MPs are right to take a stand: the government must give Parliament the documents it demands

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Two different forums of accountability, two very different outcomes.

Over at the Foreign Interference Commission, chaired by Justice Marie-Josée Hogue, a parade of witnesses and government documents have cast new light on the Trudeau government’s failure to respond to intelligence reports of attempts by China, in particular, to interfere in Canadian elections and intimidate Canadian citizens.

We’ve heard of intelligence memos being kept from the Prime Minister by his advisers, of an application for a surveillance warrant being held up for weeks, allegedly because it involved a prominent Liberal organizer, of high-level officials shrugging off intimidation campaigns as somebody else’s problem.

We have heard all this for one reason only: because of the commission’s broad powers under the Inquiries Act, and under its own rules, to compel the production of these witnesses and documents – powers enforceable in a court of law. One suspects this is why the Prime Minister was so reluctant to call it.

Meanwhile in the House of Commons, MPs are again at loggerheads, for at least the fifth time in the last 15 years, over the government’s refusal to turn over documents that Parliament or its committees have demanded.

The issue that prompted the demand – allegations of conflict of interest and misappropriation of funds at a now-defunct federal agency, Sustainable Development Technology Canada (SDTC) – need not detain us here. The issue is the government’s failure to hand over the documents.

You will sometimes see this described as a “dispute,” as if it were a matter that was open to debate. It is not – any more than it is open to debate whether the government is accountable to Parliament. The right of Parliament to send for “persons, papers and things” is one of the most ancient and undoubted of parliamentary privileges. It is crucial to the Commons’ ability to act as a check on the executive.

Or rather, it is not so much the right of Parliament to demand them as it is the government’s obligation to produce them. The obligation is if anything greater with regard to a demand from Parliament than a commission of inquiry. For while the latter may be subject to limitation on the grounds of executive privilege, cabinet confidentiality and the like, and therefore adjudicable by a court, the privileges of Parliament are not.

No court may rule – certainly no court would – on the refusal of a government to surrender a document to Parliament, for the same reason no government may refuse such a demand: because it is a matter of parliamentary privilege, sovereign territory on which no other branch of government may intrude. That is as solemn and binding a convention, under our system of government, as there is. As the Commons law clerk, Michel Bédard, has described it, the power to send for documents is “absolute and unfettered. It is a constitutional parliamentary privilege not limited by statute.”

So when the Commons passed a motion on June 10 demanding that the government hand over all documents related to SDTC within 30 days, that should have been the end of it. And when, in September, the Speaker of the House, Greg Fergus, ruled that the government had failed to produce all the documents – some were produced, but many were not, and many more were produced only in heavily redacted form – and that as such there was a prima facie breach of privilege, that should have been the government’s cue to comply.

Instead the government has continued to stall, insisting it has the right to decide for itself what documents Parliament may see, based on whatever grounds it thinks sound convincing: cabinet confidentiality, solicitor-client privilege, even the privacy laws, what have you. These are all interesting points. They may even be points Parliament might want to consider. But they are irrelevant to the core issue, which is that Parliament, in its wisdom, has demanded to see the documents. In law, that is all that matters.

We have been here before. In 2009, the Harper government refused to accede to a parliamentary committee’s demand for documents related to the treatment of prisoners of war by our allies in the war in Afghanistan – a confrontation that was only resolved after the government prorogued Parliament. In 2011, the same government refused to hand over documents on government costs, notably for the F-35 fighter-jet contract, for which it was found in contempt of Parliament by a vote of the House – a first in Canadian and indeed Commonwealth history.

And yet the Trudeau government, which came to power promising to reverse the Harper government’s abuses (among them: “Stephen Harper has used prorogation to avoid difficult political circumstances. We will not.”) soon followed in its anti-democratic footsteps. There was the WE Charity affair, where it not only refused for months to release the unredacted documents a parliamentary committee had demanded, but cut short its inquiries altogether by, you guessed it, proroguing.

And of course there was the later matter of the two Chinese spies working in the Winnipeg infectious disease laboratory. Once again a Speaker ruled that a government’s failure to hand over the documents was in breach of Parliamentary privilege. Once again a government was found in contempt of Parliament. And the government’s response? First it sued the Speaker. Then it dissolved the House.

In the present controversy there is admittedly a complication not present in the others. The June motion of the House not only demanded that the documents be handed over to the Commons law clerk, but included a provision instructing the clerk to forward them to the RCMP for investigation. The RCMP commissioner has been clear the force has no use for any documents the House might provide, as they might compromise its investigations.

This is clearly an issue the House might want to consider. The Speaker, in his ruling, suggested it be put to the Commons procedure committee, and the Conservative House Leader, Andrew Scheer, took him up on it.

But – again – none of this has anything to do with whether the government should hand over the documents. It may have been unwise for the House to have attached the business about the RCMP to its motion, but that is for the House, not the government to decide. The government’s sole obligation is to comply with the House’s demand. The House can figure out what to do with the documents after it has received them. (For that matter, so can the RCMP. If it doesn’t want to look at the documents it doesn’t have to.)

That is why the House is now in turmoil – why no business (other than Question Period) has been allowed to proceed for nearly two weeks. It is the motion to send the matter to committee that MPs are debating, but it is the government’s breach of privilege they are protesting. As rightly they should.

I don’t doubt that there is also politics involved. Not only does it provide the Opposition with a chance to paint the government as high-handed and anti-democratic, but it raises the question of why they are so anxious to keep the documents – which remember have to do with allegations of government corruption – under lock and key. If nothing else, the mayhem in the House adds fuel to Conservative arguments that this government has reached the end of its useful life, and ought to be dismissed.

But just because the Conservatives are saying it doesn’t mean it isn’t true. Yes, it’s theatre, yes it’s partisan – and yes, the Conservatives, given their own assaults on the same ancient and undoubted right, are flaming hypocrites, every bit as much as the Liberals – but there is still a deadly serious issue at stake. It may be a show, but it is in the service of saving Parliament from becoming nothing but a show.

For if Parliament, in the course of its investigations, cannot compel the government to produce the documents it requires, then it has no real oversight role. The paper trail is always the key. That’s why we make governments keep records in the first place.

And if Parliament cannot investigate these matters, who can? The police? We’ve seen how reluctant they are, whenever senior government officials are involved. And besides, not every scandal rises to the level of outright criminality.

Public inquiries are all very well, but it is up to the prime minister to call one. It took months to shame Justin Trudeau into calling the Hogue Inquiry, and then on terms of reference he designed.

If we are to hold the governments we elect to account, not just in the most extreme circumstances, but as a matter of course, only Parliament can do the job. And only a Parliament that is properly empowered can do the job properly.

So the yawns of boredom lately heard from some sections of the press gallery – When is this show going to end? Get on with it! – are a little hard to take. The serial refusal of governments of either party to obey Parliament’s demands for documents is part of a much broader decline of parliamentary democracy in this country. If we are ever to reverse that, this is as good a place to start as any.

The criticism often made of Pierre Poilievre is that he is too willing to break with norms, the well-established customs and conventions that make politics work. Well this time it is the Liberals trampling over a norm – breaking the law, in fact – not just once, but repeatedly. If it takes shutting down Parliament to call them to account for it, so be it.