STANDING COMMITTEE ON PROCEDURE AND HOUSE AFFAIRS

COMITÉ PERMANENT DE LA PROCÉDURE ET DES AFFAIRES DE LA CHAMBRE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, February 11, 1999

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[English]

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 Commons.

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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 expertise.

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 Act.

Are you comfortable with that?

[Translation]

Stéphane Bergeron.

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 from members.

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.

[English]

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 it.

I understand the point you're making, but that's the reason there are no notes today.

[Translation]

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.

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[English]

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 them.

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 us?

[Translation]

Mr. Stéphane Bergeron: Since I'm not a time traveller, we'll have to live with this, Mr. Chairman.

[English]

The Chairman: Thank you very much. Colleagues, bear it in mind, and I'll come back to it at the end of the meeting.

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.

[Translation]

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 leak.

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.

[English]

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.

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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 thereon.

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 have occurred.

[Translation]

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 the House.

[English]

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 reports.

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 committee.

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.

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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 the clock. 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 report.

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 that road.

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 personal one.

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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”.

[Translation]

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.

[English]

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 communications.

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.

[Translation]

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 parliaments.

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 like ours.

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.

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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.

[English]

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 such contempts.

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.

[Translation]

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.

[English]

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 before you.

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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 mean contempt?

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.

Randy White.

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 leaks.

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 is there.

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.

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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 reports.

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 leak.

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 of it.

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.

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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.

[Translation]

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.

Beauchesne continues:

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 the House.

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?

• 1155

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 preliminary investigation.

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 action.

• 1200

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.

[English]

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 Stéphane—

The Chairman: Well, do it through me.

Mr. Joe Fontana: All right.

Mr. Stéphane Bergeron: I didn't take it personally.

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 people?

I'd suggest—

The Chairman: Decapitation, that would silence them.

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 idea.

Mr. Randy White: Yes, I am.

Mr. Joe Fontana: Therefore, nothing leaks. It doesn't matter, because everything will be in public.

• 1205

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 find someone.

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 today.

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Thank you, Peter.

The Chairman: That's okay. I'm glad you noticed that, Marlene.

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 House.

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 confidence—

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 was—

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 the committee—

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.

• 1210

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 you want.

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 report.

So I'm not as upset as some with respect to leaked reports.

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.

1215

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, the chair.

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 committee.

• 1220

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 one problem.

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 practice.

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 jurisdictions.

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 violate.

Mr. George Baker: Of course Australia is a part of what we define as the British parliamentary system.

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 level as—

The Chairman: I'm sure they ask through the chair, though, George.

• 1225

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 fines.

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.

André Harvey.

Mr. Randy White: Can we play golf and ride horses in these prisons?

Some hon. members: Oh, oh.

The Chairman: André Harvey.

[Translation]

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.

• 1230

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.

[English]

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 that legislation.

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.

[Translation]

The Chairman: Is that alright with you, Mr. Harvey?

Mr. André Harvey: Quite alright, Mr. Chairman.

[English]

The Chairman: We'll now turn to Marlene Catterall, and if there's a little time, the chair would like to ask some questions.

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 camera.

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 them.

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 proceedings.

• 1235

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 committee.

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 thereto.

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 House.

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 you.

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.

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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 interesting.

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 available.

Again, I thank our witnesses. I thank the members of the committee.

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.