have at least 10 other paragraphs with the recommendations? Did we decide not to investigate, because we knew in advance that we could not find the person who is responsible for the breach of privilege?
My suggestion would be to change the wording. It could read, for example, "After due consideration, your Committee has decided not to conduct an investigation or inquiry into the source of the leak." Why are we obliged to say "neither necessary nor desirable"?
The Chairman: I agree with your suggestion of a wording change. We could simply say, "not to conduct investigation or inquiry" and drop "necessary or desirable."
Senator Grimard: Yes.
The Chairman: Does anyone wish to discuss that?
Senator Joyal: Is there no investigation because we cannot find the person responsible for the leak?
Senator Grimard: Or mention the reason.
Senator Joyal: I find it surprising that, after reading the lengthy report of the situation, a short statement is made stating that the incident will not be investigated. Then we continue by saying that it is a serious matter and, as such, we recommend particular actions.
There should be a minimum explanation as to why we are not pursuing an investigation. Later in the report, the British precedent is quoted. I quoted that myself last week, when Senator Bacon raised the same problem. The sanction taken in the House of Commons in London was very harsh. People were suspended for 10 days without pay. They had to stand up and apologize to their colleagues in the House of Commons. It is very rare that such a punishment is handed out.
Here we have a similar situation, one that is recurring. We must address it for a second time, if not this week, perhaps next.
I believe that giving a quick blessing and not looking into who could have been responsible is following a short-hand, taking into account the seriousness of what we have concluded to be a breach of privilege of the Senate and of honourable senators.
The Chairman: I wish to ask a question, perhaps of our researchers. My understanding of the facts in the British situation was that there was an admission when challenged, because the factual trail was so clear. There was an admission, and then the question before the committee was to determine the sanction. They also did not have an investigation.
However, I may stand corrected. Have you background on the incident?
Mr. Jamie Robertson, Research, Library of Parliament: That is correct. The members who were disciplined in the United Kingdom admitted that they leaked the report without authorization and prematurely. There have been two or three reports on the incident in recent months. In other cases, where they have not been able to determine the source of the leak, the British house, like the Australian Senate, has chosen not to take action. You cannot impose punishment if you do not have evidence or proof as to the identity of the responsible party.
Senator Joyal: I agree. You cannot sanction a person without knowing the facts. However, it does not seem to me that we have even attempted to identify who could have been responsible.
The preceding paragraph states that the report was leaked. However, we have not had anyone from the Standing Senate Committee on Aboriginal Peoples give testimony as to when it was leaked.
It is as if we closed our eyes to it and did not wish to know.
Senator Kroft: I approach it from a slightly different context. I was comfortable when we left last week following the discussion concerning how far we intended to go with this, generally. On reading the draft report, what seems to be missing, in my opinion, is any reference to a recurring situation -- for example, that if this situation were to recur over and over, we would be called upon to act. Then I say to myself: It has happened again and again and within a very close time frame.
I am raising the question of whether we should look on this any differently because of the other cases? I am having trouble with the isolation or the combination of them all into one. Does the fact of other incidents change our view of how we are treating this?
Senator DeWare: It is possible that we may have decided not to go into an investigation in this case because of the presentation made to us by Senator Andreychuk. We possibly were swayed by her remarks that it was not her intention for us to try to find the details. She wanted to bring it to our attention because of the fact that she thinks that senators and staff need to be aware of confidentiality.
That may have sidetracked us. We may have thought that it would not be possible for us to determine who did it. Therefore, her idea was not to pursue this; it was to bring it to our attention.
The Chairman: Senator DeWare's point is correct. Senator Andreychuk felt that the Senate itself had been lax in its practices with respect to confidentiality, and that in equitable terms we should raise notice to all concerned.
This was the example that we would use. We would raise notice to all concerned that this is a most serious breach of our privileges and practices and that should it recur, once notice has been given -- we still have not given our notice because we have not tabled our report -- then the Senate should be quite vigorous in endeavouring to determine how a leak took place.
The second issue is the one that Senator Joyal and Senator Kroft raised. There is the practical question of chasing ghosts in our current practices. We can come back to the wording on how we express ourselves later.
I have discussed with staff the way in which we would go about that. Every senator would be called under oath. You would call every person on their staff who had access, as well every person on this committee staff who had access.
What person who leaked this report is going to admit to it? In the British precedent, which I think is valuably raised, a confession was forthcoming after a lie told by a member of Parliament, to Parliament, was discovered. That brought on the sanction of removal from Parliament. Therefore, it is a lot easier to say, "Yes, I did it and I am sorry," and receive a 10-day suspension than it is to be punished for lying, which is the ultimate crime in Parliament.
How do we create an investigatory mechanism? Let us say hypothetically that Senator Bacon says that she is not satisfied with the Andreychuk solution and wants an investigation. We would need to ask what facts Senator Bacon has to present to us? Would we act based on suspicions?
Normally in Parliament, we proceed on the basis of a charge. Some senator accuses X, and then we investigate to see whether the accusation can be proved.
That brings me to another point -- because I think the subject is not only important but also should not be dismissed lightly; namely, the standard of proof that this committee would adopt in making a finding if it had some evidence. I turn to our clerk and our counsel here. Have they, or our researcher, any advice as to precedent regarding standard of proof.
I would be delighted to have the committee learn some background on that issue. We could then come back eventually to what we can say in this report. Unless we have a modus operandi, bluffing is something I would not wish the committee to try to do.
First, we require some advice on the standard of proof or the burden of proof.
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel, Office of the Law Clerk and Parliamentary Counsel, The Senate of Canada: Mr. Chairman, I do not offhand have an answer to that. It is something that I would have to research. What I can recall from my readings is to say that parliamentary proceedings are not court proceedings. As such, the proceedings are conducted in a different fashion. They are conducted for different purposes and for different standards. I am sure that I can produce those quotes for you. It may be that you will establish your own standards as a result of that.
The Chairman: This leads us down a fascinating trail. First, is any parliamentary committee required by the Charter to proceed in a fashion similar to that which one would expect from a judicial tribunal? Can we arbitrarily find someone guilty of a breach of parliamentary privilege on a matter that does not touch the Charter, there being no place for that person to go if they dispute our finding?
Second, what is the practice in the House of Commons with respect to breach of privilege? How far have they investigated? Are there any precedents in recent times of the House of Commons pursuing a factual inquiry and making a finding of breach of privilege against anyone so accused?
Mr. Robertson: Yes, they have made findings that individual members have breached privilege. In most cases, as was said, there is a specific charge against a member; that a member's actions or inactions constitute a breach of privilege, or that a person outside of Parliament has breached parliamentary privilege by his or her actions. An example would be interfering with a witness.
In the case of leaked reports, the precedents are different in the House of Commons than in the Senate. As I mentioned last week, in the House of Commons the Speaker wants a charge against a particular individual prior to referring a leaked report to a committee.
Last December, a report by a subcommittee studying amateur sport, which was chaired by Mr. Mills, was leaked to the media. A member rose in the house and alleged that Mr. Mills had leaked the report. Mr. Mills got up and said that he had not. The practice of the House of Commons, as I believe it is of the Senate, is to accept the word of the member. Therefore, the matter did not proceed.
Usually, House of Commons committees would not investigate by calling before them a number of people and asking them questions.
With respect to an allegation that a particular member or person has breached privileges, there would be hearings. I do not believe that they have specifically set out the standard of proof that they apply. However, I believe that it would be a fair assumption that they are applying a civil standard equivalent more to a balance of probability than to beyond a reasonable doubt. However, as Mr. Audcent said, it is inherently a political decision, in that parliamentary committees are not bound by rules of evidence. They cannot, as parliamentarians, divorce their political actions and decisions from their adjudicative actions.
However, there certainly have been cases where individuals have been called before committees. There was a recent case of a Bloc Québécois member sending out a communiqué to members of the Armed Forces during the referendum asking that they join the Quebec forces after a positive outcome in the Quebec government referendum. In that case, it was the word of the member who had raised the question of privilege against the word of the Bloc Québécois member. Both members were heard and the committee made a decision. That decision probably rested on political grounds as much as evidentiary grounds, but that is the nature of parliamentary privilege.
The Chairman: I recall that when Senator Joyal was co-chairing the joint committee in 1980-81, the question of whether the Charter applied to parliamentary privilege was raised. My memory is that Parliament is exempted from the Charter.
Senator Joyal: That has also been interpreted by the court. The court has held that legislative assemblies are masters of their own constitutions and proceedings, and the court will not intervene to apply the Charter.
Of course, the Charter includes rules of natural justice, which any legislative assembly in a democratic country would like to apply to itself, but the court will not exercise its powers of revision in what are deemed to be internal matters of Parliament, be it the Senate, the House of Commons, or provincial legislatures.
I should like to hear Mr. Audcent's comment on that.
Mr. Audcent: Honourable senators, in a way, this is a moment of truth. For several years, I have been following the issue of the applicability of the Charter to Parliament and I am very uncomfortable with some of the decisions and some of the commentary.
Section 32 of the Charter says that the Charter applies to the Parliament and Government of Canada in respect of all matters within the authority of Parliament.
The decision to which Senator Joyal refers is the Donahoe decision. The Senate intervened and I worked very hard on that file and followed it quite closely. Some of what has been written about what the court said in Donahoe is not exactly correct. In my understanding of the Donahoe decision, the court said that the Charter does apply to Parliament, and then it carved out a big hole. It said that it does not apply to privilege, and of course your proceedings are privileged. That means that it applies to the hallway but not to the meeting room, if you like.
I would argue that the court had a very particular perspective. The court has also said many times that it is the enforcer of the Constitution. Therefore, when the court says that that part of the Constitution does not apply, in essence it is looking at it from its point of view, since they are not the people empowered to enforce the Charter and apply it to you.
That is true if you look at section 24, which says that anyone whose rights or freedoms, as guaranteed by the Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. I would be the first to rise to defence of this institution and say that the courts are not courts of competent jurisdiction over your proceedings, and we would resist that interference.
Having come to the conclusion that the courts are not courts of competent jurisdiction over your proceedings, it leaves the question of the standards that you want for your institution. Are you saying that these Charter standards, these fundamental and basic values that apply everywhere else in society, do not apply within your proceedings, or are you merely saying that they are fundamental values, it is just that the courts do not and apply them?
There is a big question to be examined, one that has never before been raised in the Senate. I do not know if you will want to get into it at this time. I leave that problem with you.
The Chairman: Just to review, we have been examining what would be involved in an investigation. It may be, as I said earlier, that Senator Bacon will want an investigation. Before we close on this report, we will want to have canvassed the significance of moving in a different direction at this time.
There will undoubtedly be other breaches of privilege while colleagues here are in the Senate. It is very valuable to have this background and to know what might be entailed in the consequences of an investigation.
Senator Robichaud: This is the point. We have a situation of fact. There has been a breach of privilege. An offence has been committed. It is a serious offence and we all agree to that.
If we are serious when we come to the conclusion that it is a serious offence, should we not order some sort of an investigation? Is it advisable to invite the writer from the National Post who wrote the initial story to appear before us to divulge his source of information? Should he decline the invitation, could we subpoena the author as a witness?
If we are serious about the fact that this is a serious offence, let us be serious.
Senator Kroft: My point is really drawing, if I may, on this. You used the word "bluff" earlier, as did, I believe, Senator Joyal.
What happens if a situation like this one happens two or three times again? Would we be asking ourselves whether we wish we had been clearer or more definitive or stronger in our actions.
I am asking honourable senators, in our consideration, to imagine for the moment that there are two or three more events in the next year: As such, would we look back on this situation and say, "Would that we had done something clearer and set a better grounding for it"? That is a better context.
Senator Pépin: I understood that the decision we were making was to be driven by Senator Andreychuk's request. She mentioned that she does not wish to have an inquiry, she wishes to have guidelines. What if we have other senators who tell us that they want to make the situation stop?
I do not want to impose punishment, but on the other hand, what is our line? Should our position be that, yes, we agree that it happened, but will we always act in this manner?
Senator Rossiter: Senator Robichaud suggested the possibility of subpoenaing a media person. That would be like opening a can of worms. Can honourable senators imagine that person claiming the freedom of the press and taking the matter to the courts.
Senator Robichaud: If they refuse to divulge the information, we are stuck. However, at least we would have made an effort.
The Chairman: Allow me to sum up on this point.
When we met originally to discuss this issue, Senator Andreychuk said her concern at this stage was to raise the level of awareness of honourable senators and all persons involved in the work of the Senate. I asked her in a private discussion about the breach of privilege by the media. The publication is a breach of our privilege, and it is so interpreted in the British and the Australian practice. The person who releases the report and the person who publishes the report are both in breach of our privilege.
However, there is a major rule of law, if I can use that expression, that I believe applies, and that is that the law should do nothing that is ineffective. The committee should do nothing that is ineffective, I would argue, by analogy. If we look at the way in which the House of Commons acts after long and miserable experience there, they have now protected themselves by saying that they will not proceed on a question of privilege unless a charge is laid. You may view that as sidestepping. However, they have assumed that course of action because they do not want the dignity of the house to be affected by an ineffectual chase of a phantom fox over the plain.
If someone says Senator X released that report and I can prove it, fantastic. We are off and running. Therefore, we have two categories to look at. The purpose of this report is to say there is a breach of privilege. We take that very seriously. We will not enter into an investigation at this stage, and we could add, because Senator Andreychuk asked us not to investigate. That is the fact.
However, she did ask us to give the highest possible profile to our concern, and we do that. Then, as we move through the rest of the text -- and I asked for options -- the question that I am looking at is this: Do we recommend the kind of security process that is used, for example, in the Privy Council Office, special paper for drafts, all water-marked and numbered? Should we collect the drafts from senators up until the last draft being considered so that nothing goes awry? These are practices that we could recommend to the Senate.
Then there is the question of sanctions. What kinds of sanctions are we discussing? I would argue that there is no more serious breach of the Senate's privileges than that by a senator, because the duty of a senator is at the highest level. Therefore, what should we consider?
Honourable senators, if we could go back to paragraph 13.
13.) After due consideration, your Committee has decided --
We are dropping the words "however, that it is neither necessary nor desirable" and substituting in their place the words, "not to conduct an investigation or inquiry as to the source of the leak, or to assess culpability." We can say: "After due consideration and on the request of Senator Andreychuk, your Committee has decided..."
The damage has been done and the important thing is to avoid a repetition in the future. This incident should be taken as a warning and a reminder of the seriousness of which we should view confidentiality.
Is that a satisfactory redraft?
Senator Kroft: I have only one question. We must be very clear about the use of the word "warning". We are warning ourselves to be more careful next time. It is not a warning to the world not to breach our privileges.
The Chairman: Perhaps it should read: " This incident should be taken as a warning to the senators$" Or should it say "warning to the Senate"?
This incident should be taken as a warning and a reminder of the seriousness with which...
Not "we", but "senators and Senate staff."
... senators and Senate staff should view confidentiality.
I think that is an improvement, too, in targeting it.
14. 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.
We are basically repeating ourselves there. Perhaps it is fine.
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 training of Senate staff and staff assigned to the Senate include an explanation 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.
Paragraph 14 is a combination of suggestions by various senators, not just Senator Andreychuk. I have no problem with the wording. I am sure she will be pleased that we made all these suggestions.
Senator Prud'homme: I often had to deal with matters such as this in the other chamber. We must not be more severe on senators than we could be on staff. That is obvious in the report.
The Chairman: I disagree.
Senator Prud'homme: Both should be toughly reminded.
The Chairman: Senators have the highest duty of all to the Senate.
Senator Prud'homme: However, upon their appointment, new senators will be fully briefed. I am not too afraid of the new senators for the time being. We do not know that it is not an old-timer who had good reason to leak the information.
I flag your attention to the phrase "new senators". It is as if the new senators inadvertently leaked the information.
Senator DeWare: There is a reminder just above that, that all senators should be advised in writing of the issues of confidentiality, in case they forgot.
The Chairman: Senator Andreychuk used specific wording in appearing before this committee on Tuesday, November 23. She said:
What is done is done. I do not want a repetition of it. It is an important issue. I hope we do not get ourselves into a position where brown envelopes are being delivered to us, something which members of the House of Commons deal with on a daily basis...
I am not here to point fingers as to whether it was a senator, a staff person of the Senate or a researcher who did this. The leak taints us all. There is not much point in trying to find out who did it. I feel that the rules were loose to start with.
What I am looking for is five recommendations from this committee. The first is that this committee alert all senators, in writing, of the issue of confidentiality. I ask that you remind them that confidentiality exists and that they are responsible for maintaining it, particularly in the day-to-day work of committees.
That will go to all senators after the Senate adopts this report. This committee will then remind all senators in writing.
Second, new senators should be informed of the issue of confidentiality. Many senators do not have a legal background. They come from varying walks of life and had no reason to work in a confidential atmosphere. They should have explained to them what a confidential draft in committee means.
Senator Pépin: I think that all honourable senators understand the concept of confidentiality when they arrive in the Senate.
The Chairman: The argument is that not all are quite as alert or understand the significance. What is the harm in being specific?
Third, the policy of the Senate in regard to its training of staff should undertake an explanation of confidentiality. I leave you that to explore. We have clerks. We have translators. I think some of them know what we mean by "confidentiality". However, there are others who do not.
The fourth matter I wish to address is the issue of researchers. When committees or individual senators employ researchers, do they have confidentiality explained to them? Is that part of their contract? Part of the problem in the Aboriginal Committee was that we were not using exclusively the services of the Library of Parliament. They know how to work confidentially.
Fifth, we all hire staff on contract. Should confidentiality not be spelled out clearly in the terms of such contracts? Conflict of interest guidelines are definitely stated in those contracts. However, there is nothing in them whereby the contractor agrees to work in a confidential manner for the purposes of a particular senator or a group of senators.
I would be satisfied with something along those lines --
Essentially, this parallels her comments. Frankly, I thought they were a very good checklist of points. If we are not serious about those points, then I do not know how we could be serious about a question of privilege.
Paragraph 15 states:
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.
16. 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 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.
17. 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 there to 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."
18. 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.
19. Your Committee has great confidence in the integrity and dedication of the staff or 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 be made to appreciate the onerous responsibility which parliamentary privilege imposes on them.
20. Your Committee hopes that the unfortunate situation involving the report of the Standing Senate Committee on Aboriginal Peoples will serve as a warning, and as a wake-up call, to everyone in the Senate that confidentiality should not be taken lightly. If awareness is raised among Senators and persons working for and in the Senate, there will be less reason for anyone to inadvertently breach the rules of confidentiality. Your Committee wishes to be very clear that it takes the issue of confidentiality extremely seriously, and will, in the future, investigate alleged violations fully. Without trust and integrity, the Senate and its committees cannot function properly.
I wish to comment on taking "the issue of confidentiality extremely seriously, and will, in the future, investigate alleged violations fully." That is the issue on which we are putting ourselves on a hook.
Senator Grimard: Taking into consideration the next question of breach of privilege, I think we are going too far. Your committee wishes to be clear and state what you will do in the future.
The Chairman: We need to soften the language.
Senator Grimard: Perhaps, we should just delete some word.
The Chairman: Where it says, "it takes the issue of confidentiality extremely seriously," it is okay to there.
Senator Beaudoin: Is it not risky to bind the committee for the future?
Senator Joyal: The same cause produces the same result. If we have no proof, what do we do?
You just stated, Mr. Chair, that without a charge we would not be intervening, that this is the way we proceed in our tradition. Therefore, we are binding ourselves in whatever the circumstances are that may arise.
The Chairman: Let me be clear. That is the way the house has decided to proceed. Our rules are not yet there. Our rules provide that the Speaker makes a ruling on prima facie breach of privilege. If he finds a prima facie breach -- not a charge, just a breach -- which means that you look at the consequence of what took place but not at the person or persons who caused it, or the house looks at the person or persons who caused it.
I wonder if we could use the words, "We will take whatever action is appropriate"?
Senator DeWare: "Appropriate "or "the committee finds necessary."
The Chairman: "Your Committee wishes to be very clear ... and will in the future take whatever action is appropriate." That sounds firm, and yet leaves us with the opening.
Paragraph 21 states:
21. While individual cases must be assessed on their own merits, your Committee reminds everyone that 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, and suspension. Your Committee notes, in this regard, that the British House of Commons recently suspended members for the unauthorized and premature release of committee reports. In appropriate cases, your Committee will consider recommending sanctions on Senators and other persons who breach the privileges of the Senate.
The next paragraph reads:
22. Suggestions have been made that the senators could be required to take an oath or pledge of confidentiality, perhaps at the beginning of each Parliament, as a means of increasing awareness and reminding Senators of their duties and obligations with respect to confidential meetings and documents. Your Committee believes that this proposal merits serious consideration.
Senator Grimard: I do not like that. I would delete that suggestion. Imagine the criticism that we will have.
Senator Prud'homme: Absolutely.
Senator Grimard: If we are obliged to have an oath at each Parliament$
The Chairman: Every four years.
Senator Grimard: I think it is too much.
Senator DeWare: It is in here already that we have reminded the senators of their position where confidentiality is placed.
The Chairman: Is anyone speaking for this particular paragraph besides me? No one? In that case, it is to be deleted. I thought I would try it on.
The next paragraph is as follows:
23. 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, must also be considered.
Shall we change that to say "will also be considered by this committee"?
Senator DeWare: Instead of "must"?
The Chairman: Otherwise, it floats into the air unless someone has responsibility for it. It will read, "will also be considered by this committee."
There is some redundancy in here, and perhaps you could edit the redundancy out while not losing the serious tone that this committee wishes to adopt.
Senator Prud'homme: The French and the English do not match in any event.
The Chairman: I was asking people whose first language is French to read along in the French.
Senator Prud'homme: In paragraph 23, the French has a much nicer flow than the English. There is no discussion about "will "and "must "and "should "and "shall". I like the French. The French corresponds to what you have in mind.
The Chairman: Maybe it is right. I am not good enough to say so. However, I will be happy if you would give our draftsperson, also a draftsman, any comments you might have about the French.
Senator Beaudoin: We always have that problem in legislation and reports. If you have the French version and the English version, we interpret one by the other, when necessary. I believe we should do the same thing in a case like this one.
That would be my first reaction. It should be as perfect as possible. However, if there is a difference between French and English, you go by the intention of those who have drafted the document. It is a general principle.
The Chairman: Absolutely, and we will leave it to the draftsmen to get conforming language.
Senator Prud'homme: I do not know who did the French, but I am very happy in my older age to read something as good as that.
The Chairman: I would ask Senator Grimard and Senator Pepin, who are part of the steering committee and have skills in the French language way beyond me, to cast their eyes over the French.
Senator Pépin: Take the name of the person who translated the document because it is very good.
The Chairman: I am happy to hear that.
Senator Pépin: It is exactly what the English is saying and it is very good.
Senator Kroft: Mr. Chairman, may I get clarification on the rule by which the Speaker makes his or her decision on whether or not there is a case of privilege.
The Chairman: I believe it is 41, but we will just check it here.
Senator Kroft: Am I correct that it results in a reference to the committee more easily than in the House of Commons? Would the difference be the absence of a specific charge, or a naming?
I am just wondering if that is within our purview. If the present rule results in these matters arriving at this committee frequently and more easily, and if we are not able to deal with them any more effectively, should we be considering whether or not there should be a different threshold applied as to what gets to the committee.
The Chairman: We would be recommending a change in the rule, similar to that in the house.
Senator Kroft: That is the question I am raising here.
The Chairman: We would be facing all questions of privilege with that defence.
Senator Kroft: I raise it because of our obvious inability to deal with it effectively when it comes here over the lower threshold.
Senator DeWare: We are going to find that out soon.
The Chairman: Could we just have some information on British and Australian practice in terms of our House of Commons practice. Is it required that a charge be made on a question of privilege in the British House of Commons or either house in Australia? I am putting you on the spot.
Mr. Robertson: In most cases, where a question of privilege is raised, a specific member or individual would be named.
In the case of leaked reports, both the British house and the Australian Senate have developed policies through their privileges committees that the committee whose report was leaked investigate the matter first. In this case, the Committee on Aboriginal Peoples would look at the matter first, investigate it as far as it could, and report to the full chamber as to who, if anyone, they could identify as having leaked the document. They have also added a requirement that the committee in question indicate how the leaked report interfered with or impeded its work. That is a condition precedent before the question can be raised as a question of privilege in the chamber. That is a policy decision taken by those chambers.
Senator Rossiter: That puts the onus on the committee to ensure that it knows where its reports are at all times.
The Chairman: Must they make a charge or simply make the finding of fact that we made, that, on the face of it, a breach of privilege has taken place, in which case it is an unnecessary extra step? However, if you add to it that we will not consider the question of a breach of privilege unless the committee of which the breach is alleged names names, then we are off the hook because we will hold what is in effect a trial if someone names names. If they do not, after writing that rule this committee will never have to deal with such a question of privilege again.
Is that where we wish to go? Senator Kroft has raised a valuable point. We have responded in the conventional way that the rule requires today. However, if we wish to rewrite the rule, that is a whole other discussion.
Is there a consensus to discuss the rewriting of the rule before we proceed?
Senator Joyal: We already have two other issues to deal with in relation to the same matter, those being the issues of Senator Kinsella and Senator Bacon. Once we have concluded our discussions on those, we might want to ask whether this is advisable, and take the opportunity in the meantime to reflect on that.
The Chairman: I take your point. I think that everyone here recognizes that if we issued this report and then changed the rule on Senator Bacon's question of privilege, we would look pretty silly. We will have to decide from the beginning how we want to handle questions of privilege.
I believe there is a difference between what we can do where there is a paper trail and where there is anonymity. In both of these cases, there is anonymity, with one exception in each case. In the case of Senator Kinsella's breach, there is a factual record and we can subpoena witnesses to get at it. That is another situation. Our major problem relates to anonymity.
I have a sense that colleagues would like to stop here and reflect on whether we want to suggest to the Senate a two-stage investigation: that is, that the affected committee carry out its own investigation and report to the Senate, and that we would only act if the Senate approved a process where we would take further action.
Senator DeWare: Would you like us to make that kind of decision before we proceed with the Bacon case?
The Chairman: Yes, before we proceed with either case. I would like both the Liberal caucus and the Conservative caucus to discuss which way we want this to go. I believe it will require the consensus of senators to change the rules at this stage.
Senator Kroft: It is very important that we think about this in the context of this committee appearing and, in fact, being repeatedly ineffective.
Senator Robichaud: Therefore, we will suspend the tabling of this report?
The Chairman: It is still under consideration. This entire meeting has been public, as these are important and difficult issues.
I have asked that notice be sent that we will meet at 12:00 tomorrow, which is our usual meeting time. At that time, I should like to hear Senator Bacon, if she is available, and move that question of privilege on to the agenda of this committee.
Senator DeWare: Senator Bacon is not here this week.
The Chairman: If Senator Bacon is not available, and we are not sure whether she is at the moment, the issue will have to be adjourned until she is available or until she indicates that she does not wish to appear before the committee.
Perhaps we should allow the notice to stand. Her evidence would not very long, and after we hear it we could adjourn. If she is not available, the clerk will advise everyone that the meeting is cancelled.
In the meantime, honourable senators, we will raise these other questions in our caucuses.
As I said at the beginning of the meeting, I will not be here next week. However, if Dr. Chopra is available to give his evidence, the committee will meet next Tuesday at 4:30 to hear his evidence and that of any the other witnesses who are available.
The committee adjourned.