December 4, 1979 (31st Parliament, 1st Session)


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:

Full View