(SCC0037)

Questionnaire for overseas Parliaments on Committee Powers and ContemptsWritten evidence submitted by Canada (Senate)

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?

In the Senate of Canada, committees have the power to send for persons, papers and records. These powers are set out in Rule 12-9(2)(a) of the Rules of the Senate (the full text of this Rule is reproduced below). These powers grant Senate committees the ability to order that specified witnesses appear in person to give evidence and that committees can demand that documents be provided to them. The enforcement of a committee’s power to send for persons, papers and records lies with the Senate, not with the individual committees.

One of the limitations on the powers of Senate committees in this regard is that they cannot compel the attendance of members of either the Senate or the House of Commons and, according to rules and practices, they can only send for documents that the Senate itself can demand. With respect to the attendance of members of either house, members may choose to appear voluntarily, or the house of which they are a member can order them to appear. (from Senate Procedure in Practice, page 200)

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?

In the Senate of Canada, there are no recent examples of contempt or non-compliance to a summons. The most recent examples of a summons being issued dates back to 2002 for the Joint Committee for the Scrutiny of Regulations and 2000 for the Standing Senate Committee on Energy, the Environment and Natural Resources. In both of these cases the witnesses appeared, and so no further recourse was required.

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

Upon the presentation of a report of non-compliance of a summons from a committee, 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 in question to justify themselves. Admonishment at the bar is another option to punish a witness who fails to comply. Although the Senate can order a witness committed to prison, neither house of the Canadian federal Parliament has followed this course since 1913. (from Senate Procedure in Practice, page 201)

As noted in June 2015, in an interim report of the Standing Senate Committee on Rules, Procedures, and the Rights of Parliament entitled A Matter Of Privilege:  A Discussion Paper On Canadian Parliamentary Privilege In The 21st Century: “Parliament historically has claimed the power to reprimand, imprison, or fine witnesses who ignore their obligation to testify or disclose documents or engage in other forms of contempt. However, some of these powers have not been used against non-members for some time, and may have lapsed.” The committee further noted that the Canadian Charter on Rights and Freedoms, a unique feature among fellow Commonwealth countries, means such sanctions may no longer be “consistent with the Charter and expectations of procedural fairness”, although this has not been fully tested by Canadian courts.

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

The Senate does not have any codified rules or guidelines to ensure fair treatment of witnesses. In the report cited above, the committee stated: “In the opinion of the Rules Committee there is considerable support for the idea of procedural fairness rights for witnesses to parliamentary proceedings. The idea is founded not only on basic notions of what is right and fair, but also what may be required under our constitutional and legal structure based on the rule of law and the Charter.” In practice, the chair presides over the proceedings of a committee with respect to guiding deliberations and maintaining order and decorum and can intervene if necessary.

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

In the report cited above, the committee suggested that “Parliament should proactively re-evaluate and reconsider parliamentary privilege in the Canadian context, to reassess privilege in a way that allows Parliament to function adequately without infringing on the rights of others. The Committee’s observations contained in the previous section of this paper reflect its consideration of possible options to renew parliamentary privilege in the 21st century.”

Rules of the Senate

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

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

September 2020