(SCC0036)

Written evidence from the Library of Parliament – Canada

1.  What powers do investigative committees in your Parliament have to summon witnesses and call for the production of documents? Are these powers set out in legislation or in standing orders?

At the Parliament of Canada, the Standing Orders of the House of Commons and the Rules of the Senate of Canada set out the powers of parliamentary committees to send for persons, papers, and records.[1], [2]

In general, the rules and practices governing parliamentary committees are rooted in the Constitution, the Parliament of Canada Act, orders of reference and instructions from the respective chambers, the Standing Orders of the House of Commons, the Rules of the Senate of Canada, rulings by the Speaker of the House of Commons, the Speaker of the Senate and committee Chairs; and by practice. [3]

Standing Orders of the House of Commons

In the House of Commons, the most important body of written rules governing committee proceedings are the Standing Orders. [4] Chapter XIII of the Standing Orders focuses specifically on committees. In particular, Standing Order 108(1)(a) provides standing committees with the authority to send for witnesses and to call for documents:

108 (1)(a) Standing committees shall be severally empowered to examine and enquire into all such matters as may be referred to them by the House, to report from time to time, and except when the House otherwise orders, to send for persons, papers and records, to sit while the House is sitting, to sit during periods when the House stands adjourned, to sit jointly with other standing committees, to print from day to day such papers and evidence as may be ordered by them, and to delegate to subcommittees all or any of their powers except the power to report directly to the House. [5]

Although most people appear willingly before committees when invited to do so, situations may arise where an individual does not agree to appear. If the committee considers the testimony essential, they have the authority to summon a witness by adopting a motion. The summons is signed by the Chair of the Committee and served on the individual by a bailiff. [6]

Similarly, committees generally obtain documents that they require simply by requesting them. However, if a request is denied and the documents are considered essential, standing committees can pass a motion to that effect. The motion would order the person or organization to provide the committee with the documents by a particular date. [7]

Rules of the Senate of Canada

In the Senate, the authority of standing committees to send for witnesses and documents is outlined in Rule 12-9 (2) of the Rules of the Senate of Canada:

12-9. (2) Standing committees and standing joint committees are empowered:

(a) to send for persons, papers and records; and

(b) to publish from day to day such papers and evidence as may be ordered by them. [8]

In most cases, a committee invitation to appear as a witness or to provide documents is sufficient. However, should a witness refuse to appear, a senator on the committee can file a certificate attesting to the relevancy the testimony, and the committee could then adopt a motion ordering the individual to appear. Once a motion is adopted, a summons is served on the witness. Similarly, to order the presentation of papers and records, a committee could adopt a motion which would order the person or organization to produce them. [9]

2.  Are there any recent examples from your Parliament of contempts relating to investigative committees, including non-compliance of witnesses summoned to appear before a Committee?

On March 25, 2011, in agreement with findings reported by the House of Commons Standing Committee on Procedure and House Affairs, [10] the Government of Canada was found in contempt of Parliament for failing to comply with an order of the House of Commons Standing Committee on Finance to produce certain documents. [11] The adopted motion, which reads as follows, also stipulated that the House of Commons had consequently lost confidence in the government, and Parliament was dissolved as a result:

That the House agree with the finding of the Standing Committee on Procedure and House Affairs that the government is in contempt of Parliament, which is unprecedented in Canadian parliamentary history, and consequently, the House has lost confidence in the government. [12]

In 2008, former RCMP Deputy Commissioner Barbara George was found in contempt of Parliament for having provided false and misleading testimony to the House of Commons Standing Committee on Public Accounts. [13] The motion adopted by the House of Commons reads as follows:

That the House of Commons find Barbara George in contempt of Parliament for providing false and misleading testimony to the House of Commons Standing Committee on Public Accounts on February 21, 2007; and that the House of Commons take no further action as this finding of contempt is, in and of itself, a very serious sanction. [14]

In another relatively recent example, three private companies were found guilty of contempt of Parliament in 2004 for failing to comply with an order to produce papers from the House of Commons Standing Committee on Agriculture and Agri-Food. [15] The motion adopted by the House of Commons reads as follows:

Accordingly, the following recommendation of the Committee was agreed to:

That the House of Commons find Cargill Foods, Lakeside Packers and Levinoff Meats Limited in contempt and order them to provide before Monday 10 May, 2004 at noon (EDT), to the Clerk of the Standing Committee on Agriculture and Agri-Food who will maintain the following documents in accordance to the April 21, 2004 motion (a) a copy of the financial statements detailing the added marginal costs attributable to the new BSE safety regulations along with

their profit margins on a monthly basis for calendar year 2003; and (b) documents explaining why the prices they paid for fed steers, heifers, cows and bulls declined by approximately 50%

in the three weeks following the announcement of the federal-provincial BSE Recovery Program on 18 June 2003. [16]

Furthermore, in November 2003, in response to findings reported by the House of Commons Standing Committee on Government Operations and Estimates, [17] the House of Commons found the former Privacy Commissioner of Canada, George Radwanski, in contempt of Parliament for providing misleading testimony during hearings of the House of Commons Standing Committee on Government Operations and Estimates. The motion adopted by the House of Commons reads as follows:

That this House find George Radwanski to have been in contempt of this House, and acknowledge receipt of his letter of apology, tabled in and read to the House earlier today. [18]

3.  What sanctions are available to your Parliament in cases of non-compliance or other contempts on the part of witnesses?

In the House of Commons, standing committees do not have the power to sanction witnesses for failure to comply with their orders. Only the House of Commons itself can take measures which they deem appropriate:

Although they can send for certain persons, standing committees do not have the power to punish a failure to comply with their orders in this regard. Only the House of Commons has the disciplinary powers needed to deal with this type of offence. If a witness refuses to appear, or does not appear, as ordered, the committee’s recourse is to report the matter to the House. Once seized with the matter, the House takes the measures that it considers appropriate.

[…]

Among the options available to the House is to endorse the committee’s order to produce records by concurring in its report, thus making it a House order to produce the requested records. In the past, the House has sometimes found persons failing to comply with an order to produce records guilty of contempt of Parliament. On occasion, it has even exercised its disciplinary powers. [19]

In addition to declaring witnesses guilty of contempt, [20] the disciplinary powers of the House of Commons can include reprimanding witnesses before the Bar of the House, although in recent times this has been a rare occurrence. [21]

There is also the possibility of imprisonment, although such a case has not occurred since 1913. Historically, prior to Confederation in 1867, “the Assembly [of Upper Canada] also claimed the power to send for and question witnesses and to punish any individual who refused to appear or answer questions, using its power of imprisonment to ensure obedience of its orders.” [22]

Similarly, in the Senate, committees have the authority to summon witnesses and to request documents, but they do not have the authority to reprimand or to enforce penalties in relation to these orders. [23] As described in Senate Procedure and Practice, only the Senate itself can provide punishment in relation to issues of contempt:

If a summons or order to produce documents is ignored, and if the committee insists upon the persons appearing or the documents being presented, the committee's recourse is to report the matter back to the Senate. The enforcement of a committee’s power to send for persons, papers and records lies with the Senate, not with individual committees.

Upon the presentation of such a report, it is then for the Senate to resolve the issue. The Senate may choose to summon the persons in question to the bar of the Senate to answer for their conduct or require that they go before the committee to justify themselves. Although the Senate can order a witness committed to prison, neither house of the federal Parliament has followed this course since 1913. Admonishment at the bar is another option to punish a witness who fails to comply. [24]

4.  What rules and guidelines do you have to ensure witnesses and potential witnesses before select committees are treated with fairness and due respect?

There are no specific rules governing the treatment of witnesses with fairness and due respect beyond the general rules pertaining to committee proceedings, including the requirement of keeping the nature of questions asked to the issue before the committee, the protection of testimony afforded to witnesses by parliamentary privilege, and the freedom of the committee to organize its work as it sees fit. [25]

Members of the House of Commons have been asked in the past to display courtesy and fairness when questioning witnesses. [26] Following is an excerpt from the Debates of the House of Commons which provides an example:

I would ask all Hon. Members to take special care, when citizens have responded to the request of the Government of Canada to serve, that they are treated with appropriate courtesy and fairness at all times when appearing before committees. [27]

Witnesses appearing before parliamentary committees also have the right to be accompanied by legal counsel; however, the role of the legal representative is strictly limited to legal advice, and the representative cannot speak on behalf of a witness during committee proceedings. [28]

5.  What is your assessment of the effectiveness of your Parliament’s powers and sanctions to deal with contempts?

While Parliament’s disciplinary powers are considered a keystone of parliamentary privilege, the use of these powers have historically been limited:

Historically, the House has had the right to reprimand and to imprison only until the end of the session and it did not have the power to impose fines. Parliament has been reluctant to use these powers and such cases have been rare. In the event of incarceration, the accused would remain imprisoned until he or she has complied with the order of the House or until the end of the session. [29]

A 2015 report by the Senate’s Standing Committee on Rules, Procedures, and the Rights of Parliament, highlighted the need to review some of these disciplinary powers:

Many of the powers to deal with contempts are rooted in history. Some powers may no longer make sense or seem relevant in a contemporary context. […] Other powers merit further review to assess their adequacy, their need and whether reforms ought to be considered. [30]

Similarly, Charles Robert and Blair Armitage, then Principal Clerks of the Senate, have indicated that the powers and sanctions to deal with contempts in Parliamentary committees have remained largely unchanged since Confederation, have been rarely used, and need to be adapted to today’s current context. [31] The authors also outline different options to pursue in modernizing these powers, which include keeping the status quo, abolishing all or some of the powers, or updating and developing new powers. [32]

September 2020