STANDING COMMITTEE ON PROCEDURE
AND HOUSE AFFAIRS
COMITÉ PERMANENT DE LA PROCÉDURE
ET DES AFFAIRES DE LA CHAMBRE
[Recorded by Electronic Apparatus]
Thursday, February 11, 1999
The Chairman (Mr. Peter Adams (Peterborough, Lib.)):
Colleagues, we can begin. The order of the day
is the consideration of a request received pursuant to
Standing Order 106(3), concerning the leak of committee
reports prior to tabling in the House.
Before we begin and before I go on to Stéphane—if
that's okay, Stéphane—perhaps I can first of all
briefly walk you through the way I see this inquiry
going and walk you through what our plans
are for the next several weeks.
Today we are beginning this inquiry into the matter of
leaks of reports. We continue that on Tuesday. At the
moment, our main witness on Tuesday is Bill Graham, who is
chair of the liaison committee, which is the committee
of chairs of standing committees in the House of
A week today, at the same time and in the same place,
our witnesses are Doug Fisher, as a journalist who
has parliamentary experience and who in a sense is
representing all journalists, and Jules Richer,
who is president of the Canadian Parliamentary Press
Gallery and will be formally representing the gallery
in these inquiries.
Then there's a break. On the next Tuesday on which
the House is sitting, March 2, there is, at the moment,
an open meeting. It will depend on how things are
going at that time. There are other people we would be
glad to have here. We can decide that toward the end
of next week. On March 4 our witness is Joseph
Maingot, obviously because of his particular
Then we'll be thinking about a report—and by the way,
about whether the report should be leaked or not. I'm
sure we'll be discussing that when the time comes.
Some hon. members: Oh, oh.
The Chairman: But while we're doing that, since
the budget will have been passed, we will move—we've
discussed this before—to consideration of the main
estimates for which we are responsible, first of all
the House of Commons. We look forward to seeing the
Speaker and others on March 11. Next, on March 18, we
will consider the main estimates of Elections Canada.
We see that meeting as having two purposes: one, of
course, is to consider the main estimates of Elections
Canada, but the second is to lead into our probable
consideration, by that time, of the Canada Elections
Are you comfortable with that?
Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Mr.
Chairman, I don't wish to comment about the schedule. Before we
turn our attention to the items on today's agenda, I would like to
discuss something briefly. I don't want to take up too much of the
time set aside for our distinguished witnesses and for questions
My question concerns the preparations for today's committee
meeting. As you know, I'm always ready to praise the committees
staff, but I have to wonder why we didn't receive any briefing
notes for today's meeting, particularly since at our December 3
meeting, you yourself stated that in preparation for today's
meeting, our research staff could look into this matter and try to
come up with some figures as to the number of leaks that have
occurred. Should we attribute the lack of briefing notes from the
committee's researchers to the fact that no such figures are
available, or to the fact that this is a politically charged issue?
To my knowledge, very few of the issues dealt with in
committee are not highly political in nature. Therefore, this can't
be the reason and I have to conclude, Mr. Chairman, that we didn't
get any briefing notes simply because there are no figures
available. As far as I know, evidence of such leaks abounds. I
would have liked to know if this is a recent phenomenon or if many
other similar incidents have happened in the past. Unfortunately,
we have no evidence to support our work this morning.
The Chairman: Stéphane, I'm afraid I must take
responsibility for that. We discussed it in steering
committee and in committee, and it was my sense, to be
honest, that there's been so much discussion in the
House of Commons itself.... This was a very particular
request, the result of several standing orders, and has
been discussed in various individual standing
committees, so I had assumed that members were
sufficiently briefed on it to move straight ahead with
I understand the point you're making, but that's the
reason there are no notes today.
Mr. Stéphane Bergeron: Based on your response, Mr. Chairman,
I'm not certain that you understood the gist of my comments. I'm
sure all of us have much to say on the subject of leaks, but I
would have liked some background information on this problem and
some numbers, as you hinted we would have last December 3. I'm a
little disappointed to be empty-handed this morning.
The Chairman: Stéphane, again, I thank you. I do
appreciate the point you're making. It's my
understanding that the House of Commons and our
witnesses today have prepared some notes. They will be
circulated in a few minutes. Perhaps you could look at
Colleagues, if we could keep this in mind and if at
the end of this morning we feel we need more, I'd be
glad to try to arrange for them.
Stéphane, could you wait a few minutes and look at the
material the witnesses are going to circulate for
Mr. Stéphane Bergeron: Since I'm not a time traveller, we'll
have to live with this, Mr. Chairman.
The Chairman: Thank you very much. Colleagues,
bear it in mind, and I'll come back to it at the end of
Our witnesses today are Bob Marleau, Clerk of the
House of Commons, who is here because he is
unbelievably important; Rob Walsh, clerk assistant and
general legislative counsel for committees and
legislative services, who is here because, as I
understand it, Rob represents our clerks of committees;
and Diane Davidson, general legal counsel, legal
services, who I'm sure will give us considerable advice
on the legal aspects of this matter.
We welcome all of you.
Mr. Marleau, we're in your hands.
Mr. Robert Marleau (Clerk of the House of Commons):
Thank you very much, Mr. Chairman.
I would just like
to add that apart from the legal side, Diane is also our
adviser on matters of privilege and contempt. There
are overtones of privilege and contempt when you're
looking at the issue of committee reports being leaked.
To answer Mr. Bergeron's question indirectly, we will be
distributing to you shortly a document which lists the reports and
other documents that have been leaked during the current
Parliament. I must point out to committee members that the House
administration does not keep a systematic record of the leaks that
occur. On the one hand, our committee research staff takes steps to
ensure that this doesn't happen, while on the other hand, it is
somewhat difficult for us to ascertain what in fact constitutes a
The paper that we will be handing out lists only the leaks
that either came to the Speaker's attention, were the subject of a
report, were disclosed by the media—I'll come back to that
later—or were brought to light by a member. As you know, sometimes
only a recommendation or a detail is leaked, not the entire report.
If I may, Mr. Chairman, I will give you, by way of
context, just an overview of some of the discussions
we've had among ourselves about this. It's a difficult
subject to deal with from our perspective, let alone
from yours. What constitutes a leak for one member is
for another member simply sharing information from time
to time. We've had that debate on the floor of the
House, in which a member will say “Of course I didn't
leak it. I just alluded to this part or that part or a
discussion, and you'll find it in the public debates of
the committee.” There's a certain subjectivity or
interpretation as to what in fact constitutes a leak,
and unfortunately we won't be of much help to you in
finding a particular model to apply in order to define
what a leak is or is not.
I think that when this occurs, a member inevitably
comes to the floor of the House, if not to the
committee directly. As you've heard the Speaker say,
the Speaker has little direction from the House on what
to do with this unless he has a report making a
specific recommendation from the committee. The
chair is completely powerless. There are no standing
orders—I underline that—that regulate the conduct of
committees as they relate to the committee reports.
There are conventions of confidentiality. We'll get
into that. I think Madam Davidson will add a little
bit to that aspect. But by and large, committees are
masters of their own destinies. They have sat in
public and adopted reports in public, yet the actual
document, through the convention over the years,
remains confidential until tabled in the House. But you
find no specific standing order or direction from the
House to the committee or to the chair occupants in
relation to that particular point.
Parenthetically, if I may, there have been
some media reports that the current Speaker, in what I
would probably qualify as a moment of frustration,
is alleged to have advocated legislation
on this matter. I was
in the House at that time, and I don't think the
Speaker advocated that at all. He did seem to advocate
that it is a matter for members to address and
to try to get hold of, since he feels somewhat powerless
in the absence of a committee report or recommendations
Then there's the issue of the dynamics with the media.
Speaker Fraser and Speaker Jerome in the past have
stated in rulings and statements in the House that
there is hardly any point in carrying out a media witch
hunt if first and foremost the House has not addressed
the internal workings as to whether it was a member or
a staff member who caused the leak. I think in our
modern context it's pretty hard to blame any member of
the media for publishing something they may have
obtained from the membership of the House.
I'd like, if I may, to go back to the whole genesis of
the relationship between the House and its committees
and try to draw for you some of the changes that
Initially, it is the House that establishes a committee. As a
byproduct of the House, the committee is subordinate to the House.
Therein derives the principle whereby a report must remain
confidential until it is tabled in the House, precisely because of
the relationship of trust that must exist between the committee and
There was a time when committees were very large. In
the twenties and thirties the agriculture committee had
145 members, and when it was given something by the
House by way of an order of reference, there was a
trust relationship involved. The House was entrusting a
smaller membership of the House with a major issue that
normally the House would deal with. Therefore, there
was the reporting relationship back to the House, that
the House should be the first to hear the contents of
such a report, since other members in the House were
not privileged to share in the same kind of study and
inquiry. This convention of confidentiality is, I
believe, anchored in that traditional relationship.
However, things have changed in that particular area.
Committees are now very autonomous. They have powers
under the Standing Orders. They still have a dependent
relationship both to the House and from the House, but
they have considerable freedom in making inquiries or
treating subjects that before were simply given as a
gift from the House. Now the committees have that much
broader scope for their inquiries and hence for their
They can submit reports to the House from time to time
even though the House may not have asked for a report.
Ask yourself the question, does a report the House
has not asked for have the same standing as a report
the House has asked for? Things have changed.
I think the other thing that has changed, if we look
back at the dynamics of the relationship between the
House and the committees, is the issue of minority
reports. Prior to the McGrath committee, whose
recommendations were adopted in 1987 but find their
roots in the Lefebvre committee of 1980-83,
there was a lot of pressure by the opposition of the
day to include in committee reports minority reports;
that is, the minority taking a position that is
different from, if not adverse to, the majority of the
That dynamic has also, I believe, changed or
contributed to changing this approach to consensual
reporting, to compromise, whether it was in-camera
meetings or public meetings, because if the opposition
or the government wanted to bring a more unanimous
or consensual aspect to their recommendations, there
was, I think, a stronger dynamic to achieve that in the
absence of the provision of a minority report being
included in the report of the committee. Then a
speaker would have ruled out of order the entire report
if it had a minority recommendation contained therein.
It was the big parliamentary no-no, and it continues to be
in some Commonwealth legislatures.
I'm not advocating that you revert to that. I think we now
have better than ten years' worth of experience with minority
reports, and I'm certainly not advocating that we turn back
But that adds another dynamic toward the
eventual premature release of information on both sides
of the debate when a committee is considering such a
The other change in major dynamics is the relationship
with the press gallery and the media. Over the years
this has evolved to the point where I'm not so sure
that as an institution we can continue to advocate
relationships that were historically nurtured and
developed with individuals in the gallery.
Committees did. You'll probably hear that from Mr.
Fisher, who, I heard you announce to the committee,
will be one of your witnesses. The Canadian Press no
longer has a bureau chief in the press gallery on
Parliament Hill. So when you look at the relationship
and understanding of where a committee is going on an
issue—and I place no blame on the media for this—I'm
saying it's a changed dynamic. They have had their own
change pressures over the years, not to speak about the
information explosion they're having to deal with,
cope with, manage, and report on. So I
think you have to acknowledge that there has been a
change in that relationship as well. Maybe it makes
the scoop more tempting, maybe it makes the leak more
tempting, I don't know, but that dynamic and that kind
of building of relationships have changed considerably
over the years.
Finally, if I may, I'd like to offer not solutions or
specific recommendations but matters I think you may
want to consider as you go through this review.
First of all, I would certainly commend to you some
reflection on some clear standing orders the House
could adopt and set for its committees as to its
expectations when it comes to this issue of reports. I
mentioned one to you earlier. There's a report that the
House has asked for more standing in a confidentiality
sense in a report, which the House hasn't asked for.
That's one. Also, for its chairs you now have a
liaison committee, which is entrenched in the standing
orders and has better than 12 years' worth of
experience and practice. Maybe the House through
standing orders could expand on the mandate of that
particular committee in relationship thereto.
What are the House's expectations for members on
committees in relationship thereto? The parliamentary
staff is of course more in our administrative control
in the case of disciplinary measures, if you like, but
I would also advise you to avoid the concept of
legislation, as has been done in Australia. I think you
should look at it, because there are things in that
particular legislation and the experience they've had
with it that would guide you and show the pitfalls to
avoid. We have a charter in Canada, and Ms. Davidson
may want to comment on that as well in relationship to
potential legislation. But it would be my advice that
while you could look at it, you may not wish to go down
With regard to too many standing orders, you could
allow certain reports to be discussed in public. They
all need to be in public. In this information age we
still deal with some of these valid conventions that
may be seen as archaic. I'll give you an example.
You're not supposed to say on the floor of the House
what went on in the Senate yesterday. We need to
respect the integrity and not interfere in those
proceedings, nor would we want them to do so. But
everyone else is talking about it. To what point you
might want to look at those kinds of issues in
relationship to committees sitting in public on
recommendations or reports of the House is one element.
Another element is
how you might deal with some of these leaks
once you decide you want to deal with them. A leak is
not always a leak. I've looked for examples of where a
leak was not a leak, and I was loath to mention any
single one of those that had been circulated to you,
because it might have appeared that I was commenting on
one of them or a member in particular, so I chose a
In the seventies I was the clerk of the miscellaneous
estimates committee, long since defunct as a committee,
and we were dealing with bilingualism,
biculturalism, and the bilingual bonus. We had some
very intensive in-camera meetings relating to the
President of the Treasury Board. There was a
subcommittee meeting that Friday afternoon on the
agenda, in camera, and they decided to call the
Treasury Board minister for the next Tuesday.
As a good committee clerk, I put out the usual notice
on Friday afternoon that said “Witness: President of
the Treasury Board”.
The headlines in the Saturday morning edition of Le Droit read
“Drury to appear before the committee Tuesday”. The reporter had
led off his article with the following: “Robert Marleau, Clerk of
the committee, has revealed that...”, whereas all I had done in
fact was send him the notice of meeting. I spent the worst half
hour of my life on Tuesday morning, when I was forced to field
questions from committee members and reassure them that I had not
leaked the committee's position. I merely did as I was instructed
to do, that is publicly disclose the name of the witness who was
scheduled to appear on Tuesday.
So a leak is not always a leak—that's one issue I
think you have to look at—although it may be perceived
by others as one.
Finally, maybe we've come to a point in parliamentary
administrative terms—and here I would look to the
liaison committee as well, as an element. You're
probably the best trained media relations individuals
in the country, around this table.
Mr. Joe Fontana (London North Centre, Lib.): You
think so, eh?
Mr. Robert Marleau: Maybe the administration can
share some of that responsibility, but I don't think we
have had much foresight in looking at the whole
communications issue in relation to committees. I
don't mean just in relation to the media; I'm talking
about the communities you represent, the groups you
interact with, and the objectives you set for
yourselves as a committee. I think we should be
looking at investing in those areas of how to manage
lock-ups and how to train chairs in media
There are some very good outfits in this city who
could assist in that, as well as develop better
relations with your communities as a subject matter
evolves. Of course, certain openness is demanded in
that relationship, so if you decide it's an open
process going in, it's easier to manage than if it's a
closed process going in.
That's about all I have to say about this rather complex
issue, at least from a procedural standpoint. Perhaps my colleagues
would like to comment further.
The Chairman: Diane Davidson.
Ms. Diane Davidson (General Legal Counsel, Legal Services,
House of Commons): I'd like to clarify a few things. My tone may
not be as optimistic as the clerk, because I'm going to be dealing
with legal principles.
Without reviewing our parliamentary rules and forms and the
legal principles at issue when a committee report is leaked, we
must nevertheless be very clear on one thing, namely that according
to our parliamentary rules and practices, it must be clearly
established that when a leak occurs, this in fact constitutes
contempt. Simply defined, contempt is any act or omission which
could constitute an offence against the authority or dignity of the
House of Commons. Obviously, it is the responsibility of the House
to determine at a given point exactly what constitutes contempt.
The definition can change and evolve over the course of different
In this particular instance, the premature disclosure of a
report might well constitute contempt. I base this reasoning on
principles recently recognized by the Supreme Court of Canada in
Donahoe v. the CBC. The court held that in relation to its
proceedings, the House enjoys certain powers, to wit the power to
control the way it conducts its proceedings and to control the
publication of such proceedings. These powers of a constitutional
nature are not incompatible with a democratic system of government
In my opinion, both of these principles are breached when a
committee report is disclosed prematurely. This offence goes to the
very heart of the way our parliamentary institution operates. In
other words, when disclosure occurs, the integrity of the
parliamentary process is put at great risk. There is the risk,
among other things, of misinformation, of false representation and
of seeing the privacy of those who have given testimony behind
closed doors violated.
Such disclosure also constitutes a breach of the House's
ability to control the way in which it conducts its proceedings as
well as the ability of all parliamentarians to comment
appropriately on full reports which faithfully reflect the work of
parliamentary committees. In the majority of cases, committees
receive a mandate from the House to examine a particular issue.
Moreover, that is the reason why committee reports remain
confidential until they are tabled in the House, namely to give all
parliamentarians an opportunity to respond, based on full
information and knowledge of what the committee is recommending.
My review of the situation in other jurisdictions—and
I won't go through the details of that review this
morning because I want to leave time for questions—has
revealed that we are not the only parliament faced with
As the clerk has indicated, a lot of discussion,
debate, and reports have been prepared concerning this
important topic, and I'm sure the research staff could
provide you with those reports. In particular, I'm
referring to Australia and the U.K.
Mr. Stéphane Bergeron: Eventually.
Ms. Diane Davidson: However, like our House,
because of the difficulty in identifying the source of
the leaks, there was a general reluctance in most, if
not all, parliaments to punish the publisher of the
leaks of evidence and draft committee reports. That is
why, in most jurisdictions, rules were established
emphasizing the need for the committee concerned by the
leak to attempt to identify the source before reporting
the matter back to the House.
Nevertheless, most parliaments have chosen to maintain
the rule that confidential information supplied in
committee or discussed in committee and draft
committee reports remain confidential until tabled in
the House. They have chosen to reiterate that rule.
Before answering questions, I would like to offer the
following advice for consideration by the committee.
Perhaps the rule governing the confidentiality of
in-camera committee evidence and draft reports is not well
understood. I agree with the clerk that perhaps some
consideration should be given to outlining that rule in
the Standing Orders to clearly spell out the
seriousness of a breach of confidentiality. In certain
circumstances I think that would be helpful.
I would also suggest that confidential information
emanating from a committee be clearly identified as
such, and if the committee chooses to embody the
principle in the standing order, reference could be
made to that standing order. We could also provide
that the information belongs to the House and should be
returned to the House, particularly when we are dealing
with draft reports.
Those are my comments. I'm open to questions.
The Chairman: Thank you Diane. Rob.
Mr. Rob Walsh (Clerk Assistant and General Legislative
Counsel, Committees and Legislative Services, House of Commons):
Mr. Chairman, I'd like to comment briefly on the list of leaked
reports that we have distributed to all committee members.
I agree with the clerk that we need to define what a leak is,
and what it is not.
In this list we are not putting any measured legal
meaning to the word “leak”. We have just tried to
indicate where we think the contents or parts of
reports were into the public domain before it was the
wish of the committee that it be the case. We've tried
to indicate where we have seen these reports show up,
but that ought not to be taken as comprehensive. We
don't do a media survey on a regular basis to see where
committee reports show up,
but it gives you some idea of the track record in this
current session. It puts something of a reality check
We have only looked at what we call substantive reports.
We're assuming you're not concerned with reports of
committees pertaining to legislation or other matters,
such as membership of committees, etc. They may all be
confidential for the reasons the clerk has indicated,
but they don't draw the same interest, in most cases,
on the part of the media and aren't typically the
subject of leaks. There were 50 substantive reports,
however, and as many as 19 so far have been leaked,
whatever that means.
I should also point out to you that as a matter of
record in this session a committee twice passed a
resolution attempting to deal with this situation.
Nonetheless, in both cases there were leaks. Without
putting any meaning to that word in particular, I have
no information for you as to how that information got
out or why, just that it happened. I guess to some
degree that presents something of a reality check for
you, Mr. Chair. The track record is not encouraging.
The Chairman: Thank you very much.
Before I go to
the list—and I have Randy White, Stéphane Bergeron,
and Joe Fontana at the moment, and I'll put the others
down as they come—I'd like first of all to welcome Roy
Bailey to our committee. Roy is here as a visitor, but
I understand he's going to become a regular member.
Roy, we appreciate having you here.
Diane, I have a stupid question. I try for my own
edification to listen in the language in which
presentations are delivered. So does outrage
Ms. Diane Davidson: Correct.
The Chairman: Okay. I would also like to say,
Rob, I'm delighted that none of our 56 reports appears
here. I congratulate my colleagues, although I suspect
that's because they're so unbelievably boring that no
one else is interested in them.
Mr. Randy White (Langley—Abbotsford, Ref.): Thank
you, Mr. Chairman. I am going to define leaks, give
you my position, and give you the answer to ending
I spoke seven times on a matter of privilege in the
House. I am sick and tired of doing that, and will not
do it any more. I spoke about the third report of the
justice committee, the fourth report of the fisheries
committee, the second report on the health committee,
the child custody report, the foreign affairs seventh
report, and the subcommittee on sports, all of which
were conveniently leaked.
I will go through the process as I see it, but I will
define for you what I think a leak is. It is where
in-camera discussion or material is disclosed in public
prior to being tabled in the committee or the House.
That is based on the integrity of all parties. After
19 out of 50 substantive reports, and the other reports
that were talked about, I don't believe the integrity
In the fisheries committee, for instance, just
recently we were not even provided the opportunity for
a minority report. I have advised the fisheries
committee that not only will they not be travelling
without debate in the House, but all of their reports
will be public henceforth. We are now aware that when
we bring in letters, for instance, asking for meetings
on specific topics under Standing Order 106(3), somehow when
we get the topic on the table in these committees the
meetings are being sent in camera. So it kind of
blocks the intent of what we're trying to do, which is
have a discussion on a specific issue.
I can also tell you that those meetings will be
public. Integrity to me is something that has to be
from all members and all parties. It is not there, so
I will join that game.
There is one way to prevent leaks, and that is to have
no process where leaks can be made. If you don't have
in-camera meetings or reports that are hidden behind
closed doors, you cannot have leaks. Therefore, I
consider it a fact that we will not have leaks.
The process of committees has always bothered me. I
guess this is why these so-called leaks are made.
Committees discuss issues. They go in camera to
discuss points related to the public discussions. What
happens then is that the voting process takes place.
Not having enough hands to vote, more often than not
the opposition parties see their issues not included in
reports. To get a one-up on the other parties, the
report is then conveniently leaked in public and is
talked about. Therein, it starts the issue across
Canada as a forerunner to the constant press
conferences that are going to come.
After the leak,
the report typically comes out in public and a press
conference is held by the government. The minister
responds to the report, and there is a press conference
on that response. Opposition parties are basically
forgotten in the exercise. Of course, later on the
minister tables legislation and there's another press
conference—“Boy, that was a great idea we had
there. Our committee looked after this.”
I see it is a one-sided exercise, and I can assure you
I am going to deal with this. I am in the process of
doing so already. There will be no more leaked
I want to ask Mr. Marleau whether he thinks my
definition of a leak is appropriate. I'll read it
again: A leak is where in-camera discussion or material
is disclosed in public prior to being tabled in the
committee or the House. And that is based on the
integrity of all parties.
I ask you that, Mr. Marleau, because I think the first
part of it is pretty clear. Really, a report or an
in-camera discussion is only as good as all of the members
who participate in that discussion.
The Chairman: Mr. Marleau.
Mr. Robert Marleau: It's a definition. I think it
does circumscribe what you might want to define as a
I might make a small suggestion to you about the
integrity of all parties. Maybe a better focus
would be the integrity of all members rather than the
parties represented in the House. In court, it might
be a little harder to assign a specific definition, or
even that rule in court as a party not being a
legal person. There's that dimension to it. I think
the focus has to come back to honourable members.
Mr. Randy White: For my next question, I always
thought that to prevent a leak you had to have
something that was leakable. I've heard members of the
government—and their staff, actually—question why
committees go in camera to discuss some of these
reports anyway. Shouldn't the contents of a fisheries
report or some other report be in public? Let all of
the positions be known, and if you lose your position,
then you lose your position, but you get a report out
On the idea of in-camera discussions for report
purposes, I could see having them when the budget is
involved, since you might have insider trading or you
might have somebody taking tax advantage of certain
sales of assets, those sorts of things. Wouldn't that
be more appropriate for in-camera meetings, as opposed
to an environmental report or a fisheries report?
Mr. Robert Marleau: Well, I alluded to that in my
opening remarks. If I may, I'll give you my
perspective on in-camera meetings, both in terms of
what I think they were designed for originally and what
they may have evolved into.
I think the original concept of closed-door meetings,
particularly when a committee had basically finished
its inquiry and wanted to draft a report, was to allow
the individuals around the table to articulate their
positions without the political penalty that might come
under the public glare of changing a position, of
adopting a position that might be different from one's
party's platform, or indeed of personal statements
one may have made in public that, through the
enlightenment of the inquiry, required joining in a
different recommendation. I think that dynamic of
trying to achieve a consensus and of allowing the
members to do so behind closed doors is at the very
essence of in-camera meetings.
From the media's point of view, I know a meeting
behind closed doors is still a hard concept to accept.
I'm not asking them to do so, but I think it's
something that has to be acknowledged. Without
necessarily labelling it as a secret-deal-making
exercise, the dynamics of human intellectual trade-offs
are a lot easier when they are made among honourable
members around a table for the benefit of that public
policy. That's not the interpretation a lot of people
put on it, but it's the one I would give you as a clerk
who has watched many an in-camera meeting.
Mr. Randy White: It's a consequence of getting
elected, I would say.
The Chairman: Thanks very much. We can come back
to you if we have to, Randy.
The order I have at the moment is Stéphane Bergeron,
Joe Fontana, John Solomon, George Baker, André Harvey.
Mr. Stéphane Bergeron: Mr. Chairman, in light of what Randy
has just said, I get the impression that as far as he's concerned,
this matter has been discussed and ruled on and solutions have been
found before this committee has really even got down to work. I'd
like to get back to the presentations our witnesses made because
they have been gracious enough to come here and share their views
on the subject with us.
For want of anything better, we consulted the experts. Ms.
Davidson stated clearly that in her view, a leak constituted
contempt of the House and a breach of House privilege. Beauchesne,
6th Edition, had the following to say about the premature
disclosure of a report in citation 877. (1):
877. (1) No act done at any committee should be divulged before it
has been reported to the House.
The publication of proceedings of committees conducted with closed
doors or of reports of committees before they are available to
members will, however, constitute a breach of privilege.
The second paragraph goes on to state the following:
(2) In Canada, [when] a question of privilege was raised concerning
the publication of a committee report before it was presented to
That's what I was alluding to earlier, not to a list of
previously reported leaks. I'm looking at how this matter has been
dealt with over time under the rules of parliamentary procedure.
What I've observed, and Ms. Davidson mentioned this in
passing, is that until now, when leaks have occurred—and the
number of such cases appears to be on the rise—people are
generally very reluctant to condemn the press for publishing the
leak. Ms. Davidson mentioned that some parliaments—I don't believe
she was referring to ours because in the past few years, this
hasn't been much of an issue—seem intent on tracing the source of
the leak because privilege has been breached. Some contend that by
failing to sanction this breach of privilege, we are encouraging
this kind of behaviour. In recent years, even here in Canada, the
number of such incidents appears to be on the rise because no
sanctions have been imposed.
Therefore, either we consider Randy's suggestion or we explore
some of the options advanced by the clerk and deal with this new
reality with the means available to us, in an effort to ensure that
House privilege is upheld. When a leak occurs, we cannot simply
say, as the clerk rightly pointed out, "I am powerless and there is
nothing I can do." We cannot allow House privilege to be breached
with impunity, as has been happening for a number of years now.
I'd like to raise a purely procedural question. In the event
a leak occurs and gives rise to a question of privilege in the
House, could the matter be referred to the Standing Committee on
Procedure and House Affairs so that the latter could attempt to
trace the source of the leak and eventually recommend some kind of
sanction? Is this an option?
Mr. Robert Marleau: That's one option we could consider,
although it does involve some risks. If we look at how speakers
have ruled since the 1950s, we see that they have always expressed
some concern about one committee investigating the activities of
another. As for identifying the person responsible for a leak,
speakers have never hesitated to state clearly that if the author
of the leak is named, they would have no choice but to rule that a
prima facie case of contempt exists and that the matter will be
referred to a committee. This provision is already in place and the
procedure to follow is fairly clear when it comes to cases of
contempt and all questions of privilege.
The problem lies with the preliminary investigation. Who
decides if an investigation should be conducted and if the person
responsible should be identified, whether that person is an MP or
a staff member? As Ms. Davidson stated, in other Commonwealth
jurisdictions, there has always been some reluctance to sanction
the party that published the leak without first conducting this
Perhaps we should discuss the matter of who should be called
upon to conduct this preliminary investigation and to determine if
any follow-up action should be taken. I'm not necessarily saying
that one committee should investigate the activities of another.
As Beauchesne and other experts contend, committees control
their own fate. If a committee feels that it has been the object of
another's contempt, then it should be the first to examine the
incident. For example, if an MP or staff member on the Health
committee were to leak some information, it would be up to this
committee to deal with the matter and to report back to the House.
The procedure to follow in such instances has been clearly set out.
Should committees have the authority to regulate themselves
more strictly in such cases or should some provision be made for
another kind of preliminary investigation? Judging from your
comments, you seem to be leaning in that direction. Should we give
some consideration to striking a special House committee with a
much broader mandate then that of the committee involved in the
leak? These are options we could consider.
Ms. Diane Davidson: There are a few other points I'd like to
make. As the clerk just stated, it is often more in keeping with
our parliamentary practices to let the committee whose material was
leaked conduct an investigation, because it controls its own fate
and it is responsible first and foremost for regulating and
monitoring its own activities.
Parenthetically, this practice is consistent with that
followed by other parliaments, notably in Australia and Great
Britain. The first step is to ask the committee where the leak
occurred to try and identify the source. This is also the initial
step taken by other parliaments.
You wondered about the type of sanctions that could be imposed
if ever the source of the leak was identified. I think the course
of action we would like to emphasize today is more preventive.
Perhaps it would be advisable to include a relevant provision on
contempt in the Standing Orders of the House, stating clearly that
the disclosure of confidential reports or of testimony given behind
closed doors constitutes contempt. The Standing Orders should also
state clearly that such breaches will be taken seriously and
sanctions imposed. I tend to advocate a preventive approach. If
ever the House had to impose sanctions of some kind, then obviously
these would be in keeping with our parliamentary practices and
would take the form of a reprimand, censure or exclusion. It would
all depend on the specific circumstances. In my view, the rules
governing the imposition of sanctions should be very clear and the
most comprehensive kind of investigation should be conducted.
Mr. Stéphane Bergeron: I agree. My concern is that if we
simply include this in our Standing Orders, instead of firmly
acknowledging this as part of our parliamentary rules and
practices, it won't make much of a difference. As the clerk pointed
out, the issue here is who will be responsible for the follow-up
One recognized principle is that committees control their own
destiny. I often have a problem with this. In some respects and in
certain instances, we are subject to the arbitrary will of the
majority on the committee, and sometimes to the arbitrary will of
the committee chairperson. This has happened in the past. Unlike
the situation in the House, the chair of a committee is not elected
by secret ballot. There are some differences.
That having been said, it was my understanding that this
committee was a kind of super committee like the one you were
talking about and that it was responsible for dealing with matters
relating to breaches of privilege. While we may be only one
committee, the fact remains that we deal with issues relating to
privilege in the House. When a breach of privilege occurs, it is
not only the privileges of members of this committee that are
affected, but the privileges enjoyed by all members of the House.
We could decide that it is the responsibility of the committee
whose report was leaked to deal with this matter. However, I
respectfully submit that such cases constitute a breach of the
privilege of all members of the House.
The Chairman: Stéphane, I'm sorry to cut you off,
but perhaps we could keep the pace going, and we can
come back. I know you have a special interest in this.
Next is Joe Fontana, followed by John Solomon, George Baker,
and André Harvey.
Mr. Joe Fontana: If we think we could solve the
problem of leaks in committees and in the House, then
maybe we can pass on our great insight to cabinet and
to caucuses, which leak all the time.
The Chairman: By the way, the chair is still here.
Mr. Joe Fontana: Yes, it's nice to see you.
The Chairman: Mention me from time to time.
Mr. Joe Fontana: You don't mind if I talk to
The Chairman: Well, do it through me.
Mr. Joe Fontana: All right.
Mr. Stéphane Bergeron: I didn't take it
Some hon. members: Oh, oh.
Mr. Joe Fontana: I would hope, Mr. Chair, that
this discussion would be much broader than trying to
find out who leaked a particular report and then laying
out what we're going to do with that particular person
based on some pretty archaic stuff of
privilege and contempt. I think the clerk
has essentially laid out—and Randy started to talk
about it too—a broader discussion of really what do we
want to do with regard to communication.
In most cases I think the rule ought to be that
everything ought to be open. I've sat on committees
where we've never gone in camera to discuss final
reports. The exception may very well be that because
the material is so sensitive, whether it's from the
finance committee or other committees, a report should
be written in in-camera meetings until such time as
it's disposed of in the committee or in the House, but
we ought to totally open up the system. I think that's
where the clerk was taking us.
We realize that you're always going to have leaks. It
happens all over the place. It's not always, I don't
think, government members who are leaking reports. In
most cases you're assuming those reports are
favourable to the government. I would suggest that
sometimes the opposition has as much to gain, because
we're in this political game of leaking reports that
would make the government look bad. That's
the game we're in.
I think we've moved beyond that. I think the public
understands politics. Maybe the senators in the United
States don't realize that yet, because they're behind
closed doors to find out whether they want to find
someone guilty or not guilty, and they are still way
back in the old ages. I think the
public is much more mature.
To blame the media or administrators or to look for
someone who is leaking reports, I don't want to get
into that game. If 38% of the reports are being leaked
now, we'll be meeting in special sessions to find out
who the culprits are, and what do we do with them when
we find them? Are we going to kick them out of the
House? Are we going to sanction them? Are we going to
tell them they can't run any more? Are we going to
impeach them? What are we going to do with these
The Chairman: Decapitation, that would silence
Mr. Joe Fontana: I suggested the broader subject,
and I hope that's where we're going. We heard that
perhaps the Standing Orders and the way we used to work
are not relevant today.
Randy said that from here on in there won't be any
leaks. I don't know what that meant. Does that mean,
Randy, that you're proposing that everything be in
public? If that's where you're going, I like that
Mr. Randy White: Yes, I am.
Mr. Joe Fontana: Therefore, nothing leaks. It
doesn't matter, because everything will be in public.
There should always be a caveat. Yes, we should have
one if there is a misunderstanding about the code of
ethics on behalf of the chairs or the members in
relation to the duties we hold in office when we take
that oath. There are certain things that are going to
be sensitive. But I think we've come of age in terms
of communication, and most things should be in public.
The exception should be that something is in camera
because of its sensitive nature.
I think the debate we're going to have today is
about how to change this system. I'm not interested in
looking for the perpetrator who leaked the report or
in finding a scapegoat and taking him to task.
So, Mr. Chair, I seek your guidance.
The Chairman: As Chair, I think that's the purpose
of our inquiry, and I suspect Randy agrees. It's not
to deal with individuals or specific leaks; it's to
deal with the general matter.
Mr. Joe Fontana: The reference seemed to be a
little more indicative of the idea that we were going
to go out on a witch hunt in order to start trying to
The Chairman: No, from the sense of what I've
heard today, it's not that. It's not some sort of
witch or wizard hunt, right?
Mr. Stéphane Bergeron: We're not at that point
Ms. Marlene Catterall (Ottawa West—Nepean, Lib.):
Thank you, Peter.
The Chairman: That's okay. I'm glad you noticed
Mr. Joe Fontana: The only question I do have
relates to when committees are dealing with witnesses.
Most of the time those witnesses appear in public. As
to whether or not that privacy issue applies, that's
the one that really intrigues me, more so than the
privilege or contempt issues of the members of the
I wonder if you could just further elaborate on what
responsibilities we have to those witnesses who may
testify in public, but when we make a report that's
still not yet in the public domain, so to speak,
because it hasn't been given back to the committee or
the House of Commons. Might that cause some problems
for us with regard to those privacy issues surrounding
those witnesses? Or is it that because they've agreed
to appear in public and have said something in public
we don't have to really worry about the privacy issue?
The Chairman: Ms. Davidson.
Ms. Diane Davidson: If someone appears in
public and the committee insists that the testimony be
given in public, I don't think there are any privacy
issues at play any longer. However, the point I
was trying to make in my presentation was that there
could be instances in which the committee finds that
the testimony should be received in private because of
privacy issues. There could also be issues of national
security or other types of issues that require the
committee to meet in camera.
Mr. Joe Fontana: That was my very point, but one
should say that right from the outset. Perhaps we
should set some new guidelines in the Standing Orders
as we debate what should be in camera and what
shouldn't be. Perhaps we should lay out what the
criteria might be for those things to be held in
Ms. Diane Davidson: Correct.
Mr. Joe Fontana: —in camera, until such a time,
because of privacy issues or national security issues,
as Randy correctly pointed out.
Having been in Parliament when that infamous leak on
Michael Wilson's budget occurred and they tried to take
the guy from Global to court and so on—
The Chairman: Was that a committee?
Mr. Joe Fontana: It wasn't a committee, but it
The Chairman: It was a leak.
Mr. Joe Fontana: It was a leak from somewhere.
Ms. Diane Davidson: I would also like to make just
a brief comment about having draft committee reports in
public. It should be understood that if that is the
course you take, the views expressed in committee are
not going to be the views of the committee until its
final report is put to the House. Therefore, the
reports made by the media on a statement by a member of
Mr. Joe Fontana: They should have a disclaimer.
Ms. Diane Davidson: —are not on the views of the
committee. There should be a distinction there in
terms of what exactly it is we are reporting when
we are having those public meetings and reporters are
writing stories on those meetings.
The Chairman: Joe, are you okay?
Mr. Joe Fontana: Yes.
The Chairman: John Solomon, and then George Baker.
Mr. John Solomon (Regina—Lumsden—Lake Centre,
NDP): Thank you, Mr. Chair.
The Chairman: Sorry, John.
Mr. Marleau, did I cut you off?
Mr. Robert Marleau: Yes, I'm sorry, Mr. Chairman,
but before Mr. Solomon goes on, I wanted to just
briefly add a point in the context of these three
changes. I think it might be significant to the
purposes of your inquiry.
My comment has to do with the context of open meetings
or closed meetings, of in-camera meetings or
non-in-camera meetings, of confidential reports and two-tiered
reports, if you will, those asked for and those not
asked for. I think there is a fundamental issue
you have to look at. Assuming that a leak implies a
leak at the core, the distinction you need to make
between those three kinds of positions is that a leak
is a breach of trust,
either by a member or a
staffer or by a witness, who could breach the trust of the
committee, being interviewed in the context of an
in-camera meeting, for national reasons or for whatever else.
When you're looking at the kinds of sanctions or
inquiries or that sort of thing, it's a very narrow
relationship, I believe, in terms of the leaker.
The publisher is another
story. I think there's a general disposition around
the table—so far, anyway—that the publisher is another
story entirely. The staff is another story. It's also
discipline, professional service, oaths, etc. You
alluded to oaths. As members of the staff of
the House of Commons, we all take an oath of secrecy.
I think you can debate the one side of open and closed
meetings in that kind of context, but you could have a
witness who breaches your trust, and then if a member
breaches the trust of the committee in an in-camera
meeting with a witness, you may cause a chill effect
for a whole series of witnesses you're going to
interact with in the future.
I'm not trying to make light of the issue when I'm
saying that communications is important and that maybe
we can be more aggressive in supporting the
communications strategies, but at the end of the day
I think you're dealing with a breach of trust when
there's a leak, when someone feels offended that there
was a leak, a legitimate leak defined in whatever way
The Chairman: John Solomon.
Mr. John Solomon: Thank you, Mr. Chair.
I appreciate your comments, Mr. Marleau, Mr. Walsh,
and Madam Davidson.
I'm going to give my view on the issue. This is not a
caucus view or a party view.
With respect to committee
reports, I've not had a great deal of unhappiness with
the fact that committee reports are marketed prior to
sale, mainly because what happens in committee is that
you have a number of witnesses appear before you, Mr.
Chair, to make recommendations. There is a host of
recommendations and then people ask you, “What about
those recommendations? What do you think? Should they
be in the report?”
Or they say they heard those recommendations were in
the report and they ask you what you think about the
recommendation Mr. Smith made. So you say you liked
Mr. Smith's recommendation and you hope it's in the
report and all of a sudden it's viewed as a leak.
Just in my personal view, committee reports are not,
as has been mentioned, government policy that would
profit an individual or corporation immediately, like a
budget. A budget is secret. It has to be, because
when you bring the budget down and you're going to
increase or decrease a tax at midnight on February 16
or do something that would adjust the stock market,
individuals or corporations can benefit from that. I
think those things should be kept secret.
When a committee makes recommendations, those
recommendations end up in the library with all of the
other committee recommendations that have been made
since the beginning of Parliament. Sometimes they pick
out one or two from the 846 recommendations of the
So I'm not as upset as some with respect to leaked
Having said that, I am upset and concerned about
in-camera meetings held by committees out of which come
recommendations that have nothing to do with the input
from the witnesses over the course of the hearings.
This has happened. The best example I can use is the
drug patent legislation recommendations that came out
of the industry committee. The report was tabled
during the week they called the election in 1997 and
the recommendations there had nothing to do with the
majority of the opinion prior to the in-camera meeting.
The point I want to raise is that I have not reviewed
or analysed all these leaks, so I wouldn't be able to
tell you whether there are substantive leaks, whether
there are leaks from in-camera meetings or whether this
is just people being asked about recommendations. I'd
like to have some idea from Mr. Walsh as to whether
these are just notations in the media or
substantive leaks from confidential in-camera meetings.
Also, why weren't the other 62% of the committee
reports leaked? Were they as irrelevant as the ones
that were leaked?
Mr. Randy White: Sixty-two percent boredom.
Mr. Rob Walsh: I think what you're asking, Mr.
Solomon, is whether it's to be assumed that all of
these 19 reports were considered by a committee in
camera, so that when they were subsequently divulged
there was a breach of confidentiality. I'm not able to
say whether all of these were done in camera. I could
find that information for you.
It is the case, however, that a committee might
consider a report in public and adopt a report in
public although previous discussions were in camera.
At that public meeting where the committee adopts a
report, the report remains confidential under the
rules, as the
clerk and Ms. Davidson have explained to you, until it's
tabled by the committee in the House. So in that sense
you have a breach of confidentiality.
In this case, if I were to re-examine the list more
closely, I would probably find that in the vast
majority of all of the cases we're talking about
confidential in the former sense—in the sense that the
report was discussed at in-camera meetings and the
contents of the report were sensitive or seen to be
sensitive by the committee, and it was expected that it
would not be divulged to the press before the committee
had taken a decision on it.
I don't think I would find many cases here where we're
calling a leak a situation where the committee adopted
a report, it was a matter of a day or two before it was
going to table it, and it came out in the press before
it was actually tabled. Although that constitutes a
breach of confidentiality in the parliamentary sense, I
don't think that's what we have considered a leak in
the sense of divulging confidential information to the
press. We're talking here, in most cases, of material
the committee wanted withheld from the press until they
made a final decision, but somehow the material got to
the press before that point was reached.
The Chairman: John.
Mr. John Solomon: Journalists have a unique
relationship with politicians—at least political
journalists. They want to cover politicians, and
politicians want to talk to journalists about things
that are happening. If a journalist is monitoring the
committee and they ask these questions during the
course of time, I don't consider those sorts of
comments prior to releasing the report that serious.
However, if journalists start following the report and
want to get a quick story—because there's a lot of
competition in journalism these days—then they're
talking to the politicians, and perhaps that is a
problem. I think we have to be more mindful, as
politicians who have some interdependence with other
sectors of the economy, that we don't get too carried
away with this.
I do favour a more public preparation of reports, with
maybe in-camera meetings—as Mr. Marleau has said has
been the precedent and is very important—to put your
views on the table without having them recorded
publicly and come to some consensus.
So I just want to put that on the record, particularly
since I personally moved a bill to make the Board of
Internal Economy's meetings public. They are public in
Saskatchewan, for example, and there's no problem. In
fact the Board of Internal Economy in Saskatchewan is
running much better, although the media kind of lost
interest because it's a regular committee meeting, like
all the rest we come to.
I don't mean to put a pitch in for my private member's
bill to make the board's meetings public, but I
certainly support making the committees more
public than they have been to alleviate some of these
penalties. We'd have a lot of MPs in the penalty box.
I wouldn't want to have seven Liberals in the
penalty box in a narrow majority government if we had
to vote, and end up with an election, for example. So
we have to be mindful of those things.
Mr. Joe Fontana: I hadn't thought of that.
The Chairman: Thank you. It's George Baker, André
Harvey, Marlene Catterall, and then if there's time,
Mr. George S. Baker (Gander—Grand Falls, Lib.):
Over one-third of the defined leaks here today came
from the committee I chaired before I resigned.
Mr. John Solomon: George can go to the penalty
box for a while.
Mr. George Baker: I can see the difficulty one
would have in mapping out a standing order that would
be fair. Let me give you an example. One of these
links was of the observer reports. The Government of
Canada told the committee members they could have a
look at some of the observer reports, but they weren't
allowed to report on them or talk about them. The
reports were shown in camera. Sometimes the government
does this for various reasons. This was because of
what they called commercial confidentiality of
information the committee was requesting, which is
utter nonsense. Every government, not just Liberal
governments, but PC governments and so on, has claimed
the same thing over the years.
So of course this was not satisfactory to the
In the meantime, we had an observer who leaked an
entire year's observer reports to an official of the
Department of Fisheries and Oceans, whom he knew would
leak them to the committee. It was leaked to the
committee, and we considered these reports in camera.
We decided as a committee to leak it to the press.
Some hon. members: Oh, oh.
Mr. Randy White: Contempt.
Mr. George Baker: Now the reason we decided to
leak it to the press is that we could not put it in a
report because it was confidential. It was considered
to be commercially confidential, as judged by the
government. But before we could leak it to the press,
we discovered in the next morning's newspapers that it
had already been leaked.
Some hon. members: Oh, oh.
Mr. George Baker: But it was not leaked by an
MP. It was the job of an exuberant reporter, a
digging member of the press. I have a—
The Chairman: Some reporters' fishing expeditions
are more successful than others.
Mr. George Baker: Yes.
So it would be very
difficult to frame a standing order that says to a
standing committee, if a report or information that
would be contained therein is leaked prior to its
presentation to the House of Commons, that would be
considered to be a matter of contempt of Parliament. In
this particular case the committee had already decided
to leak it, but we didn't. It was already leaked by a
member of the press.
So I think in a lot of these cases it's not members of
Parliament. I can tell you that of the seven major leaks
out of the fisheries committee, at least five of them
were not leaks at all, but were because of reporters
who were digging and digging and digging.
Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies,
Lib.): Doing their job.
Mr. George Baker: Just doing their job. That's
What is the most
stringent penalty for leaking committee reports in
other jurisdictions under what we consider to be the
British parliamentary system? If we look at Britain,
Australia, and so on—
Mr. Joe Fontana: Exile.
Mr. George Baker: —if a member is judged to have
leaked a report, can he be expelled from Parliament? Do
we have any jurisdictions that do that?
Ms. Diane Davidson: Well, Parliament has control
over its membership, so of course, yes. Ultimately, Parliament
could decide to expel a member.
However, we have examples in other
jurisdictions. You asked
whether there were other sanctions. I can say
that in Australia they have a provision in their
legislation that someone could be fined—
Mr. George Baker: Fined how?
Ms. Diane Davidson: Up to $25,000. That was not
for the leak of reports, but more for the leak of
testimony or evidence that was considered to be very
sensitive. This is the more serious type of penalty.
Mr. George Baker: But of course you're asking
the committee to consider this in all of these options.
Twenty-five thousand dollars. Is there a jail term with
any of these?
Some hon. members: Oh, oh.
Ms. Diane Davidson: I have to tell you that I'm
not suggesting that the committee adopt the Australian
Mr. George Baker: No, you're asking us simply
to look at it.
The Chairman: George, the chair is here. You've
been there yourself.
Mr. George Baker: Mr. Chairman, I wonder if you
could ask the witnesses if there are jail terms
involved in some of these sanctions imposed in other
Mr. Robert Marleau: I believe there's a jail term
provided for in the Privileges Act of the
Australian House of Representatives for people who
Mr. George Baker: Of course Australia is
a part of what we define as the British parliamentary
The Chairman: People of very strong convictions.
Mr. George Baker: They abide by Erskine May and
they have their own Beauchesne's. They have the same
fundamental rules we have.
Most observers I think would agree they've progressed
in their procedures much further than we have as far as
committees are concerned, in allowing committees to
originate their own terms of reference and so on.
That's a personal judgment. Let me ask you....
In other words, government
backbenchers in Australia can ask questions on the same
The Chairman: I'm sure they ask through the chair,
Some hon. members: Oh, oh.
Mr. George Baker: Yes, they certainly do.
Through you, Mr. Chairman,
do these sanctions apply
to only select committees of the House of Commons
from whom the House is asking for a report on a
particular item, rather than standing committees, which
have a certain amount of independence and therefore
could have a committee report of just two lines?
The leaking of a two-line report that says “We
really have nothing to report” would not be
considered to be very serious.
Do you know if it is
only in the case of select committees
where the House has asked the committee
to report to Parliament on a certain item,
or does it cover all committees?
I'm referring to where the sanctions
would be a fine and/or jail term.
Mr. Robert Marleau: There are two issues here,
I think. In terms of the specific question you asked in
the context of Australia, there is the issue of
privilege where the House has sanctioned that a breach
of privilege has occurred and a contempt has been
committed. Then there's the statute upon which rests
the consequences, up to and including imprisonment.
It effectively is the courts that would make that
determination once the House has taken it
to the next level.
I just want to get back to your original comment
that we're based on the same body of rules
and precedents and practice. In Canada we have
no such legislation as was adopted in Australia.
Indeed, in my opening comments
my advice was to not go down that road.
The Chairman: Very quickly, George.
Mr. George Baker: Mr. Marleau has suggested to
this committee, as has the legal counsel
here, that we come up with a standing
order. That's what they've suggested.
The standing order and the other piece of
legislation defining sanctions go hand in hand in
other jurisdictions, amounting to a prison sentence and
Is Mr. Marleau suggesting, Mr. Chairman, that we
bring in not only a standing order but also
the accompanying legislation necessary to either
imprison the MP or to fine him or her?
The Chairman: I'm sure Mr. Marleau will come
back to that in response to other people's questions.
I would point out, Mr. Marleau, that I think we have
had cases of premeditated leaks—in other words, where
a committee has actually decided. So you should add that
to your list.
Mr. Randy White: Can we play golf and ride
horses in these prisons?
Some hon. members: Oh, oh.
The Chairman: André Harvey.
Mr. André Harvey (Chicoutimi, PC): Thank you very much, Mr.
Chairman. It seems to me that sometimes, we search for complex
answers to relatively simple problems. There may be some cases in
the history of our parliament where leaks caused some serious
problems. I recall when a detail of Mr. Lalonde's budget was
leaked, costing us an extra $200 million. There have been other
cases as well.
Personally, I don't think we can make our code of ethics any
clearer or enforce stricter rules. The effort that this would
entail would be out of line with the seriousness of the situation.
As Mr. Baker said, leaks sometimes occur for political reasons.
Sometimes, it's a question of floating a trial balloon or some such
thing. Perhaps there is a technical solution, one that would be
easier for the Speaker and clerk to control.
Obviously, committee members work on preliminary reports and
leave here with draft reports. They could always turn over this
material to a reporter. Perhaps stricter controls could be imposed
within the confines of the committee. We could give more
responsibility to the clerks and to the chairs of our respective
committees so that they can deal with this problem. We could
occasionally remind members of their duty to keep committee
business confidential, knowing full well that quite often...
Mr. Stéphane Bergeron: There will still be leaks.
Mr. André Harvey: Exactly. Quite often, a leak isn't
necessarily detrimental to the interests of Canadians. If a partial
or complete report is disclosed at the draft stage, the reaction to
it can sometimes have a beneficial effect.
If we undertake to tighten up our practices, that will only be
the beginning of it and I don't believe our actions would be in
line with the seriousness of the problem. Personally, I don't see
this as a serious problem. While we should be prepared to shoulder
more responsibility, so too should the clerk. If draft reports are
distributed at 10 p.m. for our consideration, then clearly we're
finished with them. However, in small communities, reports are
tabled and then collected. The list we have identifies 11 reports
that were leaked.
I think we're focusing too much on a situation that isn't that
serious. In terms of the budget or our consideration of the subject
at hand, leaks don't necessarily have any serious consequences.
Lastly, I think one solution would be for us not to leave our
draft reports lying around. In that case, any leaks that occur
would only be partial, or verbal.
That's my position on this issue, Mr. Chairman. I think we're
exaggerating a little. Perhaps we need to monitor our actions when
we meet as a committee. I feel this matter could be resolved quite
simply and we are only complicating things unduly. I'm not overly
concerned about this.
Mr. Robert Marleau: I would remind you, Mr. Harvey and Mr.
Baker, that you would be wise to focus more on the Standing Orders.
Since the Standing Orders are silent on the subject, I wouldn't
want anyone to infer from my remarks that I harbour any pre-
conceived ideas as to what the Standing Orders should say on the
matter or of the kind of sanctions that should be imposed. It would
be up to the House to determine what action it believes should be
taken under certain circumstances. A distinction could be made
between a report ordered by the House and a committee report that
the House has no interest in debating in the future, even though
that report may be no less important in the eyes of the committee
or of the public.
As for bringing in a legislative initiative, I believe I
stated clearly at the outset that I don't think we should pursue
this option too vigorously because the Australian experience has
not proven to be very positive.
I think the jails are empty, Mr. Baker, as a
consequence of that statute. I don't think the
jailers have had much business as a consequence of
I must admit that I had not thought of leaks as being
a component of your communication plan. It could be
very effective, because if it's suspected to be a leak,
it appears on the front page; if it's tabled in the
House, it appears on page 44.
The Chairman: Is that alright with you, Mr. Harvey?
Mr. André Harvey: Quite alright, Mr. Chairman.
The Chairman: We'll now turn to Marlene Catterall, and
if there's a little time, the chair would like to ask
Ms. Marlene Catterall: As a Pisces, I have a great
interest in anything the fisheries committee does, and
I have a great interest in anything to do with water,
so all this talk about leaks is really exciting to me.
Some hon. members: Oh, oh.
Ms. Marlene Catterall: But water has a habit of
being kind of homogeneous, and it seems to me that at a
minimum we have some confusion and contradictions in
the practices to clear up here.
If I can just go to Beauchesne's, under section 850 it
says “A committee...has the right to sit in private
and have its proceedings protected by privilege”.
It goes on to say “The final decision of whether
to sit in camera, however, rests with the members
themselves”. Now, I've never seen a committee
take a decision to go in camera, but that implies that
in fact they should be taking a decision to go in
On the other hand, under section 877 it says “No act
done at any committee should be divulged before it has
been reported to the House”. Now, if a committee
holds its meetings in public, the content of those
meetings is divulged. There is a written record of
those meetings and every single thing that was said at
So we have a clear contradiction here. The committee
may choose to go in camera. That also says it may
choose not to. Therefore, it may consider reports
without going in camera. On the other hand, you're
saying it's contempt for those reports to become public
before they're reported to the House. So how do we
explain that contradiction? How can we possibly call
it contempt when specifically a committee may or may
not go in camera at its discretion?
Mr. Robert Marleau: It's a contempt when the House
has decided it's a contempt. It's not a contempt until
then, if I can make that distinction. It can be a
contempt for premature disclosure of the committee's
You're quite right when
you allude to the confusion this creates. You can't
come to the floor of the House after this meeting and
engage the House in the proceedings of this committee,
because the evidence of the committee has not been
reported back to the House. That's one aspect of
protecting the integrity of the proceedings of the
Ms. Marlene Catterall: But it is public.
Mr. Robert Marleau: But it's a public meeting.
Ms. Marlene Catterall: [Inaudible—Editor].
Mr. Robert Marleau: That's right. And the citizen
can write about it, but no member can go to the chamber
and debate that issue, because the integrity of those
proceedings has been conferred upon the committee.
Part of that statement in Beauchesne is to protect the
integrity of the committee process. And if a committee
decides to do its report in public—as you say, it is a
“may”, and the Standing Orders are silent—as they do
many times, most of the time, with the bills, then it's
public knowledge. But you still can't come to the House
and engage the House in those proceedings until the
House has the full report and the evidence attached
That's why I think a statement in the Standing Orders
about the House's expectations would help clarify and
maybe dispel some of that confusion.
Ms. Marlene Catterall: So Mike Scandiffio can
discuss this report in The Hill Times, but the
House, which created this committee, gave it its
mandate, cannot discuss its work.
Mr. Robert Marleau: That's right—not until the
committee has reported and the evidence is before the
Ms. Marlene Catterall: So we've really got some
things we've got to clear up. So whether it was
leaked or something else, it's...[Inaudible—Editor].
I would be very interested in what any of you know
about what other parliaments do, what options we might
be considering. I'd also be interested in some further
feedback, not right now, but.... It's evident that a
number of committees have done their reports in public,
and therefore made them public by the very fact of
considering them in public. Has that ever presented a
problem? Have any of those reports ever been leaked?
Mr. Robert Marleau: In that kind of context, nobody
is offended; therefore there's no complaint. The House
would look at the evidence of the committee, and if the
committee had made a decision in its own wisdom to be
public, there cannot be a contempt. So it's the
judgment of the House.
What goes on in other jurisdictions right now, from my
review of it and from talking to some of my colleagues
across the Commonwealth and across the provinces as
well, save Manitoba, which for some reason has not had
a problem historically with leaking of committee
reports.... I don't understand why, and neither do they.
But across the Commonwealth it's very similar. The
most recent report in Great Britain was in 1990 at
Westminister, where again the leaker could not be
identified. It was suspected to be a member. But all
the committee stated that no action be taken against
the publisher. Still, the committee reserved in the
future to make its most severe judgment for members who
breached that trust. That's all they said.
As Ms. Davidson was saying a little earlier,
ultimately the House could expel a member for a
breach of such trust, if it chooses to do so in the
context of the disciplinary powers that exist right
now, save imprisonment, which our House traditionally
has not had the power to do.
The Chairman: I wonder if I could just ask Rob
Walsh, given that at our next meeting we're going to
have the chair of the liaison committee, who'll be
representing the chairs, is there anything else you'd
like to say with respect to the clerks? I thought of
asking Carol, but I think it might be better if I asked
Mr. Rob Walsh: I know the question has occurred to
some of the members.... I shouldn't say I know. I suppose
the question has occurred to some of the members of
this committee, and every other committee that's found
itself with a report that's been leaked, that
the leak might have originated with staff.
I am quite confident
that in virtually every case, if not in fact in every
case, this is not the case.
The committee clerks are well aware of the
confidential nature of these reports, particularly
substantive reports, which the committee has considered
in camera and where there is obvious sensitivity, but
also in the larger context of those reports that were
not considered in camera. These reports are handled as
confidential documents; they're stamped as confidential
documents. They are not distributed to any third
parties. They're given to members of the committee who
might ask for a copy, but they are handled in a very
restricted fashion as confidential documents right up
to the tabling in the House.
I just want to assure the committee that we are
vigilant about that. If there were any
suggestion that these reports were not being leaked but
handled carelessly, in such a manner as to invite the
unauthorized disclosure of the reports, we would act on
that very closely and very quickly.
I have not heard of any such report coming
to me, but we are vigilant about that.
The Chairman: I appreciate your saying that.
Colleagues, I would like to thank our witnesses, Robert
Marleau, Rob Walsh, and Diane Davidson. It's been very
It may well be, Mr. Clerk, that we may ask you to come
back if that's appropriate.
Colleagues, Stéphane asked at the beginning about some
notes. It seems to me, and there was a request from
Marlene, that our researcher will look at the
matter of some notes, particularly with respect to
other jurisdictions, which was Marlene's request.
Stéphane, we'll see how that works when they're
Again, I thank our witnesses. I thank the members of
We meet again next Tuesday at 11 a.m.
in the same place, and our main witness is Bill Graham,
chair of the liaison committee.
The meeting is adjourned.