Proceedings of the Standing Senate Committee on
Privileges, Standing Rules and Orders

Issue 10 - Evidence

The Standing Committee on Privileges, Standing Rules and Orders, met this day at 12:00 p.m. to consider the question of privilege raised by Senator Tkachuk, and other matters.

Senator Jack Austin (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I see a quorum and I call the meeting to order.

The first item of business is to deal with the reference from the Senate of May 4 in connection with a question of privilege raised by Senator Tkachuk flowing from an article which appeared in the National Post on the previous day, May 3, which quoted from an uncirculated draft report of the Banking Committee. Senators are familiar with the background. There is a package of documents in front of you, including excerpts from the arguments with respect to the question of privilege and the news story itself.

This part of our proceedings will be on the record. At some point in our proceedings we will continue in camera to deal with the question of privilege, but I believe that the facts of the question should be put on the public record, as should the nature of our concerns.

With that, I would invite Senator Tkachuk, who raised the question of privilege in the Senate originally, to give us his comments and advice with respect to the question.

Senator Tkachuk: Thank you Mr. Chairman. Honourable senators, I want to start by clarifying -- and I want to double check this -- my opinion that the quoted material was taken from the final report. Although the reporter may have believed the report was a draft report, the chairman and I believe it was the final report.

The final report contained a recommendation on capital gains that was stronger than the recommendation in the draft report. The reporter who wrote the story in the National Post did not quote our original recommendation on capital gains, which was in the draft report, that we would attempt to maintain a capital gains regime competitive with that of the United States, but rather, our final recommendation, which was a little stronger -- that it should be as low as or lower than that of the United States. Therefore, the reporter had a copy of the original, although he may have thought it was a draft, or maybe had been told that it was a draft.

I will not quote from what I stated on the Senate record in regard to the question of privilege.

I have just completed reading your report on the other two questions that were raised in the Debates of the Senate of yesterday relative to the Aboriginal Affairs Committee and the Transportation Committee.

I would point out that, at the time I raised the question of privilege, I was not necessarily asking for an investigation. When someone does something like this, we should at least state our displeasure at the perpetration of the act, because it affects us. That is what I did by raising this question.

The Chairman of the Standing Senate Committee on Banking Trade and Commerce, Senator Kolber, and I had agreed to a time of release and when he would table the report. We had coordinated a media plan. We had set the date for the following Tuesday of that week. We developed a mailing list. All of this was turned upside down and left us in a chaotic atmosphere because the substance of the report appeared in the newspaper. Not wishing to leave this hanging out there, Senator Kolber tabled the report in the chamber that afternoon.

That put our media plan totally off kilter. We had decided to do it the following Tuesday to allow us five days to get ourselves organized for interviews. With our schedules -- we are both busy and we live at the two ends of the country -- the matter of coordinating our schedules to allow ourselves time to talk to the media is no small effort.

All of this hurts the Senate. We believe that it was a good report. We had worked hard on it. Of course, the other media are not very happy with the fact that one newspaper got an exclusive. Even the Globe and Mail, which has a higher circulation and would have reached more people, did not have coverage. That also applies to The Canadian Press.

Whoever did this was dishonourable to his colleagues. This type of situation makes it very difficult for senators to do their work. We have enough problems without having to treat our colleagues like small children, but perhaps from time to time we must.

This raises two issues. There is the staff issue, which was raised by Senator Austin yesterday in his speech in the Senate chamber. Staff issues are, as you say, difficult to deal with when many of the staff are special contract people. However, I believe that there must be consequences for actions taken. Often, when consequences are stated, that exerts more influence on future actions than if they were left unstated. If members of the staff knew they would be fired, or that they would have a note on their file to the effect that they are "a snitch", it would affect their prospects for future work. I believe that would be important. A person who would do this has dishonoured his profession and his colleagues.

If we discover that it was a senator, I do not think that senator should serve on committees for a period of time, perhaps one year. Nothing would be more embarrassing than to have your colleagues know that you acted dishonourably toward them, and that you treated them with lack of respect.

Those are my views. I leave the matter in your capable hands, Mr. Chairman.

The Chairman: Thank you, Senator Tkachuk, for that very thoughtful presentation.

I would ask Senator Kolber, as Chair of the Banking Committee, whether he wishes to comment on the issue of in camera proceedings, the circulation of draft reports, or the way in which this particular final report was made available to senators and staff.

Senator Kolber: As far as I know, my office and senator Tkachuk's office were the only ones who had the final report. It is conceivable that I am wrong because the day before the leak a number of people asked for it, and I am not sure what happened in that regard.

The Chairman: Were you asked to release it to anyone?

Senator Kolber: I was not asked, but I think my staff was.

The Chairman: Could someone on your staff have authorized a release?

Senator Kolber: To be honest, if a member of the committee had asked me for it, I would have given it to them. I am not inclined to mistrust people in advance. We are all in this boat together. Everyone had seen the draft. We had meetings to go over the draft and make changes, so if someone had asked me for the final report, I would have given it to them. In retrospect, I would have been wrong, I suppose.

The Chairman: This committee has been considering the way in which in camera proceedings concerning reports, draft reports, or final but not-yet-released reports, should be handled by committees, and particularly by the chair of the committee.

Senator Kolber: How do you define "in camera"?

The Chairman: "In camera" means that the committee, by resolution or by agreement, made a determination to hold a meeting excluding the public. Those present are only senators, staff of the committee, and assistants who are given permission by the chair to attend. For example, at this meeting there are senators and staff, with no assistants.

Senator Kolber: We had a number of those.

The Chairman: We want to act under the existing rules, which means that the reference is to this committee, with this committee undertaking whatever inquiries or investigations it wishes to pursue as a result of this meeting. In the past we have heard from colleagues that a breach of privilege, particularly as it relates to the leak of a report of a committee, is taken as causing serious harm to the Senate. It introduces questions of the kind Senator Tkachuk, Senator Andreychuk, and Senator Bacon have raised. It deals with the openness and freedom of debate. It deals with trust among colleagues. It deals with the ability of the committee to continue to review questions of policy and deal with recommendations until the report is actually delivered. It deals with the integrity of giving the report to the public at the same time. It deals with questions that relate to the privilege of senators not to read the work of the Senate in the press before they read it or are made aware of it in the chamber. There are a number of historic questions that relate to privilege.

We could adopt the attitude that has been adopted by the House of Commons, which treats a question of privilege quite flexibly. They have no specific convention, as we have in our rules, to ask the speaker to make a prima facie finding of breach of privilege and send a question. I believe that the Speaker of the House of Commons will not make a finding of breach of privilege unless evidence is produced and accepted when someone is accused of a breach of privilege.

That is a very different practice from the one we have followed, which is historically much closer to the British and Australian practice.

Senator Kolber: How can you accuse someone if there is no procedure to investigate?

The Chairman: There is the conundrum.

Senator Kolber: The evidence is clear.

The Chairman: If a member makes an accusation in the House of Commons that someone has breached privilege, the speaker will ask for debate, and a defence, presumably, from said person, and make a finding. However, that is a departure from normal British parliamentary practice.

We follow the conventional practice which is that the question is investigated. That is the purpose of this discussion. Normally questions like this would be asked during an investigation into the question: To whom was your final, unreleased report circulated? Under the new era, if our fourth report is approved by the Senate, the Chair of the Banking Committee would call all the committee members and staff together and ask, member by member: Do you take responsibility for an unauthorized release? Are you aware of any questions relating to the unauthorized release? You were given three copies of this report. Where did those three copies go? Can you produce all three copies at this committee?

Senator Kolber: Do you actually expect an answer to that?

The Chairman: I am telling you what the outline of an investigation would be.

Senator Kolber: I appreciate that, and we have already done that.

The Chairman: Would you tell us the results of your investigation?

Senator Kolber: "Investigation" would be too grandiose a word for it, but I did get all the committee members together and asked who would like to take responsibility for the leak.No one is going to tell me.

The Chairman: No one did tell you?

Senator Kolber: That is correct.

The Chairman: Were all the members of your committee present?

Senator Kolber: It is possible that some were absent.

The Chairman: Do you recall who was absent?

Senator Kolber: No, I do not.

The Chairman: Would the clerk have a record of the attendance?

Senator Kolber: Yes.

The Chairman: What I am trying to determine is what questions colleagues think a standing committee should ask, what line of inquiry it should pursue, in an investigation. You may not get the answers; it may go nowhere; but under the current rules and under the rules as proposed there is an obligation of investigation if the Senate makes a reference of a prima facie question of privilege.

In the case of Senator Andreychuk and the Aboriginal Affairs Committee, which was our first question of privilege in some time, Senator Andreychuk said that she did not request an investigation. She wanted this committee to inquire into how to raise awareness of the costs to the Senate of a breach of privilege, not only amongst senators, but also amongst staff, both permanent and temporary. Our committee accepted that invitation. In our fourth report, we have our discussion of that.

Senator Kolber: Mr. Chairman, I am not aware that we are asking for an investigation.

The Chairman: When a question is raised and a prima facie finding is made, the question for reference to us is to investigate a breach of privilege. Otherwise, if you are not interested in pursuing it, do not raise it.

Senator Tkachuk: I raised it for investigation, not knowing these rules. It was done before the report. If reference was made to your committee, and if you wish to investigate, I have no problem with that. That is what I thought would happen.

If it is turned back to us without having a procedure fully developed as to what would happen, to proceed flying by the seat of our pants would be a dangerous precedent. There has to be procedure as to how an investigation is conducted. We are dealing with our colleagues here; we are dealing with our employees; we are dealing with contracted employees; we are dealing with the clerk's office. I know we have some lawyers on our committee, but without rules and guidelines as to how this would take place, I do not think that would be a good idea for us.

The Chairman: I take it the position that the Chair and Deputy Chair of the Banking Committee are taking now is that you wanted an opportunity to raise the question with colleagues, but you are not asking this committee to pursue an investigation?

Senator Tkachuk: That is correct, we are not necessarily asking for that.

The Chairman: You are not asking us to do that, but we might investigate in any event. However, you are not asking for an investigation.

Senator Tkachuk: That is correct. What I was getting at, and I believe Senator Andreychuk was as well, is that we should conduct investigations but when we do so, we have to know exactly where we are headed. If the committee is to conduct the investigation, then we must have a set of guidelines so that we know exactly what is expected of us. There is a beginning and there is an end: one, it does not go on forever; two, it does not become personal; and three, we do not go off into some irrelevant area, which senators are as capable as any other human being of doing.

If you ask us to conduct the investigation now, we will sit around the table and ask: "Who did it?" Everyone will deny having done it, and then we will not know where to go from there. It could be somewhat hazardous to proceed in that way.

The Chairman: I will make one more comment and then ask colleagues for their input.

The process of making a reference or raising a question of privilege is a complaint about the behaviour of someone.

Senator Tkachuk: Yes.

The Chairman: If the speaker finds there is a prima facie case, then the result of the reference is to send that complaint for investigation somewhere. Under our rules today, it is to this committee.

Under our current rules, it is up to this committee or, if new rules are adopted in the future, the standing committee affected, to investigate that complaint.

There is one other issue that you heard me address yesterday, and that is the question of seriousness. We will come to that in a few minutes.

Senator Andreychuk: I have a few comments and then one question of the chair.

When I first raised this matter, as you had quite rightly put it, this issue had not been raised in all the years that I have been here. Therefore, I thought that some awareness by the staff and senators was necessary and hoped that, as new senators and new staff came on board, they would be reminded about confidentiality and how important it is to us. I was quite satisfied that no investigation was conducted. However, then Senator Bacon raised a problem and now Senator Tkachuk has come forward with this problem.

At some point, we have to investigate and do something or we should not cry wolf. For example, I raised the first problem and the staff have noted it. That being so, The Standing Senate Committee on Foreign Affairs has just completed a confidential report and I was pleasantly surprised to be told that the clerk had instituted a procedure for releasing confidential reports in a draft form. I did not know whether it was Mr. O'Brien's office or whose office had sent out the documentation so that I knew I would receive copy number two of a certain draft. I knew it was coming to me. The clerk and the chair made it clear that it was a draft, and that it was confidential and not to be shared. I thought something good was coming out of what we had done. I would hope that all committees of the Senate will take note of that procedure.

My question is: under our present rules, I was mindful of how quickly I had to move to bring this matter to the attention of the Senate. However, is the committee required to undertake an investigation after the matter is raised in the Senate or must the matter be raised in committee first? The fourth report is not quite clear on that. In regard to the question I raised, I was told by the clerk that I had to give notice and then proceed to do certain things expeditiously.

The Chairman: I believe the way our report should be read, and it may not be as clear as I think it is, is that when an act which might constitute a breach of privilege, such as a leaked report to a newspaper, is brought to the attention of the chairman and/or members of the committee, it will become the obligation of the chair, the deputy chair or a member of the committee authorized by the committee to notify the Senate that such an act has taken place and an investigation is commenced. That has to be done forthwith.

Senator Andreychuk: How does that square with the rules where due diligence is necessary? I was told by Mr. O'Brien's predecessor that I had to move PDQ.

The Chairman: That part of the rules remains, but it is the obligation of the chair of the committee to act expeditiously. Having said that, any senator can also raise the question of privilege. The Speaker in that case would reserve the argument on the question of privilege until he has the report of the committee.

The committee can report that it has determined that X leaked the report and can say that it is serious for the following reasons and recommend that sanctions be applied. The matter would then be debated by the Senate and, if sanctions were the wish of the Senate, the question of sanctions would be sent to this committee.

Senator Andreychuk: My pointed question relates to the fact that, upon noting the leak, I was told that the matter had to be raised in the chamber expeditiously, and that, if I waited a couple of days to deliberate, it would be too late. I immediately went to the chair to discuss it, to note the breach, and I immediately made some handwritten notes, because I was already about six hours delayed and it was supposed to be done on the next day. I was told that if I had the information on one day, it had to be known to the chamber the next day.

Is it then the responsibility of the individual senator, when he or she notes the leak or the problem, to go to the chamber and to the chair?

The Chairman: No, under the recommended rules, it is the obligation of the committee to report the leak to the Senate. That is an obligation. However, any senator can also report it.

Senator Andreychuk: A senator would report it to the chair and the chair would then take it to the chamber?

The Chairman: That is right, but a senator can report it to the chamber as well.

Senator Andreychuk: As always, you are correct.

Senator Kolber: Could you tell us the situation as it stands now?

The Chairman: As it stands now, any senator can raise a question of privilege. If no senator mentions anything about, say, this leaked report, then nothing will happen in the chamber.

Senator Kolber: But we did and the matter went further. What happens now?

The Chairman: It was sent to this committee and we have this hearing to decide how we want to deal with the leaked report.

Senator Kolber: Right now the only possibility is that you conduct the investigation?

The Chairman: That is correct.

Senator Kroft: Having been involved in this process as a member of the Rules Committee and objectively listened to a problem raised by another committee member is one thing, but sitting here as a member of a committee which had this improper act inflicted upon it gives a sharper sense of the violation that has taken place.

To respond to a couple of remarks that were made, in particular by the chair and deputy chair of the committee, this is not purely a matter of interest to the Banking Committee. This constitutes an offence to the Senate and to all senators. Practically speaking, the committee members could say that they have brought the matter to the attention of the Senate but ask that the matter go no further. However the matter does go beyond that. It is not completely within the hands of the committee to make that decision. That is why this committee exists and that is why processes exist.

I attended the meeting where the chair gathered as many of the committee members as were available and advised the committee of the process. He then asked the basic question. Senator Kolber said: "Everyone denies it, so where does that get you? I suggest that gets us a very long way, given the assumption that all members were in attendance at that meeting or were subsequently asked the same question. There is then formally on the record, by every member of that committee, a denial, a statement. If, in the passage of time or after further investigation, it turns out that one of the members of the committee or a staff member who was asked the same question was the perpetrator, I think that the offence is compounded by the fact that there has been a formal denial which some might characterize as a `lie'." The very act of asking the question and then saying,"So what? We did not get an answer," changes the complexion of the situation because the record then shows that a question was asked if an investigation follows. Chances are, one way or another, accidentally or otherwise, we will find out who did it. Then that senator will face a very different situation, and the obligations of the Senate to deal with that senator will also be very different. That will involve an escalation of the process.

I do not think we should become completely frustrated by the difficulty in getting someone to say "I made a mistake," or "I left it on the bus," or "I passed it on to the media." There is value in every in step of this process. Those are the observations I have on this matter.

As a member of the committee to which this happened, I realize now, in a way that I did not in the previous two cases, that a cloud hangs over the head of every member of that committee and every staff member, attached to them until the matter is resolved. My inclination is not to say: "Let us not push it too far." I feel I have a stake in agreeing that we should deal with this matter.

Senator Kolber: May I add one comment? I have taken it a step further. I have spoken to the clerk, to Senator Tkachuk's assistant, and to my assistant, because they were the people who had the copies either to give out or not give out. In one case -- and I will not mention any names, because I do not have any proof -- we believe that one senator did get some copies and could, conceivably, have done something with them. I had my assistant tell his assistant that we believed he was the culprit. He came up to me and was visibly upset and said that he did not get the copy.

The Chairman: The assistant or the senator came up to you?

Senator Kolber: The senator. I am trying to find out more, but I have no facilities whatsoever to conduct an investigation. Although the intention of the Rules Committee is laudable, I do not know how you can acquire evidence unless you stumble onto it.

The Chairman: Basically, you acquire it the way you have gone about acquiring it.

Senator Kolber: I have tried, but everyone denies it.

The Chairman: As Senator Kroft says, the evidence is on the record; and lying to Parliament is the greatest crime of all.

Senator Kolber: Surely to God murder is worse.

The Chairman: That is a non-parliamentary crime.

Senator Kolber: Can someone give me some advice? How should we go about doing this?

The Chairman: We are discussing that here.

Senator Di Nino: I have three points to make. First, Senator Kolber raised the issue of sharing reports with other members of the committee. Obviously that practice should continue. If we have to be concerned about what we share with our colleagues, then we have a serious problem.

Second, the focus -- and I know that it has been qualified in particular by Senator Tkachuk -- seems to be on the senators as the offenders or the culprits. Many people sit in these rooms when we discuss various issues. A lot of staff in our offices receive mail about our activities and, as well, there are the printers who print our documents. We should be less accusatory towards our own colleagues. We should not, however, suggest that they are blameless, but let's not focus only on our colleagues as a potential source of the leak. That is a strong point I should like to make.

Third, we, as a committee, need to review the process and either clarify it or, if we find it wanting, establish a process that deals with the issue of privilege from the reporting -- because obviously there is some confusion, including the time frame and to whom -- to the attempt to find the offender, together with the applicable penalties, to the degree that either this committee or the Senate can deliver on them, for those who are found guilty.

Senator Kroft: I have a question on that. When talking about staff and in making your point about senators, what would be your assumption as to the responsibility of senators for their staff? I know there are parliamentary staff and committee staff, for whom, presumably, the chair is responsible. Is there any concept of responsibility by a senator for the conduct of his or her staff?

Senator Di Nino: Let me be a little clearer on what I meant by "staff", and then I will deal with your question specifically.

I do not want to point a finger, but we have interpreters, pages, table officers, table assistants, a gentleman or a lady who controls our microphones, the people who are printing our proceedings, translators, and so on. A huge number of people are involved in this issue. Yes, I do think that the senatorial staff should be subject to a higher degree of confidentiality.

I also believe that the senator should be held somewhat accountable, if only to take some of the blame for his or her staff if they were to be found to be the culprits. Yes, I think that we are bound by a higher degree of confidentiality and responsibility.

Senator Gauthier: Mr. Chairman, I think we are forgetting something that is quite new to all of us, and that is electronic communications. I have chaired committees in the House before, and I have written reports. There is a process that should be followed, especially today with computers. Communications transpire between those who write the report, and those who want the report to contain certain things. In the House of Commons, we numbered our pages and had a code so that, if anyone leaked it, we knew who did it. Every page had a code, a number that was easily identifiable.

We should keep in mind that with electronic communications today information can leak like a sieve. There must be more security in our process.

The Chairman: Thank you.

Senator Corbin: We used to have rubber stamps around this place. We could read the notification on completed reports, "Not for Publication" -- before tabling in the Senate or the House of Commons. We never see that now. I think that ought to be reinstated. The numbering of copies, to which Senator Andreychuk referred, is very important. I am not opposed to the suggestion that we impose a one-year bar on any senator who breaches these rules of trust amongst colleagues. In fact, while shaving this morning, I thought that the senator who does that ought to be barred for the remainder of the Parliamentary session.

In addition to the list invoked by Senator Di Nino, I would mention that we not only have our staff to consider, but we also have blue boxes for the recycling of paper as well as a recycling bin at the delivery entrance. There are a number of ways copies can be leaked.

I do want to make one affirmation. In my many years on the hill, it would be close to 32 years, I have yet to see staff breach this sort of rule. I have total and complete trust in staff, be they stenographers, messengers, or pages.

The Chairman: Permanent staff.

Senator Corbin: That is not where the problem usually lies. It is at a higher level. It begins with us, and the way we handle documents and our staff, senatorial staff, that is where one ought to look. Take those comments for what they are worth, but they are reflections.

Senator Kelleher: Mr. Chairman, I go back to my trade days when we experienced a number of leaks while we were preparing the "cab document," as they called it, for the trade agreement. Every other draft was being published in the paper. I remember that Joe Clark and I got pretty incensed about the whole situation. Needless to say, Brian Mulroney went ballistic, and we called in the RCMP.

The RCMP did not uncover a perpetrator, but the situation had a wonderful effect on everyone surrounded by the incident. The atmosphere calmed down after that, but the process served as a reminder to the staff and others that this is a "no-no." You cannot do it, and if you do it you are liable to get into real trouble.

Perhaps it is time for us to do that here because I gather from what Senator Andreychuk said, that this has never happened in the Senate. Perhaps it is something we have all forgotten about, and it may be a good thing if we are reminded of what can happen. When Revenue Canada successfully prosecutes a tax evasion case, they publicize the results. That has a very salutary effect on would-be cheaters in that particular community for at least 10 years. They publicize the information to achieve the desired fear effect.

That approach may not hurt in this instance. I don't believe the RCMP will find anything. It is a pretty clear-cut case here. However, if we do take some steps, it may keep everyone on their toes.

I might like to suggest that we consider calling in the RCMP, and have them check into this. Perhaps it would have a salutary effect on people.

The Chairman: Thank you, Senator Kelleher.

Senator Kolber: Mr. Chairman, does this committee have the right to subpoena witnesses?

The Chairman: Yes.

Senator Kolber: If we want to get serious about this, why do we not subpoena the reporter?

The Chairman: I would like to divide our discussion into two parts. We will discuss the general principles and then we will continue in camera for discussion of actual process.

Senator Kolber: All right.

Senator Tkachuk: I raised this on behalf of not only the committee members, but of all senators. This has happened to us before in our committee, to the point where we almost got used to it. Reports were leaked before we or the chamber saw them.

To me, this was the last straw. I wanted my colleagues, all honourable senators, to know how upset and how offended I was at this. I wanted them to know that the matter should be referred to this committee. I want to make it clear that it is not that I do not care whether it is being investigated. Maybe I said that, but it is not what I meant. The decision lies here. I do not feel comfortable that the issue should be investigated by members and staff of the Banking Committee. The investigators could be those who actually leaked the document. We could have staff working on it who actually gave it to the reporter. If this committee decides to investigate the matter, that would be very good. I will leave that decision to this committee. I will be happy that what I have done is just fine.

The Chairman: That is a very good concluding statement to our general discussion, unless some other colleague wishes to address us.

Senator Gauthier: I have a question of Senator Kolber. If I understood you, senator, you said that you suspect that it is a senator who leaked the document.

Senator Kolber: Yes.

Senator Gauthier: You confronted him, or someone told him that you thought he was guilty. You confronted him and he denied that he had leaked the document.

Senator Kolber: Yes.

Senator Gauthier: Being trustful, you said that you would drop the matter.

Senator Kolber: What was I to do? I did what I could. I could not say that he was a terrible liar? I did not know what to do next. I could be wrong, you know.

The Chairman: Unless Senator Gauthier wants to make another comment, I would like to continue in camera. We could discuss specifics for a few moments, namely, what action this committee should take. Is it agreed to proceed in camera?

Senator Di Nino: With or without translation?

The Chairman: We will keep the translation but we will not have a transcript.

The committee continued in camera.