Extraordinary Proceedings Must Still Respect the Plight of Witnesses

The House of Commons has been directed to conduct an extraordinary proceeding on Wednesday April 17.  Such a proceeding has not been used or contemplated in over a century.  A private individual, who has been found in contempt by the House for failing to answer questions before a parliamentary committee, will be called before the bar of the House to be admonished, and to be subject to questioning by MPs.  The basis for the finding and the process to be followed is found in the following motion of the House, adopted April 8.

[T] The Houe having considered the unanimous views of he Standing Committee on Government Operations and Estimates, expresses in its 17th report, find Kristian Firth to be in contempt for his refusal to answer certain questions and for prevaricating in his answers to other questions and accordingly, order him to attend at the bar of the House, at the expiry of time provided for Oral Questions on Wednesday, April 17, 2024, for the purposes of :

  • Receiving an admonishment delivered by the Speaker,
  • Providing responses to the questions referred to in the 17th
  • Responding to supplementary questions arising from his responses to the questions referred to in the 17th report

Provided that

  • During Mr. Firth’s attendance at the bar for the purposes of responding to questions, which shall be asked by Members, with questions and answers being addressed through the Speaker,
    1. 10 minutes be allocated to each recognized party for the first and second rounds in the following order: Liberal Party, Conservative Party, Bloc Quebecois and New Democratic Party,
    2. During the third round, five minutes be allocated to each of the recognized parties with an additional five-minute period for the Green Party,
    3. Within each of the 10 or five-minute period of questioning, each party may allocate time to one or more of its members,
    4. In the case of questions and answers Mr. Firth’s answers shall approximately reflect the time taken by the question,
  • At the expiry of time provided herein, and after Mr. Firth has bee excused from further attendance, the House shall resume consideration of the usual business of the House for a Wednesday,
  • It be an instruction to the Standing Committee on Government Operations and Estimates to consider Mr. Firth’s testimony at the bar of the House and, if necessary, recommend further action.

This process, while the logical progression through the parliamentary process, raises numerous questions and challenges for a Westminster Parliament.

In this particular instance, a private citizen having dealings with the government, has refused to answer questions before a parliamentary committee investigating the processes whereby the individual’s company was awarded sizable government contracts.   The process was also the subject of a report of the Auditor General who has also sent their report to the RCMP for further investigation.  At the committee hearings, the individual refused to answer certain questions on the basis that he might be the target of the police investigation.  In short, he is claiming that his answers might incriminate him.   In a letter to the committee, Mr. Firth not only shares his concerns relating to the potential risk of a criminal investigation based on his answers but also raises concerns relating to the “lack of fairness” and the politicization of the process wherein his reputation is at risk.

As the proposed proceeding replicates the committee process, but with greater publicity and higher political stakes, the concerns raised remain unresolved.   While it can be argued that Mr. Firth could have avoided this raising of the stakes by answering the questions in the first place, and that the whole point of the escalation from committee to the House is one that is intended to pressure the witness by increasing the consequences, however, the underlying issues of the respect for the independence and separation of Parliament from the administration of justice, and the protection of otherwise protected rights of private individuals who participate in parliamentary proceedings.

There can be no argument that the House of Commons and its committees are entitled to all information they request.  Witnesses are required to provide all such requested information, and there are no specific legal or constitutional bases on which information can be withheld.  At the same time, all information provided to the House, and all witnesses who appear before the House are protected by parliamentary privilege.

However, the application of the protections of parliamentary privilege is not always easy or evident, particularly when it is applied to and by those outside of Parliament and the government.  It is not easily understood that information provided in a parliamentary proceeding, for use by the committee and the House, is not considered to have been publicly disclosed.   Evidence and information provided by witness to a committee becomes the property of Parliament not the public. It is not information that is publicly available in the legal sense.  At the same time, there is an expectation that the business of the House of Commons, particularly with respect to its function of holding the government to account, will be transparent and fulsome.  It is the role of the House to explore and expose government operations so that the public is able to carry out its function of judging the actions of the government and the opposition at the next elections.

The balance of interests between the House and the government, though partisan and adversarial, most often only involves those within the government providing information to the House.  However, there are many occasions when the work of the House requires assistance from individuals, such stakeholders and those seeking to inform the House of a particular viewpoint, or in order to bring matters to the attention of the House. At other times a committee may call witnesses to help them better understand the operations of the government.  In some cases, witnesses are reluctant to attend and need to be compelled.  However, in all cases the only constitutional purpose of the committee or House proceeding is to hold the government to account, and witnesses are there to assist (even if reluctantly) in these inquiries.   Since the role of the committee is to hold the government to account, not the private individual, there may be times when private interests of the individual, that are not the proper business of the House to inquire into ,  are put at risk and therefore steps are taken to limit the impact that the inquiry may have on those interests. In all cases, the greater the interest at stake the greater the care of the House to protect it ought to be.  The risk of criminal prosecution is one of the greatest.

There are three competing principles relating to the relationship between Parliament, individuals appearing as witnesses and those responsible for the administration of justice.   First, it is the role of Parliament to hold the government to account.  It is not the role of Parliament to hold individuals accountable since their actions are not governmental.  However, how the government interacts with individuals is subject to parliamentary accountability.

Second, the participation of any witness before a parliamentary committee is protected by parliamentary privilege.  This includes protection from information provided in a parliamentary proceeding being used in any proceeding outside of parliament, particularly criminal or civil proceedings.  Since such evidence is privileged, it cannot form the basis for, or be used as part of, an investigation that would have consequences for the witness.

This is related to the third principle. In all other instances where an individual is compelled to give testimony (i.e. in criminal, civil, or administrative proceedings) the individual has constitutional protections found in the Charter of Rights and Freedoms¸ and the common law, from having incriminating testimony used against them in any other proceeding.  Since the Charter does not apply to parliamentary proceedings as such, the protections of parliamentary privilege, which are also rooted in the Constitution¸ have the same force and effect the Charter protections.  It is this protection that allows Parliament to compel full answers without fear of them being put to further, or other, use.

It is therefore incumbent on the House of Commons to make it clear to the witness and to those who might be tempted to use information gleaned from parliamentary proceedings that the House of Commons will take all necessary steps, including going before a court on behalf of a witness, in order to protect its privileges and the testimony of witnesses from any use by authorities outside of Parliament.  This includes protecting the information from use by the police for investigatory purposes.  If the House is not prepared take such steps, then the witness has no protection.  Instead of protecting the rights of citizens, it would be exposing them to a risk that would not occur in any other circumstances.

The House of Commons should not allow itself to become an investigative body in aid of the police, who are a direct agent of the Crown.   The police and the Crown exercise state powers that are properly constrained by the Constitution.  As part of the “Crown” police and crown attorneys are accountable to Parliament through the appropriate ministerial accountability frameworks for such state actors.   This accountability requires the separation and independence of the House from the police and their investigations.

In addition, a degree of sensitivity by Parliament is required so as not to put any current or future investigations at risk by placing the police in a constitutionally untenable position.  In a case where information from a proceeding in Parliament is used in a manner that jeopardizes a person, the police will have violated the privileges of Parliament.  Since parliamentary privileges are constitutional in nature, the use of such evidence is unconstitutional and could taint any related investigation and subsequent prosecution.

That the House ought to proceed with a degree of caution in order to protect the rights of individuals in the context of legal risk is not an unknown concept.  For example, the House respects the convention of sub judice whereby the House will avoid directly discussing matters that are before the courts so as to ensure that the interests of the parties before the courts are not influenced by proceedings in Parliament, including perceived political and public pressure.  The underlying rationale is that each branch of the state must be free to operate without interference from or confusion with the others.   In cases of police investigations and the potential risks that flow both from the application of privilege outlined above, and when an individual would have rights in all other compelled testimony environments, the House might want to consider how to exercise similar restraint.

From a purely legal and constitutional perspective the House of Commons is not compelled or constrained to follow any particular procedure, or to strictly adhere to any legal or constitutional norms or limits, other than the limits of its constitutional functions.  Its powers are broad and not subject to judicial review or scrutiny.  At the same time, the House and its committees do not carry out their functions in a vacuum. There is an expectation that they will act fairly and in a manner that does not place any individual unnecessarily at risk.  To the extent possible they should strive to proceed in a manner that respects the law, particularly constitutional rights, to the fullest extent possible, albeit in a parliamentary context.  In essence, the House and its committees ought to adopt practices and procedures that allow them to carry out all of its functions, including obtaining all the information required to hold the government to account, while at the same time respecting the principles that underlie the statutory and constitutional protections of compelled information.

There are numerous instances where the House of Commons and its committees have sought information from the government that is protected from public disclosure (or for which disclosure would be an offence), including national defence (Afgan detainees intelligence), international intelligence (Winnipeg lab classified research) and information protected by the Privacy Act and the Access to Information Act. There have also been instances where the disclosure of information could cause harm to individuals (working conditions at foreign mines owned by Canadian companies) or risks to business interests and practices (meat packers and abattoirs during mad-cow disease and beef pricing discrepancies).  In all of these cases the House and its committees were able to put in place processes that allowed the committee and House to obtain full information (or at least the information required to complete their work) and carry out their constitutional functions.  Information held by a witness that, if divulged, might incriminate them is similarly protected by law and the constitution.  Requiring a witness to divulge such information, without adequate protection puts them equally at risk of prosecution, a steps to mitigate the risks should equally be put in place.

While each situation may require a bespoke solution, the House and its committees have various ways to respect the rights and interests at stake.  These solutions are not exhaustive.  A situation may require a combination of tools, or the development of a new approach or procedure.  Some possible solutions may include: requests for information in writing, whereby the committee can consider appropriate redactions before responses are placed in the publicly accessible parliamentary materials;  hearing witnesses in camera with the committee then deciding how to consider the evidence and how to report its findings in a manner that protects the rights or interests;  or, the committee, in combination with these protective proceedings can report in a manner that protects the information or witness’s interests;  committee can report in such a so as to avoid names or other identifiers by giving individuals numbers or other signifiers;  and the report can make it publicly clear and explicit that the information contained in the report is protected by parliamentary privilege and cannot form the basis for any administrative, criminal or civil liability.

Although the matter, is at present before the full House of Commons most of the required accommodations and solutions fit best within the committee environment.  Committees are better equipped to seek particular answers and to deal with any competing individual rights that might arise.  It is doubtful that there is a meaningful way for the House itself to reconcile the rights at issue.  Unless the House is fully convinced that the committee has taken all steps to reconcile these interests and that the individual, despite being offered the necessary accommodation or explanation is still recalcitrant, the motion should be reconsidered and the matter sent back to the committee on the understanding that a way to seek the information be worked out, and that failing that the House will take up the matter.  The Speaker, when faced with similar arguments made by the government for not providing evidence based on legal or constitutional reasons for not providing information (Afghan detainees, and Winnipeg labs), requiring the documents to be provided while at the same time encouraging the House to find a workable accommodation process to obtain the information while respecting the underlying principles in the law which protected the information from public disclosure.   Invariably an accommodation was found, involving bespoke committee procedures.

It is not too late for the House to reconsider whether such a direction should be provided to the committee, before the House intervenes in a manner that may not be able to protect the witness. If the witness continues to refuse an accommodation by the committee, or to provide information within the accommodation, the House would still have the ability to proceed as set out in the motion in order to assist the committee.   If, however, the House chooses to go forward with the process set out in the motion without referral back to the committee, the Speaker, who is the guardian of the privileges of the House of Commons, should consider making a statement that the witness enjoys the full protection of the privileges of the House of Commons and that the use of their evidence for any investigation or subsequent prosecution of the witness would be a breach the privileges of the House.

We live in an era when governing and accountability are more complex. There is a greater integration of public and private activities.  Governments intent on fiscal savings and flexibility look to contracting for the provision of services and programs.  The public demands more of government both in programs and in curbing and regulating business. In addition, there is a greater focus on rights (both constitutional and legal) and a expectation of fairness.   And there is a growing use of social media and expansion of the dissemination of and commenting on information that often seems to result in conflicting rights.  This combination of factors has led to a greater need for committees and the House to engage with private individuals and businesses.  To better understand how government operates, and for parliament to better be able to hold government to account for its operations, there is greater reliance on non-governmental witnesses who primarily operate and carry out their lives and business in the private sector where the rights, processes and responsibilities are different.  Whereas the House, when historically holding the government to account, might not have had to focus on the rights and interests of witnesses beyond their governmental responsibilities, they must now do so.  Processes and perspectives designed since the 17th century, focussed almost solely on the government, that functioned effectively into the mid 20th century, need to be adapted.  Parliamentarians now need to account for the fact that many of the witnesses called before a committee have individual rights, protected by law and the constitution, that might be affected by the processes of the House.  While the House must retain the right to all information required to carry out its functions, it has a responsibility to do so in a manner that infringes the rights enjoyed and expected by individuals by virtue of the law and the constitution to the fullest extent possible.

Whether the House chooses to do so on a bespoke basis or on a more general process design basis is for the House to decide.

Although the courts have been tolerant and deferential to the House whenever attempts have been made to have the courts consider matters occurring in proceedings, there is no guarantee that they will not use their authority to examine and define the scope of the powers and privileges if the House fails to protect the rights of individuals.

As the Supreme Court in Vaid v (Canada)  House of Commons)  reminds all concerned

 “There are few issues as important to our constitutional equilibrium as the relationship between the legislature and the other branches of the State on which the Constitution has conferred powers, namely the executive and the courts.  The resolution of this issue is especially important when the action of the Speaker sought to be immunized from outside scrutiny is directed against a stranger to the House (i.e., not a Member or official) who is remote from the legislative functions that parliamentary privilege was originally designed to protect.”


“ It should be emphasized that a finding that a particular area of parliamentary activity is covered by privilege has very significant legal consequences for non-members who claim to be injured by parliamentary conduct, including those whose reputations may suffer because of references to them in parliamentary debate, for whom the ordinary law will provide no remedy.”

It therefore up to the House to take responsibility to properly balance the rights and interests at stake.  The present circumstances facing the House provide the perfect opportunity to do so.