“WE” Don’t Need Lawyers at Parliamentary Committees

The Kielburger brothers, as leaders of the WE charity, were summoned to appear before the Ethics Standing Committee of the House of Commons to provide testimony on what has become known as the WE Charity Scandal. The matter involves a contract with the government to oversee a student volunteer grant program.  It is alleged that the Prime Minister’s family had close ties to the charity at the time that the contract was awarded.

Before the summons was issued, the brothers’ lawyers indicated that the brothers would not appear even if summoned.  The reason given was that the brothers were under investigation by the police and revenue agencies in Canada and the United States, possibly in response to a letter by a member of the committee to such agencies urging them to conduct the investigations.  The Committee was properly upset.  They condemned the response as contemptuous, and issued the summons indicating that failure to appear could result in a finding of contempt of Parliament, with the ultimate consequence being imprisonment.  It would now seem that the brothers’ lawyers are prepared to have their clients appear so long as they can appear with counsel.

The condition of allowing witnesses to appear with counsel is one, that if accepted by the Committee, could set a dangerous and unwarranted precedent.  Those who are insisting on the condition, and the parliamentarians who are tempted to allow it, all miss the point, purpose, and precedents of parliamentary committees.

Parliamentary committee proceedings are not legal proceedings. Nor should they become such. They are parliamentary proceedings.  The function of committees is to inquire into public business and concerns as part of advancing a public purpose including the holding of government to account.  Their purpose is not to judge individuals, but to examine the role played by government officials and Ministers, both in decision and policy making. Included in these inquiries can be an examination of the ethical behaviour of the government officials in the carrying out their functions.  There is no doubt that at times this may involve calling individuals as witnesses to understand their conduct in relationship to the government and the influence they may have had on the decisions of the government.  But the focus of the inquiry must always remain focused on the government and Ministers.  The focus should not be on the correctness of the behaviour of non-government actors.  The propriety or legality of behaviours of individuals is the proper domain of administrative systems, such as revenue agencies, and justice systems, being the police and the courts.  They, not Parliament, are constitutionally charged with deciding the consequences for non-governmental actors.

Although a difficult needle to thread, it is important that committees understand the limits of their inquiries and the relative responsibilities of the other actors within the Canadian constitutional structure.  This does not mean that Committees should in any way shirk their responsibilities.  It means that they should act responsibility and with respect for the constitutional roles of others. This is why there are various self-constraints on parliamentarians such as the sub judice convention that is applied to avoid discussion on matters before the courts, and why committees will sit in camera when they discuss information that could be used improperly by others, including business competitors and the police. If committees go too far, there may be political, public and legal consequences.  Parliamentarians can make the job of investigators and the courts quite challenging.  Investigators may have a difficult time tracking the same facts when they do not have access to parliamentary material, and public opinion can make judicial proceedings almost impossible where the public and parliamentarians seem to have pre-judged the matter.

There are undoubtedly times when the facts being discussed and considered by a parliamentary committee will overlap with the subject of other proper legal and administrative investigations. This is when the temptation for lawyers to become involved is the greatest.  They are attuned to think of concepts such as double jeopardy and their client’s right to remain silent.  They also are concerned that what their clients may say, or what is insinuated by committee members, might be used against them in investigations and legal proceedings.  They might point to various Charter provisions that give rights to individuals in such circumstances.  The lawyers will argue, that their clients need to have counsel present to protect their legal interests and to insure that the committee does not put them in such legal jeopardy.  What the lawyers fail to recognize is that parliamentary proceedings are not legal proceedings, so questions of jurisdiction and scope are not hard and fast, nor justiciable.  More importantly they fail to recognize the absolute constitutional — read legal with a capital “L”– protection their clients enjoy from any legal or administrative consequences for what they say or present before the committee.  Their clients, as participants in a parliamentary proceeding have the same privileges as Members.  What they say is fully protected by parliamentary privilege, a constitutional privilege that must be respected by the police, the courts and administrative agencies.

The main pillar on which Parliament stands is the Bill of Rights, 1689, in particular Article 9 that provides “that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”  This section is not only a protection of the freedom of speech.  It is also a constitutional prohibition on the use of the debates and proceedings being used against an individual in any court or anywhere else outside of Parliament. This includes use of proceedings by the police or any agency as evidence or as the basis for any inquiry.  Witnesses do not need lawyers to protect them.  Witnesses have both the constitution and Parliament at their back.  If the lawyers are looking from whom they need to protect their clients, it is the courts, the police and government agencies.  And the tool they have is parliamentary privilege and the constitution.

For those who think that this is point is merely theoretical and political, they need only remember the dual track inquiries undertaken during the Sponsorship “scandal”.  The Public Accounts Committee was investigating the same facts as the Gomery Commission.  There were times when it appeared that the two inquiries were on a collision course, but because of the privileges afforded witnesses before the parliamentary committee the testimony before the committee could not be used before the Gomery Commission.  After seeking the permission of the House of Commons to waive privilege, which was denied, Justice Gomery ruled that contradictory testimony could not be introduced or used before the Commission.  This decision was upheld in the courts.   In the case of investigations, there was the case of Barbara George, who testified before a committee.  Based on her testimony and participation before a committee, the RCMP initiated disciplinary action against her.  On judicial review, the courts, relying on parliamentary privilege, quashed the disciplinary proceeding because the investigation that led it was based on the facts and evidence before a parliamentary committee.  In short, testimony before a committee cannot be used before a court. Nor can it be used as the basis for an inquiry that would lead to legal or administrative consequences.

It is this foundational principle that not only protects witnesses, but that compels them to answer all questions put to them by the committee.  Since there can be no legal consequences, there is no legal basis on which to refuse to answer questions.  Since there is no legal basis for not answering there is no need for lawyers.   Parliament is entitled to ask whatever questions it wants answered, and witnesses should have no fear of any consequences for their answers.  The constitution and Parliament will protect them.  That is the law.  Both Parliament and the legal system depend on it.

Parliaments and the Pandemic Reviewed

My review of Parliaments and the Pandemic, a major study by the UK Study of Parliament Group has been posted on the UK Constitutional Law B Blog S. Chaplin, ‘Review of Parliaments and the Pandemic’, U.K. Const. L. Blog (8th March 2021) (available at https://ukconstitutionallaw.org/ .  The study is a major undertaking on the effects of all aspect of the operation of Parliament and should be read as a guide for all who are working on how to address the pandemic’s effects on Parliament now and in the immediate future.