Unsatisfactory Ruling

In recent debates, NDP MP Libbie Davies asked the Speaker of the House of Commons to force the government ["Canada's New Government"] to table the handbook that it had printed and given out to Conservative parliamentary committee chairs about how to obstruct meetings and, more importantly, tamper with witnesses:

Mr. Speaker, I rise today on a question of privilege, specifically to claim that a contempt of the House may have occurred in the form of a document being crafted by the government that tells committee chairs to tamper with witnesses coming before committees.

She raised this as a question of privilege, as previous attempts to get the Prime Minister to do so voluntarily had failed.

Her position was that according to a National Post article by Don Martin, this handbook apparently instructed committee chairs to:

select party-friendly witnesses, coach favourable testimony, ... [chairmen] “should ensure that witnesses suggested by the Conservative Party of Canada are favourable to the government and ministry,” ... chairmen should also seek to “include witnesses from Conservative ridings across Canada” and make sure their local MPs take the place of a member at the committee when a constituent appears, to show they listen and care, ... chairmen should “meet with witnesses so as to review testimony and assist in question preparation.

Davies asked that the Speaker compel the Conservatives to produce this document, because the coaching of or tampering with witness testimony is in violation of parliamentary traditions:

page 132 of Erskine May's 21st edition, under the heading of “Tampering with witnesses”, states:

A resolution setting out that to tamper with a witness in regard to the evidence to be given before either House or any committee of either House or to endeavour, directly or indirectly, to deter or hinder any person from appearing or giving evidence is a breach of privilege has been agreed by the Commons at the beginning of every session since 1900, and there have been numerous instances of punishment for offences of this kind.

Corruption or intimidation, though a usual, is not an essential ingredient in this offence. It is equally a breach of privilege to attempt by persuasion or solicitations of any kind to induce a witness not to attend, or to withhold evidence or to give false evidence.

This matter was considered in 1935 by a committee of the Commons which reported that, in its opinion, it was a breach of privilege to give any advice to a witness which took the form of pressure or of interference with his freedom to form and express his own opinions honestly in the light of all the facts known to him; and the House resolved that it agreed with the committee in its report.

I wish to submit that the British parliament has clearly seen the need for impartiality of witnesses and has actually made it a breach of privilege to interfere with witnesses in any way that would affect or coach their testimony. The question that arises is whether those rules apply here. I believe they do and that they should.

In the sixth edition of Beauchesne's Parliamentary Rules and Forms, citation 32 on pages 13 and 14, it explains that the privileges of the United Kingdom parliament were effectively transferred to
this House:

The right of the Canadian Parliament to establish its privileges is guaranteed by the Constitution Act and
the privileges thus claimed may, at present, not exceed those of the United Kingdom House of Commons.

(2) Parliament, in 1868, laid claim to all of the privileges of the United Kingdom House of Commons without specifying their exact extent.

Citation 32(4) states:

As Parliament has never delimited the extent of privilege, considerable confusion surrounds the area. Recourse must therefore be taken, not only to the practice of the Canadian House, but also to the vast
tradition of the United Kingdom House of Commons.

Therefore, witnesses before committees share the same privilege of freedom of speech as members in the U.K. and here. Committee privileges are covered in basically the same way in Ottawa in our House of Commons and in Westminster in terms of the powers of committees to
decide questions of privilege and in the ways that members' privileges apply as well. Even the procedure for reporting a breach of privilege is almost identical here in Canada to what it is in Westminster.

Mr. Speaker, you may question whether the applicability of the British rules against molestation, intimidation or tampering with witnesses applies here but I would contend that they do apply,
as laid out in Erskine May.

Since it is alleged that the government has published a committee manual that instructs
committee chairs to behave in a way that would alter the testimony of a witness before a committee, I submit that a breach of privilege and a contempt of Parliament may have taken place and, therefore, we must look into this matter immediately.

Mr. Speaker, I look favourably on your submission and I am prepared to move the appropriate motion, submitted to you earlier today in writing, should you find a favourable ruling to this question of privilege.

CPC House Leader Jay Hill replied to this by saying that opposition parties in the past have employed procedural tricks, including filibustering, to delay or block legislation and therefore, a concerted attempt by the government itself to block inquiries into such mundane subjects as complicity in war crimes, by subverting the entire work of parliamentary committees is just more of the same.

The opinion that mattered, however, was the Speaker's, and this was his response:

Had there been some evidence of tampering with a witness, I might have found there was a question of privilege. But there is no evidence whatsoever. What we have is a suggestion that some internal memo, manual or book, contains some suggestion that chairs should meet with witnesses. That is the most we have.

If some hon. member prepared a memo urging members to come into the House and raise phony questions of privilege, are we to take that as some kind of breach of the privileges of members of the House? I do not think so and I suspect such a thing might have happened before. I do not know but I suspect it might have.

I am not prepared to find a question of privilege on the basis of an article in a paper that
suggests there may have been a phrase in a document or manual that says that chairs should meet with witnesses to discuss their testimony.

Until there is evidence of tampering with witnesses, I do not believe that the Chair can find that there has been a breach of members' privileges. There is no such evidence before me and accordingly, I do not believe there is a question of privilege here.

I find this to have been an unsatisfactory ruling for a number of reasons: One, because he denigrates the importance of the charge, or the seriousness of the charge because it comes from "an article in a paper that suggests there may have been a phrase in a document or manual that says that chairs should meet with witnesses to discuss their testimony," as if the fact that this chicanery was discovered and reported upon outside of Parliament has anything to do with the seriousness of this assault on Parliament's abilities to do its work. Secondly, I think that it is unsatisfactory because the Speaker insists on being provided with proof of evidence of tampering, when the question is to verify whether or not the government is instructing chairs to tamper with evidence. Thirdly, I think that so far, the arguments that "everybody does it" misses the enormity of the situation as Davies presents it. This is not a question of the government using procedural tricks that are legal, just as the opposition parties use legal, procedural tricks, this is a case of a party document, printed by the government party, instructing its members to break the law.

In response to a question to compel the government to show that it conspired to commit a crime, the Speaker has essentially said; "Let's wait for there to be a crime committed and for which we then find a smoking gun. Then will I compel the government to expose itself."

Thanks for nothing.