The Auditor General issued a Report to Parliament that exposed numerous controversial contracts, spending decisions, and potential conflicts of interest, relating to the government agency responsible for sustainability projects. To carry out her work, the Auditor General asked for and received information from various government departments and agencies and from individuals. As required by the Standing Orders of the House, the report was referred to a Committee of the House, at which the Auditor General was scheduled to appear.
Before the Auditor General appeared, the Conservative opposition MPs concluded that the report disclosed what they believed could be criminal activity, and brought a motion in the House that required the Auditor General and those departments and officials who had provided or used documents in the preparation of the Report
“ to deposit with the Law Clerk and Parliamentary Counsel, within 14 days of the adoption of this order, the following documents, created or dated since January 1, 2017, which are in its or her possession, custody or control….
the Law Clerk and Parliamentary Counsel shall promptly thereafter notify the Speaker whether each entity produced documents as ordered, and the Speaker, in turn, shall forthwith inform the House of the notice of the Law Clerk and Parliamentary Counsel…; and
the Law Clerk and Parliamentary Counsel shall provide forthwith any documents received by him, pursuant to this order, to the Royal Canadian Mounted Police for its independent determination of whether to investigate potential offences under the Criminal Code or any other act of Parliament.”
During debate the motion was amended to delete the phrase “for its independent determination of whether to investigate potential offences under the Criminal Code or any other act of Parliament.” The amended motion passed with the government MPs voting against it.
What is striking about the motion is that the documents will never actually come into the possession of the House of Commons or its Committees. The documents in question are not to be provided to the House or its committees for their consideration or use. This is not an oversight on” the part of those moving the motion. It is intentional. There is no doubt that the opposition wanted the RCMP to investigate the “wrongdoings” exposed in the report and that they were proposing that that the power of the House to send for “papers” be used to obtain and pass on documents directly to the RCMP, without any consideration or review by the House or its committees. The mover of the original motion stated “[t]hat is why this motion is so important, so we can get all the information handed to the RCMP, because this is so serious we believe this warrants a police investigation.” Another MP stated “We are calling for a RCMP investigation because the current issue is a breach of trust as well as fraudulent behaviour. Would he agree that we have to call the RCMP in here?” And a third MP makes it clear that the purpose of the motion is only to get the information to the RCMP; “Madam Speaker, the Conservative Party of Canada is asking the RCMP ultimately to investigate criminality surrounding the misuse of taxpayer funds.” When asked why the Conservatives did not just write to the RCMP with their concerns, and request that the RCMP investigate, or that the Auditor General or others be asked to refer the matter to the RCMP and provide the information the response was, “The problem with that approach is that we are assuming that we are getting the full documentation from the Liberal government. We cannot assume that without bringing forward this motion. We cannot simply hand over allegations without concrete evidence and documentation from the Liberal Party, which is at the heart of this motion.”
The request for documents is not connected to a parliamentary proceeding or function. The documents are not being requested or required for use by the House for any House proceeding nor for the House or its Committees to carry out any of their constitutional or parliamentary functions. Without being in furtherance of a proceeding in Parliament, there is nothing to anchor the power to send for “papers”. This use of the power to send for papers is not only beyond the scope of powers of the House, but any “compliance” is not covered by any privileges that attach to a proceeding in Parliament.
The power to send for papers or summons documents is not a stand-alone power. It is a power that is exercised in aid of the House or a Committee that is carrying out one of its functions; i.e., the gathering of evidence for the House or Committee to either legislate or hold a hearing or conduct a proceeding of a parliamentary nature. In this instance, there is no parliamentary proceeding or function to which the power to gather evidence is attached. The power is being exercised to bolster a Conservative request for a police investigation, inferring that the evidence be considered by the police to determine whether further investigation, by the police – not the House- is warranted. Therefore, the exercise of the power is improper and beyond the scope of the House’s authority. Using a legal, or in this case a parliamentary, process for a purpose for which it is not intended or permitted is by definition an abuse of power.
While there is no doubt the House of Commons has extraordinary powers to send for papers and persons, in effect to summons documents and compel witnesses and evidence, this power is not unlimited in scope. The scope has been clearly and consistently stated by the courts, including the Supreme Court of Canada as being what is necessary for Parliament to carry out or discharge its functions. These functions include “legislating” and “deliberating, including holding the government to account”. Both the legislating and the “holding the government to account” functions are internal to the House of Commons.
It is not a function of Parliament, or the House of Commons, to assist the police in an investigation by acting as a conduit to gather evidence for the police. The police have more than adequate powers and tools to obtain any evidence they require, and in a manner that meets all the requirements of the law and the constitution. The police are agents of the Crown, and as such they are accountable to the House of Commons through the appropriate Minister. They do not follow or take direction from Parliament. There can be no doubt that the motion of the House (even with the amendment) could be seen as an attempt to direct or encourage the police to undertake an investigation. By implicating itself in a police investigation, the House may not only be seen as interfering in the work of the police, but it is also potentially compromising Parliament’s accountability functions.
Since the exercise of the power is for a purpose beyond the scope of powers of the House, anything provided pursuant to the order is not covered by parliamentary privilege and is therefore subject to the ordinary application of the law. For example, the Access to Information Act, and the Privacy Act will fully apply to those who provide protected information pursuant to the “order”. While there are provisions in those Acts that protect disclosure pursuant to an order compelling production in a proceeding, this protection is premised on the order being lawful and within the jurisdiction of the body issuing the order. As noted above this is not the case here. The purpose behind the exemption is that the information will be used in a proceeding which relies on the order compelling the information. That is also not the case here. In the present instance, the information is intended to be used in a police investigation, not a parliamentary one.
The order of the House of Commons raises even more troubling constitutional questions. Police investigations and the gathering of information by the police are subject to numerous legal and constitutional constraints. The most consequential constraint is the Charter’s section 8 protection against unreasonable search and seizure. No-one, including the government and government agencies, is required to provide any information to the police. They enjoy the constitutional right to remain silent and not incriminate oneself unless compelled to produce the information to an investigating body or court. In the ordinary course, in order to compel production, the police are required to obtain a warrant, issued by the courts, based on a reasonable belief that a crime has been committed. Such a warrant is at the request of the police and issued by the courts. None of this process was followed in the present case. Any argument that the documents are not being compelled by the police or the courts and are being voluntarily provided by the House is specious at best. The documents in question can in no way be seen as being voluntarily provided by the rights holders, being the entities that originally control the documents. As a result, a serious argument can be made that the documents are being presented to the police in manner that is contrary to section 8 of the Charter. As a result, any use of this evidence by the police in an investigation, or the Crown prosecutors in a prosecution is likely to come under close constitutional scrutiny, and may potentially be excluded by the courts.
Although it is correct to state that the Charter does not apply to the exercise of a parliamentary privilege or power by the House, this reasoning cannot be relied on in the present circumstances. First, the use of a power beyond its scope is not protected by privilege. Second, there is no underlying proceeding to which the privilege attaches. Even if one could stretch an argument to cover the proceeding leading to the order directing the provision of documents to the Law Clerk, on behalf of the House, any privilege or protection of privilege is lost, or can be considered to be waived by the House, once the documents are provided to the RCMP. Another way to look at the matter is that there are two “proceedings” in parliament when documents are summoned and used. The first proceeding is the one ordering the documents, the second is when the documents are used in a proceeding such as a debate or committee meeting. In this case the, if there is a power to compel, privilege would only attach to the decision to compel. The second “proceeding” is not a parliamentary one, it is a police investigation and potential criminal proceeding where the Charter fully applies.
The independence of Parliament from the executive, the courts, and by extension the police, is one that needs to be respected by all concerned. The independence of Parliament allows the House to carry out its internal affairs and business without interference from the courts or the police. Investigations and evidence gathering by the House of Commons are based on a different legal and constitutional platform than that of the courts, police and other agents of the state. The rules of the House for the conduct of its proceedings and the gathering of evidence are within the scope of the lex parliamenti, which is wholly within the exclusive jurisdiction of each House to apply as it deems necessary for its own internal constitutional purposes. As the courts have found, the House of Commons is the sole judge of how the ordinary laws, including the application of the Charter, are to apply to its own proceedings. In return, information gathered or compelled by the House of Commons for use in its own proceedings falls within the protection of parliamentary privilege and cannot be questioned or used by entities outside of the House, including for investigations. Under normal circumstances, where materials are compelled for use in a proceeding, neither the courts nor the police can use the evidence gathered, because it is protected by privilege, whether the compulsion or gathering is otherwise contrary to the Charter does not arise. At the same time, once a matter falls outside the scope of the exclusive jurisdiction of the House over its own proceedings, the ordinary law, including the Charter, applies with full force. Parliamentarians must understand that where their jurisdiction ends, the jurisdiction of the courts, the executive and the police begins. Although something may be protected by privilege when it is within the constitutional realm of the House and its proceedings, once a matter finds itself beyond the parliamentary pale it is subject to the ordinary laws. This is the case, whether the result is by inadvertence, or by design. In this case, the House, by sending the documents to the RCMP, has clearly and decidedly placed the matter and documents outside its jurisdiction. Most worrying, is that the House has done so using a tool that is only available to it pursuant to the lex parliamenti, thus failing to respect its own independence. In doing so, it may have invited the courts to consider the House’s abuse of powers that for centuries have been carefully guarded and honed so as to avoid such examination by the courts.
One can only hope that the materials have not yet been provided to the RCMP, or can be fully retrieved, intact and unread, and that the House reconsiders its position. Otherwise, it will find itself in a constitutional quagmire of its own making.