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Speaker Milliken’s contempt ruling: Conservatives withheld information from Parliament

Posted on April 10, 2012

After the Auditor General found that the Conservative government had withheld information on the true cost of the F-35 aircraft from Parliament, let’s remember that this same government was found to be in contempt by Speaker Peter Milliken one year ago.

Here is the sequence of events:

My colleague Scott Brison moved a motion at the Finance committee, adopted on November 17, 2010, which specifically ordered the Government of Canada to provide the committee with electronic copies of the following:

· Five-year projections of total corporate profits before taxes and effective corporate tax rates (2010-11 to 2014-15);

· All documents that outline acquisition costs, lifecycle costs, and operational requirements associated with the F-35 program and prior programs (CF-18). Such documents include but are not limited to the Selected Acquisition Report (SAR) and the report of the US Department of Defence’s Joint Estimating Team (JET) both relating to the F-35;

That the committee also orders that the Government of Canada provide the committee with electronic copies of the following documents as they relate to each justice bill listed in Mr. Brison’s motion of October 6 as well as the following bills: S-2, An Act to amend the Criminal Code and other Acts, S-6, An Act to amend the Criminal Code and another Act, S-7, An Act to deter terrorism and to amend the State Immunity Act, S-9, An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime), S-10, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts:

· the incremental cost estimates broken down by Capital, Operations & Maintenance and Other categories

· the baseline departmental funding requirement excluding the impacts of the bills and Acts, broken down by Capital, Operations and Maintenance and Other categories;

· the total departmental Annual Reference Level (ARL), including all quasi-statutory and non-quasi-statutory items, including Capital, Operations and Maintenance and Other categories, including the incremental cost estimates;

· detailed cost accounting, analysis and projections, including assumptions, for each of the bills and Acts, conducted in accordance with the Treasury Board Guide to Costing;

When the answers to these questions were withheld, the committee chose to ultimately report this to the House of Commons.  Mr. Brison then raised a question of privilege in the House on February 7, 2011. Speaker Milliken ruled on the question of privilege raised by Mr. Brison on March 9, 2011. Here is the text of the Speaker’s ruling. The full text of Mr. Brison’s question of privilege follows.

The Speaker:

     I am now prepared to rule on the question of privilege raised on February 7, 2011, by the hon. member for Kings—Hants concerning the production of documents ordered by the Standing Committee on Finance.

     I would like to thank the hon. member for Kings—Hants for having raised this matter, as well as the hon. Parliamentary Secretary to the Government House Leader, and the members for Mississauga South, Windsor—Tecumseh and Notre-Dame-de-Grâce—Lachine for their interventions.

     The member for Kings—Hants explained that on November 17, 2010, the Standing Committee on Finance adopted a motion ordering the production of documents relating to corporate profits and taxes and the costs of various justice bills. The government, citing cabinet confidence as a reason, declined on three separate occasions to produce the information sought. The committee then presented its 10th report to the House on February 7, 2011, to draw the attention of the House to this matter.

     More specifically, the member for Kings—Hants contended that the refusal to provide the information constituted a breach of this House’s privileges and, moreover, the refusal to provide a reasonable explanation as to why the information was deemed to constitute a cabinet confidence was tantamount to contempt.

    There was a considerable lapse of time before the government formally responded to this question of privilege. Before it did so on February 17, 2011, in the Debates, at page 8324, the government House leader rose in the House to table “information on our government’s low-cost and tough-on-crime agenda as requested by certain members of Parliament”.

    Only after this, on February 28, 2011, did the parliamentary secretary to the government House leader returned to the House to present his case on the question of privilege. He argued that even though, in his view, the Standing Committee on Finance, in its 10th report, did not ask the House to order the production of the documents in question, the government, despite the absence of such a House order, had willingly tabled information which preserved “the confidentiality required around documents which are classified as cabinet confidences yet meets the request for specific data contained within the documents which by its nature is not a cabinet confidence”.

    Later the same day, the member for Kings—Hants made further arguments in the House to indicate his dissatisfaction with the government’s response. He stated that he believed the government had “failed both to provide all the documents or provide any reasonable explanation as to why these documents cannot be provided”.

    In interventions since that time, the government has maintained that the government has provided the information requested, implying that all of it has been provided.

    It should be noted that at the same time as interventions were being made on this question of privilege, the House was proceeding on a separate track on what was essentially the same matter.

     Thus, on February 17, 2011, the House was debating an opposition motion ordering the production of the same documents demanded by the Standing Committee on Finance. In a subsequent vote on the motion, held on February 28, 2011, the House adopted the motion, thus setting a deadline of March 7, 2011 for the production of the documents in question.

    Dealing first with the question of whether or not the House or its committees have the authority to order the production of documents, let me restate in part my April 27, 2010, ruling with respect to the production of documents related to Afghan detainees.

    At the time I stated, at page 2043 of the Debates: “—procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of government documents…Therefore, the Chair must conclude that it is perfectly within the existing privileges of the House to order production of the documents in question.”

    I also quoted House of Commons Procedure and Practice, second edition, at pages 978 and 979, which states: “The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the type of papers likely to be requested, the only prerequisite is that the papers exist—in hard copy or electronic format—and that they are located in Canada…. No statute or practice diminishes the fullness of the power rooted in the House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.”

    With respect to the power of committees to order the production of documents, Standing Order 108(1)(a) is clear, that they can “…send for persons, papers and records….” O’Brien and Bosc, at page 978, expands on this point: “The Standing Orders state that standing committees have the power to order the production of papers and records, another privilege rooted in the Constitution that is delegated by the House….”

    Thus, the power of committees of the House to order papers is indistinguishable from that of the House.

     With these well-established privileges and principles in mind, and in order to assess properly whether or not the order flowing from the Standing Committee on Finance has been complied with, I undertook a review of what was tabled. The Chair was helped in this by the committee’s order, which was quite explicit in the information it sought, even going so far as to list the bills for which information was required. While the Chair does not judge the quality of documents tabled in the House, it is clear from a cursory examination of the material tabled that, on its face, it does not provide all the information ordered by the committee.

     While the Chair finds this in and of itself unsettling, what is of greater concern is the absence of an explanation for the omissions. At the very least, based on the indisputable right of the committee to order these documents, this is required. Only then can the House determine whether the reasons given are sufficient or satisfactory. The need to provide reasons to the House is clear. On page 281 of Bourinot’s Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, it states: “But is must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses.”

    The Chair has reviewed the debates on this question, and while initially cabinet confidence was cited as a reason not to produce any of the documents, despite this, the government saw fit to partially comply with the committee order and a tabling of some material did eventually take place. Since then, no further reasons have been given as to why the balance of the documents should not or will not be tabled.

     It may be that valid reasons exist. That is not for the Chair to judge. A committee empowered to investigate the matter might, but the Chair is ill-equipped to do so. However, there is no doubt that an order to produce documents is not being fully complied with, and this is a serious matter that goes to the heart of the House’s undoubted role in holding the government to account.

     For these reasons, the Chair finds that there are sufficient grounds for finding a prima facie question of privilege in this matter.

    Before I invite the member for Kings—Hants to move his motion, however, the Chair wishes to explain the procedural parameters that govern such motions.

    House of Commons Procedure and Practice, second edition, at pages 146 and 147 states: “In cases where the motion is not known in advance, the Speaker may provide assistance to the Member if the terms of the proposed motion are substantially different from the matter originally raised. The Speaker would be reluctant to allow a matter as important as a privilege motion to fail on the ground of improper form. The terms of the motion have generally provided that the matter be referred to committee for study or have been amended to that effect.” 

    I hasten to add that the powers of the Speaker in these matters are robust and well known. In 1966, Mr. Speaker Lamoureux, having come to a finding of prima facie privilege on a matter ruled a number of motions out of order. As House of Commons Procedure and Practice, second edition, tells us at page 147, footnote 371, in doing so, Mr. Speaker Lamoureux “more than once pointed out that it was Canadian practice to refer such matters to committee for study and suggested that this should be the avenue pursued”.

     The Chair is of course aware of exceptions to this practice, but in most if not all of these cases, circumstances were such that a deviation from the normal practice was deemed acceptable, or there was a unanimous desire on the part of the House to proceed in that fashion.

     With this guidance in mind, I will soon recognize the hon. member for Kings—Hants so that he can propose his motion, but before he proceeds, I have a ruling on another matter, which I will deliver.

 ***

Here is the text of Mr. Brison’s initial question of privilege from February 7, 2011:

Hon. Scott Brison (Kings—Hants, Lib.):

    Mr. Speaker, I rise on a question of privilege in relation to the 10th report of the Standing Committee on Finance. 

    In our system of responsible government, the government must seek Parliament’s authority to spend public funds. Parliament, in turn, has an obligation, a responsibility to hold the government to account and to scrutinize the government’s books.

   Recently, this government impeded the work of the Standing Committee on Finance by hindering its attempts to better understand the federal government’s budget projections.

    As you know, Mr. Speaker, Standing Order 108 empowers committees to send for persons, papers and records. House of Commons Procedure and Practice, second edition, describes Parliament’s right to order the production of documents as a right that is “as old as Parliament itself”.

   On November 17, 2010, the Standing Committee on Finance passed a motion ordering the Government of Canada to provide the commitment with five-year projections of total corporate profits before taxes and effective corporate tax rates from the 2010-11 fiscal year until the 2014-15 fiscal year, inclusive.

    The November 17 motion also ordered the government to provide the committee with certain financial information pertaining to justice Bills C-4, C-5, C-16, C-17, C-21, C-22, C-23A, C-23B, C-39, C-48, C-50, C-51, C-52, S-2, S-6, S-7, S-9 and S-10.

    Among other things, the motion specifically requested: “detailed cost accounting, analysis and projections, including assumptions, for each of the bills and Acts, conducted in accordance with the Treasury Board Guide to Costing.”    

    The motion established a deadline of seven calendar days, which ended on November 24, 2010.

    On November 24, the Department of Finance replied to the committee with the following. I will read the department’s response in its entirety. It stated: “Projections of corporate profits before taxes and effective corporate income tax rates are a Cabinet confidence. As such, we are not in a position to provide these series to the Committee.”

    The government provided no further information to the committee before the deadline.

    On December 1, 2010, one full week after the deadline, the committee received a letter from the Department of Justice regarding projected costs of the justice bills. Again, I will read the department’s response in its entirety. It stated: “The issue of whether there are any costs associated with the implementation of any of the Government’s Justice bills is a matter of Cabinet confidence and, as such, the Government is not in a position to provide such information or documents.”

    On December 7, 2010, after the government had refused to provide the information ordered by the committee by the established deadline, I provided the committee with written notice for a motion by which, if passed, the committee would draw the attention of the House to what appeared to be a breach of its privileges.    

    On December 10, 2010, perhaps in response to the written notice I had written on December 7, the committee received an additional response from the Department of Finance.    

    In its response, the department stated: “To the best of its knowledge, the Department of Finance has determined that “series” or projections of corporate profits before taxes or the effective corporate income tax rates have never been previously disclosed. These projections are from a comprehensive economic and fiscal projection that constitutes a Cabinet confidence. As a result, the Department of Finance has not been in a position to provide these “series” to the Committee.”

    This response appeared somewhat dubious. For, if any member of the House or if any Canadian wishes to Google the phrase “corporate profits before taxes” and restrict their search to the domain of the Department of Finance’s website, he or she would get exactly two results: the HTML and PDF versions of “The Economic and Fiscal Update” from November 2005, in which they would find, on page 83, that the previous Liberal government had actually published projections of corporate profits before taxes from 2005 until 2010.

    At this time, I would like to seek unanimous consent to table page 83 of “The Economic and Fiscal Update” from November 2005.

The Speaker: Does the hon. member for Kings—Hants have the unanimous consent of the House to table this document?

    Some hon. members: Agreed.

    Some hon. members: No.

Hon. Scott Brison:

     Mr. Speaker, I believe Canadians will have to rely on technology to find that information by Googling corporate profits before taxes and simply restricting that search to Finance Canada.

    Not only have these projections been previously disclosed, they were disclosed by the Department of Finance itself under the previous Liberal government in November 2005.

    The Standing Committee on Finance has an unambiguous and unlimited right to access the information it has ordered from the government.

    As pointed out in the Speaker’s ruling of April 27, 2010: “—procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of government documents, even those related to national security.”

    In that ruling it was also noted that at page 281 of Bourinot’s Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, it states: “But it must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses.”

    O’Brien and Bosc, at page 83, refers to a list of types of contempt of Parliament. Included in that list is: “without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee;”

    In its replies to the committee, the government has said that it cannot provide the information the committee has ordered because of cabinet confidence. On what grounds is this information covered by cabinet confidence? On this matter, the government has been completely silent. No cogent reason or reasonable excuse has been provided. Instead, the committee has been left guessing.

    What we do know is that in 2005, the previous Liberal government recognized that the projections of corporate profits before taxes were not covered by cabinet confidence. Such projections are not considered a cabinet confidence when, as is the case with Finance Canada’s revenue model, these projections are used by the department in a manner that is not exclusively related to cabinet operations.

    Therefore, what has changed between 2005 and today? On what grounds is the government claiming that these projections are now a cabinet confidence where before they were not?

    With respect to the costs of the justice bills, we know that due diligence would have required that cabinet consider the cost implications of each of these bills before making a decision to proceed with each bill. Particularly today with a record $56 billion deficit, we would hope the government would carry on this type of due diligence. 

    We know that under normal practice, an analysis of the cost implications of each justice bill would have been included with a memorandum to cabinet prepared for each bill.  

    Section 69 of the Access to Information Act tells us that such analysis and background information is not a cabinet confidence if the cabinet decision to which the analysis relates has been made public.

    Furthermore, in the Ethyl case, the Federal Court has been clear. This analysis and background information can be severed from a protected document and disclosed.

     Legislation goes to cabinet for a decision before it is introduced to Parliament. The very act of introducing government legislation in Parliament is a public declaration of cabinet’s decision to support that legislation. Therefore, the cost estimates for the justice legislation are no longer a matter of cabinet confidence.

     Page 137 of O’Brien and Bosc states from a report of the Standing Committee on Privileges and Elections in 1991: “It is well-established that Parliament has the right to order any and all documents to be laid before it which it believes are necessary for its information….The power to call for persons, papers and records is absolute, but it is seldom exercised without consideration of the public interest.”

     The previous government recognized that it was in the public interest to publish projections of corporate profits before taxes. How would bringing these projections under cabinet confidence serve the public interest? The fact is that the public interest is not served by this change in the government’s application of cabinet confidence.

    In his testimony before the Standing Committee on Government Operations and Estimates on February 1, 2011, the Parliamentary Budget Officer offered recent examples of where the public interest was served by the government’s publishing details on additional planned resources for government programs and spending restraints before Parliament was asked to provide the financial authorities. 

    The Parliamentary Budget Officer went on to note: “This raises the question as to why the application of cabinet confidence with respect to restraint measures appears to have changed in a relatively short period of time.”

    Withholding the requested information from the committee clearly does not serve the public interest. In fact, withholding this information impedes Parliament’s ability to fulfill its duty, responsibility to scrutinize the estimates, and to hold the government to account.    

    With that in mind, the government’s claim that the requested information cannot be provided to the committee is without merit. Furthermore, the government’s refusal to provide the information constitutes a breach of the House’s privilege.    

    The government’s refusal to provide a reasonable excuse as to why this information should be withheld also constitutes a contempt of Parliament.    

    Mr. Speaker, I would like to close by quoting from your April 27, 2010 ruling on the question of privilege surrounding the provision of information to the Special Committee on the Canadian Mission in Afghanistan. You said: “In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and in fact an obligation.”

    In this case the House of Commons’ efforts to hold the government to account have been unduly frustrated by the government itself.    

    I am therefore prepared to move an appropriate motion if, Mr. Speaker, you find a prima facie question of contempt.

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