December 4, 1979

MR. BROADBENT-REMARKS OF PRIME MINISTER DURING QUESTION PERIOD

NDP

John Edward Broadbent

New Democratic Party

Mr. Edward Broadbent (Oshawa):

Mr. Speaker, 1 rise on a question of privilege which arises from answers given to me by the Prime Minister (Mr. Clark) in response to my questions earlier today.

Topic:   PRIVILEGE
Subtopic:   MR. BROADBENT-REMARKS OF PRIME MINISTER DURING QUESTION PERIOD
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?

Some hon. Members:

Oh, oh!

Topic:   PRIVILEGE
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NDP

John Edward Broadbent

New Democratic Party

Mr. Broadbent:

If hon. members on the other side would listen for a minute, they will have a chance to reply. In my first question to the Prime Minister I made reference to a pricing practice of Imperial Oil Corporation. I used the term "price-gouging". It seems to me that that is the only term which the Prime Minister could have had in mind when he misrepresented what I raised in my question. In reply the Prime Minister stated that I was using abusive or insulting language.

When raising a question of privilege, I think that the facts and figures are certainly relevant. In my view I was not using such language. In fact, it could be described as descriptive language. It was shown four years ago in civil proceedings that Imperial Oil had set up a dummy company in Bermuda to avoid paying Canadian taxes, that it overcharged Nova Scotia consumers by not passing on price reductions-

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LIB

James Alexander Jerome (Speaker of the House of Commons)

Liberal

Mr. Speaker:

Order, please. The hon. member for Oshawa (Mr. Broadbent) gave notice of his intention to raise this matter by way of a question of privilege. I have a dual difficulty here. It seems to me that not only was the hon.

member for Oshawa entitled to say what he said, but so was the Prime Minister (Mr. Clark) during the course of the question period. The right hon. Prime Minister may have described the language used by the hon. member for Oshawa as insulting, but that is his right during the question period or at any other time during the proceedings. There is nothing unparliamentary there.

Similarly, the hon. member for Oshawa said that the particular company to which he made reference during the course of the question period was price-gouging. The hon. member is entitled to justify those remarks with an argument, I am sure, but the fact is he does not have to justify his remarks because neither do they constitute unparliamentary language.

For me to permit the hon. member for Oshawa to defend himself now would be to invite the Prime minister to defend himself, neither of whom need a defence because they both used, it seems to me, language to which I cannot take any objection on behalf of the House. I do not think that it would be appropriate to enter into a discussion now in defence of either one of the interventions of the two hon. members here this afternoon. 1 will check the record, and if I am wrong in my estimation of the situation, the hon. member shall have leave to raise a question on the matter tomorrow.

Topic:   PRIVILEGE
Subtopic:   MR. BROADBENT-REMARKS OF PRIME MINISTER DURING QUESTION PERIOD
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PC

Charles Joseph Clark (Prime Minister)

Progressive Conservative

Mr. Clark:

Nice try, Ed.

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Subtopic:   MR. BROADBENT-REMARKS OF PRIME MINISTER DURING QUESTION PERIOD
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MR. BALDWIN-OFFICIAL SECRETS ACT-IMPLEMENTATION OF STANDING ORDER 43 MOTION

PC

Gerald William Baldwin

Progressive Conservative

Mr. G. W. Baldwin (Peace River):

Mr. Speaker, 1 would like to raise a question of privilege, of which I gave you notice last Thursday. I am glad to do so on this day because it is the sixth anniversary in terms of months that this government has held office. My question of privilege deals with the question of openness and the Official Secrets Act. This government has moved further and faster toward openness and honesty than any other government in the last 50 years. But I want to go even further and even faster, and it is for this reason that I raise this particular issue.

On October 18 I moved in the House a motion under Standing Order 43 which the House was good enough to accept. It reads:

That this House recommends that a parliamentary standing or select committee be forthwith given an order of reference to review the terms of the present act, including a study of such recent cases as that of Dr. Peter Treu and The Toronto Sun and to report proposals for suitable changes to the Official Secrets Act, and that no claim of Crown privilege be allowed to limit the extent of inquiry by the committee.

Of course, I refer to the Official Secrets Act. When I raised the point of order last Thursday, it appeared that there was some difficulty between myself and the President of the Privy Council (Mr. Baker) as to the terms of the motion which would be brought into this House to implement this particular motion under Standing Order 43.

As 1 understand it, and I think that my hon. friend will accept this, there is some question in the mind of the government as to whether or not this House is competent to pass a

December 4, 1979

motion purporting to authorize one of its committees to make inquiries under any subject matter without regard to the limitations of Crown privilege. Having said that, I make it quite plain that this House and all the members in this House and in the other place are bound by statute law.

It has been suggested in the form advice given to my honourable friend, I believe, that there still exists an indefinable and vague, but possibly still a very strong, practice coming from the days of the royal prerogative that, apart from statutes, members of the government under the bureaucracy may raise on their own initiative without any foundation in statute a question of Crown privilege and can say, "We will not have to give evidence on this issue; we will not have to produce these particular documents". That is the issue. It is a narrow issue but I suggest a very fundamental and important one.

I think it does well to have this House deal with the issue because this government-and I give the government credit for this-is moving toward a situation where the work of this House will be developed to a greater extent through the agency of committees. I think we should know what power those committees will have.

Crown privilege has been defined as the original right in the Crown in ancient days when the king could not be sued to refuse production of documents or discovery of witnesses. It was later extended to members of the Privy Council in the 17th century in order to protect them from charges by giving immunity through non-disclosure of information about their activities. That right has lingered to the present day.

My quarrel with the proposition is that there still exists a non-statutory, superior and royal power in the ranks of the bureaucracy, acting through the ministry, to inhibit a committee of this House from pursuing its inquiries, and that even a unanimous motion of this House is not enough to override this particular principle.

A very good illustration of this is the fact that the House has been debating a motion proposed by the President of the Privy Council which deals with cost overruns. During the course of the investigations by that committee it will probably be essential for members of the committee to ask questions of members of the public service about the ways and means by which these cost overruns were developed. If the proposition of the principle of Crown privilege is to be sustained and put into effect, then I can see that in many instances many members of the public service will say, "We don't intend to answer this question; it may deal with a question of policy or it may deal with a question where the public interest is involved and we don't intend to answer it."

There have been some pretty clear illustrations of this. When the right hon. Leader of the Opposition (Mr. Trudeau) was prime minister, he made it perfectly clear that he would not allow the Clerk of the Privy Council to be questioned before a committee. That is an illustration of the use of Crown privilege.

Privilege-Mr. Baldwin

In another situation, Mr. Speaker, several years ago the Standing Committee on National Resources and Public Works was examining Mr. Donald Macdonald who was then minister of energy, mines and resources and whose name is not unknown at the present time. The question arose as to whether certain witnesses who had appeared with Mr. Macdonald could be examined and, if so, the extent of the examination. Mr. Macdonald said, as reported at page 24:32 of the committee proceedings for December 18, 1973, as follows:

This has been a longstanding procedure in the Canadian public service and in the House of Commons that it is a minister who ultimately assumes his responsibility and not individual advisers; I think my position is well founded constitutionally.

On page 24:33 of the proceedings there appears the following exchange between myself and the minister:

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PC

Gerald William Baldwin

Progressive Conservative

Mr. Baldwin:

... I had the honour to serve as Chairman of the Standing Committee on Public Accounts for several years, and deputy ministers appeared there by themselves-not under the skirts of the minister. They answered a lot of questions, as did their advisers. When you come to a question of policy, absolutely, a deputy minister or an adviser must defer to the minister; but on questions of fact, deputy ministers and advisers are compellable witnesses to appear here ...

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PC

David Samuel Horne MacDonald (Minister of Communications; Minister responsible for the Status of Women; Secretary of State of Canada)

Progressive Conservative

Mr. Macdonald (Rosedale):

I am sorry, that is too much. The minister is responsible; if he chooses to have his deputy minister appear without his being present, that is the minister's choice. But ultimately, it is the minister's responsibility as to who shall appear.

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PC

Gerald William Baldwin

Progressive Conservative

Mr. Baldwin:

You do not want us to ...

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PC

David Samuel Horne MacDonald (Minister of Communications; Minister responsible for the Status of Women; Secretary of State of Canada)

Progressive Conservative

Mr. Macdonald (Rosedale):

This has been a long-standing parliamentary principle...

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PC

Gerald William Baldwin

Progressive Conservative

Mr. Baldwin:

The minister is wrong. The minister is challenging responsible government, the responsible right of the House of Commons ...

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PC

David Samuel Horne MacDonald (Minister of Communications; Minister responsible for the Status of Women; Secretary of State of Canada)

Progressive Conservative

Mr. Macdonald (Rosedale):

1 must say that responsible government means that a minister is responsible for his portfolio to the House of Commons, not individual public servants.

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PC

Gerald William Baldwin

Progressive Conservative

Mr. Baldwin:

The minister would not recognize responsible government if it got into bed with him, that is all I can say.

I suppose that last comment was somewhat improper, Mr. Speaker. These assertions have been made, however. I am glad that the Prime Minister (Mr. Clark) has indicated that he would have no objection to allowing the Clerk of the Privy Council to appear before a committee. I suggest, however, that it should be as a matter of right, and not a matter of grace. That is the right of this House and this committee, if it sees fit by appropriate action in the House or by direction to its committees.

There has been a lot of discussion on this issue and challenges have been raised in the House and in committee about the subject of judicial decisions. I am not going to take too much of the time of the House because this is a highly academic subject and, more than that, it is a tremendously important one to us. I will, however, touch on the highlights.

The issue was brought up for consideration in the parliament of Australia. In 1975, what was called-

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LIB

James Alexander Jerome (Speaker of the House of Commons)

Liberal

Mr. Speaker:

Order, please. I hesitate to interrupt the hon. member but while I think I understand the nature of his argument, I do not understand the nature of the problem. The House passed the resolution to which he has made reference and which reads as follows:

December 4, 1979

Privilege-Mr. Baldwin

That this House recommends that a parliamentary standing or select committee be forthwith given an order of reference to review the terms of the present act, including a study of such recent cases as that of Dr. Peter Treu and The Toronto Sun and to report proposals for suitable changes to the Official Secrets Act, and that no claim of Crown privilege be allowed to limit the extent of inquiry by the committee.

The only basis upon which the hon. member could have a question of privilege, which he is now arguing, is that the House has perhaps disregarded that motion. The motion is not an order. The result of that motion is a resolution recommending "that a parliamentary standing or select committee be forthwith given an order of reference". If the hon. member's complaint is that the House has not moved to give that order of reference, that is an argument that I might want to entertain. He is now saying, however, that there is a difficulty which goes beyond that, but I have not heard it yet from the government.

Perhaps the hon. member could direct his attention to the problem of whether it has been a reasonable time, whether there should be an order and what the terms of the order ought to be. I have not yet heard him say that the House is in default of that order. I would guess that the drafting of the order might be somewhat complex. Perhaps the hon. member could turn his attention to that aspect of the matter.

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PC

Gerald William Baldwin

Progressive Conservative

Mr. Baldwin:

Mr. Speaker, when you said the "House," I think you meant the government has not complied with that. 1 think that is where the difficulty lies. As I understand it, the government feels that the terms of the order of reference to be given must omit any claim Crown privilege. That is what I take exception to and it is what I think is a question of privilege. I may be wrong in that and if I am 1 will gladly stop now. Maybe my friend the President of the Privy Council has something to say.

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LIB

James Alexander Jerome (Speaker of the House of Commons)

Liberal

Mr. Speaker:

1 would want to reserve the right of the hon. member to meet this point. I am not trying to interrupt him to prejudice his argument in any way. He was about to move to establish that part of his argument. It may be appropriate to hear from the President of the Privy Council (Mr. Baker) and see whether this argument can be met.

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PC

Walter David Baker (Minister of National Revenue; President of the Privy Council; Leader of the Government in the House of Commons; Progressive Conservative Party House Leader)

Progressive Conservative

Hon. Walter Baker (President of Privy Council and Minister of National Revenue):

Mr. Speaker, I listened very carefully at the time the hon. member made his motion. Within a day or so after that, 1 sent him a draft of a proposed term of reference with respect to this matter, indicating my own wishes becuse of the emphasis we were placing at that time on freedom of information.

After a reasonable period of time 1 heard from the hon. member that the form of the order was not satisfactory. He also raised the question of Crown privilege. In the meantime, I had received an opinion from the legal officer of the House of Commons that there was some question about the propriety of the matter of Crown privilege.

I then took the unusual step, not just of informing my friend of that, but of sending him a copy of the opinion and asking for his comments on it. I received a letter from him, I believe it

was yesterday, indicating that that was not acceptable to him.

I have not had a chance to reply yet but I can reply now, Mr. Speaker. I am considering the argument he put to me and I think we should comply to the extent that we can within the law.

My concern, Mr. Speaker, is not with respect to the hon. member putting a non-statutory prerogative in the bureaucracy; my problem is with respect to the matter raised by the legal officer of the House of Commons with respect to non-statutory prerogatives in the law.

I think our exchange has been a good one. It was quite a healthy exchange and reasonably expeditious when the exchange finally started. I can undertake to you, sir, to the House and certainly to the hon. member that there is no question of delaying it. I would have no objection whatsoever, having raised the question of privilege today, even though a motion has not been put down and these discussions are continuing, if the matter could be reserved until my law officers look at the material submitted by the hon. member. I undertake to do that quickly. I think the hon. member and the House know that. I will do it quickly and put the reference down. When the reference is down there may be a question of privilege at that point with respect to the terms of the reference.

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LIB

James Alexander Jerome (Speaker of the House of Commons)

Liberal

Mr. Speaker:

That appears to be satisfactory to the hon. member for Peace River (Mr. Baldwin).

Something occurs to me as well that both hon. members may want to think about, and that is that the resolution that has been adopted by the House recommends that a parliamentary committee be given an order of reference. The concluding sentence is that "no claim of Crown privilege be allowed to limit the extent of inquiry by the committee".

It may be, and 1 would want the hon. members to reflect on this, that the only time a question of privilege can arise then is if during the committee's deliberations that matter of Crown privilege is permitted to limit the extent of the inquiry. I know that the hon. member may want a House order to obviate that possibility, but it may be that an order of reference will in fact comply with all that has been resolved by the House on October 18 and that no offence against that resolution can be considered to have taken place except when the claim of crown privilege is used in the inquiry to limit it. I do not attempt to resolve that point at this time, simply to leave it to the hon. members to consider. Perhaps we can await with dispatch the undertaking of the President of the Privy Council to produce a motion and then see whether or not there is a question of privilege to be taken at that time or at a later time.

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December 4, 1979