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Canadian conflict over contempt of Parliament and national security creates constitutional conundrum

9 Jul 2021
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Canadian flag waving in front of the Parliament Building on Parliament Hill in Ottawa. © Jason Hafso

Can the government rely on provisions in national security legislation to refuse to provide unredacted documents to a House of Commons committee when ordered to do so by a resolution of the House? Should, or can, resolution of this question be made by the courts, or only within the House? In a current case, Canada’s House and courts face these questions.

Steven Chaplin, Former Senior Counsel, Canadian House of Commons
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Former Senior Counsel, Canadian House of Commons

Steven Chaplin

Steven Chaplin
Former Senior Counsel, Canadian House of Commons

Steven Chaplin has been a member of the Ontario bar since 1987. He has an LLM (Osgoode) along with a BA (Queen’s) and LLB (Queen’s); has practised in the federal public sector as well as in private practice in Ottawa; and is now an Adjunct Professor at the University of Ottawa, Common Law Section, and a Fellow of the Ottawa Public Law Centre, while continuing to practise as a consultant to various legislative assemblies and parliamentary entities. From 2002 to 2017 he was employed as Senior Counsel for the Canadian House of Commons, in which position he was responsible for advising the House of Commons, its Speaker, Members, Committees and Administration on numerous administrative and constitutional law questions, particularly in the area of parliamentary privilege. He has appeared before the Supreme Court, the Federal Court, and the Federal Court of Appeal in cases relating to the protection of the constitutional independence of the House of Commons. He is an active member of the Association of Parliamentary Counsel of Canada, a Deputy Executive Editor of the Journal of Parliamentary and Political Law, and blogs at www.lexparl.com.

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As the case currently stands, Canada’s government has been ordered by the House of Commons to provide the House with unredacted documents. The government is continuing to refuse to table the documents at issue and has asked the courts to rule that it does not have to do so.

If successful, the government’s full-frontal legal assault on the House of Commons could have precedent-setting consequences for the relationship between the House and the government, and for the Westminster system of government in Canada – and potentially throughout the Commonwealth.

Instead of allowing for the resolution of disputes between the government and the House to be resolved in Parliament, as has been the constitutional paradigm to date, the norm may become to involve the courts. This would compromise the independence of Parliament guaranteed by Article 9 of the Bill of Rights, 1689.

The background to the current constitutional stand-off was the employment of two scientists with Chinese backgrounds in a Canadian government laboratory researching infectious disease. In their employment, the scientists had access to various highly infectious and deadly pathogens and viruses. In January 2021, their employment was suddenly terminated. Although not specifically alleged or proven, it is believed that the reason for the terminations was that the scientists were providing information, or potentially the pathogens, to the Chinese state.

special House of Commons Committee examining the deteriorating Sino-Canadian relationship requested in March that the Public Health Agency of Canada (PHAC), a department presided over by the Minister of Health, provide the Committee with all documents relating to the scientists’ employment and its termination. In May, the President of PHAC, Iain Stewart, appeared before the Committee and provided it with redated versions of documents, citing national security as the reason for the redactions. The Committee pressed the issue, and eventually reported the matter to the House. On 2 June, the House then ordered the government to provide the Committee with unredacted documents.

Under the House’s Order, to protect national security the Law Clerk and Parliamentary Counsel (the Canadian equivalent of Speaker’s Counsel) would review the documents for national security concerns and advise the Committee accordingly. However, the government continued to refuse to provide the Committee on Canada-China Relations with unredacted documents.

The government proposed that the matter be referred to the National Security and Intelligence Committee of Parliamentarians (NSICOP). The NSICOP was established by statute (the National Security and Intelligence Committee of Parliamentarians Act) to review the framework and policy for national security, activities of government departments relating to national security, and any matter relating to national security referred to it by a Minister. Minsters can always withhold any information if they consider that its review would be injurious to national security. While the NSICOP is composed of Members of Parliament and Senators, it was established by the government as a body outside of Parliament, and as a part of the executive administration. The Committee meets in camera and reports to the Prime Minister, not Parliament. This is the case even when there is a dispute over any matter within the Committee. The Prime Minister has the final say on what, if anything, will be disseminated further. Importantly for parliamentary accountability, Committee members are not permitted to discuss any Committee business outside of the Committee; and if they disclose any information to Parliament, parliamentary privilege will not apply to protect them from liability for disclosure. However, nothing in the Act displaces the authority of Parliament to inquire into matters of national security, or to obtain information it requires even if subject to national security concerns.

In the face of the government’s attempt to use the NSICOP, the House of Commons was not prepared to have its business derailed by a process that was outside of the House, in which it would not necessarily receive a report, and which would remain under the absolute control of the Prime Minister. In his ruling on 16 June that the government had breached the privileges of the House, the Speaker made it clear that the process and business of the NSICOP exist outside of Parliament. As a result, under a motion agreed on 17 June that held PHAC – effectively the government – in contempt, the House ordered the President of PHAC to appear at the bar of the House to be admonished, and to deliver up the documents, unredacted. He appeared on 21 June and was admonished, but did not produce the documents. The House adjourned for the summer before any further action was taken.

On the same day as the PHAC President’s admonishment by the House, the government filed an application in the Federal Court asking the court to determine what documents can, or should, be produced to the House with, or without, redactions.

The Canada Evidence Act provides that, where the government is of the opinion that evidence is covered by national security, it (or a party to a proceeding) can request the Federal Court to review the matter and determine how such evidence is to be handled, including determining and ordering redactions (or summaries) that balance national security with the needs of the proceeding.

The Act defines “proceeding” as “a proceeding before a court, person or body with jurisdiction to compel the production of information”. The Act is silent on whether it applies to parliamentary proceedings. The government says that the 2 June Order of the House is an attempt to compel information for the proceeding. The Speaker of the House has indicated that the House will vigorously oppose the application in order to protect its privileges, powers, and immunities.

Although neither the Speaker nor his counsel has formally or publicly indicated the basis for the House’s opposition, earlier Speaker’s rulings and court cases would indicate that the House has a strong case that the courts have no jurisdiction to consider the government’s application. Based on the Speakers’ rulings and precedents (such as the review of documents related to an inquiry into treatment of Afghan detainees by Canadian military personnel, where the House and government were required to find ways to reconcile similar concerns), it is evident that the position of the House is that the question of how to balance the constitutional function of the House to hold the government to account with national security must, and can, remain with the House.

In rulings throughout the House proceedings, and particularly in finding that the government had breached the privileges of the House by defying the House’s Order to produce unredacted documents, Speaker Rota made it clear that there are no actions or decisions for which the government is not accountable to the House of Commons, including decisions based on national security. In his ruling, he referenced a 2010 decision of the House on the same question. Speaker Rota stated:

“While confirming that the House had, at times, agreed to abstain from requiring documents for reasons of national security or international relations among others, Speaker Milliken took care to clarify that it was quite different in an instance where the House expressed its will by adopting an explicit order.

In his ruling, Speaker Milliken, at page 2042 of Debates, responded as follows to the government’s objections:

‘To accept such a notion would completely undermine the importance of the role of parliamentarians in holding the government to account.

Before us are issues that question the very foundations upon which our parliamentary system is built. 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.’

House of Commons Procedure and Practice, third edition, adds this at page 985:

‘No statute or practice diminishes the fullness of that power rooted in 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…’”

While the House is entitled to obtain all the information it decides it needs to hold the government to account, the House cannot lose sight of the views of the government that release of the information could be injurious to national security. One must presume that the House, including the ‘Loyal Opposition’, has no interest in impairing national security or endangering individuals whose identities may be revealed as part of the security apparatus. This mutual interest should lead to the development of a process that allows the House to carry out its consitutional function while ensuring that national security is not compromised.

In the context of Westminster-style democratic government, when dealing with parliamentary oversight that involves national security, the responsibility – if the House insists on receiving sensitive information – is shared.

A process has been worked out for court proceedings (in the Canada Evidence Act), where ultimately the courts decide what is needed for their purposes while protecting national security. A process needs to be worked out similarly between the government and the House to allow the House the same ability to carry out its full constitutional functions while protecting national security.

Having the courts intervene, as proposed by the government’s application in the Federal Court, is not an option. The application is clearly precluded by Article 9 of the Bill of Rights, 1689, which provides that a proceeding in Parliament ought not to be impeached or questioned in court. Article 9 not only allows for free speech; it is also a constitutional limit on the jurisdiction of the courts to preclude judicial interference in the business of the House.

It is difficult to see how the court could examine and rule on the dispute between the government and the House of Commons without questioning or impeaching a proceeding in Parliament.

The House ordered that the documents be tabled without redaction. Any decision of the court that found to the contrary would impeach or question the proceeding that led to the Order. And any attempt by the courts to balance the interests involved would constitute the courts becoming involved in ascertaining, and thereby questioning, the needs of the House and why the House wants the documents.

The privileges of the House of Commons, including those asserted in Article 9, form part of the Canadian Constitution. In at least three decisions of the Supreme Court of Canada, the Court found that, given their status as constitutional, the privileges of the House of Commons have equal status to the written provisions of the Constitution, including the Charter of Rights and Freedoms. (The three cases are: New Brunswick Broadcasting v. AG Canada [1996]; Harvey v. AG (New Brunswick) [1996]; Canada (House of Commons) v. Vaid [2005].)

The implications of this are clear. Mere statutes must give way to constitutional principles and provisions. Since privileges belong to the House, they may be waived; but in doing so there must be a clear provision in statute that abrogates the privilege, or there must be a clear intention demonstrated.

In the present case no such intention can be shown. The statutory provisions relied on by the government do not specifically include parliamentary proceedings and are found in a statute directed at the courts. In addition, since the enactment of the Canada Evidence Act provisions, there are now two examples, one against a Conservative government and the other a Liberal government, where the House has asserted its rights and privileges to have a full inquiry even when national security has been raised.

Involving the courts in the mix just makes the constitutional problem more difficult. National security is not the only statutory-based argument that witnesses and government officials use to withhold information from the House. There are statutes that protect privacy, business information, tax information, and various non-disclosure agreements. If the courts are seen as the arbiters of statutes in all contexts, including parliamentary business, there would be no end to the attempts by governments and individuals to delay or avoid parliamentary orders and summons as the courts work their way through all such issues.

In answer to those who would argue, as the government does, that statute law should apply to the House just like any other entity, the question of the application of statutes within the parliamentary context has been unequivocally dealt with by the courts. They accept that in the case of Parliament, it is Parliament and not the courts that is responsible for applying the statute.

In 1884 (in Bradlaugh v. Gossett), the Court of Queens Bench in the UK clearly stated that:

It seems to follow that the House of Commons has the exclusive power of interpreting the statute so far as the regulation of its own proceedings within its own walls is concerned, and that even if that interpretation should be erroneous this court has no power to interfere with it, directly or indirectly.

This statement of law has been cited with approval by a number of courts in Canada. As recently as 2005, the Supreme Court affirmed the principles of the 1884 decision (with the emphasis underlined by the Supreme Court in the original):

Historically, the legislative source of some privileges (e.g., Art. 9 of the Bill of Rights of 1689) did not diminish the jurisdictional immunity they attracted. In Bradlaugh v. Gossett (1884), 12 Q.B.D. 271, Stephen J. stated, at p. 278:

I think that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute-law which has relation to its own internal proceedings…

What these cases make clear is not that the statutes and the principles in the statutes do not apply within Parliament. It is just that the House of Commons and the Senate, and not the courts, are responsible for interpreting and applying them in such a manner as to allow the Houses to carry out their business. In the present circumstances, this can best be accomplished by the government working with the House to establish a process that allows for the House to carry out its oversight function, while ensuring that national security remains protected.

It may be that at the end of the day the government will continue to refuse to produce documents. In the same way that the government cannot use the courts to withhold documents, the House cannot go to court to compel the government to produce them, or to order witnesses to attend proceedings. It could also invite disobedience of witnesses, requiring the House to either drop inquiries or involve the courts to compel attendance or evidence. Allowing, or requiring, the government and the House to resolve their differences in the courts would not only be contrary to the constitutional principles of Article 9, but “would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper” (Canada (House of Commons) v. Vaid [2005]). In short, the courts have no business intervening one way or the other.

That the subject of national security is a difficult area must be acknowledged. But the fact that the government’s activities and documents involve national security cannot be enough, in itself, to upset the constitutional architecture that supports the relationship between the House and the government that places Parliament and government accountability at the centre of the Westminster system of government.

This does not mean that there is no way to resolve the impasse. It is not to be forgotten that the House of Commons has the ultimate authority over the government. If the House believes that the issue is of fundamental importance, it has the power to censure Ministers, suspend Ministers from sitting, expel them from the House, or vote non-confidence in the government, thereby triggering a general election, where voters ultimately will decide the fate of a government. That is the genius of the Westminster system of government.

On 15 August, Canada’s 43rd Parliament was dissolved, and writs were issued for a General Election on 20 September. As result, on 17 August, the government withdrew the court application discussed in this blogpost, presumably on the basis that the question was now moot.

Whether or not the next House of Commons will pick up the issue will depend on the results of the election. The Liberals, who now form the government, have not indicated what they will do. The Conservatives have indicated that they will make certain of the documents “public”. If there is another Liberal minority government it is possible that the matter could be revived in the House of Commons and the issue might yet be resolved within the House, or if the positions remain entrenched a new application to the courts might be contemplated.

Chaplin, S., Canadian conflict over contempt of Parliament and national security creates constitutional conundrum, (London: Hansard Society), 9 July 2021