Speaker Anthony Rota in the House of Commons on Parliament Hill in Ottawa on June 21, 2021. Mr. Rota called the court action an urgent matter and vowed to vigorously fight the government.Sean Kilpatrick/The Canadian Press
The Liberal government is taking the House of Commons Speaker to court, in an unprecedented move to prevent the release of uncensored documents to members of Parliament that offer insight into the firing of two scientists from Canada’s top infectious-disease laboratory.
The government said in a court filing that the disclosure of this information could not only jeopardize national security but also, possibly, Canada’s international relations.
The Attorney-General’s office filed an application in Federal Court on Monday requesting that information demanded by Speaker Anthony Rota on behalf of the House of Commons stay secret.
The legal challenge against a ruling of the House stunned opposition MPs, who were notified about the court application late Wednesday afternoon. An order of the House backed by a majority of MPs last Thursday called on the Public Health Agency to produce records it has been withholding from a Commons committee for months.
Mr. Rota called the court action an “urgent matter” and vowed to vigorously fight the government, saying House of Commons law clerk Philippe Dufresne will prepare a legal defence.
“The Speaker’s Office will defend the rights of the House. That is something I take very seriously,” Mr. Rota said. “The legal system does not have any jurisdiction over the operations of the House. We are our own jurisdiction. That is something we will fight tooth and nail to protect and we will continue to do that.”
Conservative House Leader Gérard Deltell said he was taken aback that the Trudeau government would go to the federal court to challenge parliamentary privilege.
“If the government does not respect the orders of the House of Commons, why should Canadians’ respect laws voted upon by the House of Commons?” he said.
In the court filing, the government said the disclosure of the unredacted information would be “injurious to international relations or national defence or national security.”
Mr. Dufresne told MPs before a Commons committee Wednesday that “to his knowledge” the Canadian government has never before gone to court to try to elude an order of the House to produce documents.
He said the House “has exclusive authority” when it comes to matters that fall under parliamentary privilege.
Justice Minister and Attorney-General David Lametti distanced himself from the court proceeding, saying officials in his department evoked a section of the Canada Evidence Act that is often used in national-security matters to keep sensitive information tightly under wraps.
“As Attorney-General that decision has been delegated to department officials as is the normal course, so it is not going to be a decision that is partisan in any way,” he said. “I will never play politics with national security.”
For months, opposition MPs have been seeking unredacted records from the Public Health Agency of Canada (PHAC), that explain why Xiangguo Qiu and her husband, Keding Cheng, were fired from the National Microbiology Laboratory in Winnipeg. The two scientists lost their security clearances, and the RCMP was called into investigate, in July, 2019. They were dismissed in January.
More than 250 pages of records have been withheld in their entirety and hundreds of others have been partly censored before being provided to MPs. They also relate to the March, 2019 transfer of deadly virus samples to the Wuhan Institute of Virology that was overseen by Dr. Qiu.
On Monday, PHAC President Iain Stewart was called before the Commons and admonished by the Speaker for his repeated refusal to provide the requested records to MPs on the special committee on Canada-China relations, including information on the transfer of Ebola and Henipah viruses to the Wuhan facility.
MPs had put in safeguards that would require the Commons law clerk to review the documents and redact information that could harm national security or a criminal investigation before making them public.
However, Mr. Stewart notified the Attorney-General’s office on Sunday night that “sensitive or potentially injurious information” could be disclosed if he obeyed the order of the House of Commons.
Former House of Commons law clerk Rob Walsh said the Federal Court should deny the Trudeau government’s request.
“If the court is cognizant of parliamentary privilege, which is not always the case … then the government’s application won’t succeed,” he said. “This is House business; it’s not the court’s place to interfere.”
He said the government may try to argue that there is a committee created by statute – the National Security and Intelligence Committee of Parliamentarians (NSICOP) – which has clearance to read confidential documents. NSICOP, however, is not a committee of Parliament and is under the control of the Prime Minister’s Office.
“The answer back to that of course is that statutory committees do not take priority over … the rights of the House.”
Mr. Rota was expected to rule on a motion on Wednesday to instruct the Commons sergeant-at-arms to search PHAC offices and seize unredacted documents.
However, the Speaker told MPs that he needed more time to provide a thoughtful ruling as the House adjourned for the summer break. If an election is called before Parliament resumes sitting on Sept. 20, Mr. Rota said it would be up to the next Speaker to decide whether to proceed with the ruling.
Prime Minister Justin Trudeau told Question Period Wednesday that he was willing to work with opposition parties to find a compromise. On Monday, Government House Leader Pablo Rodriguez said the government was prepared to allow the Commons law clerk to examine hundreds of censored documents under oversight from national-security officials.
Mr. Rodriguez also suggested MPs could also use a process followed in 2010, when the Harper government allowed a group of MPs and a panel of arbiters to determine what information could be made available to the Commons about the Canadian military’s transfer of Taliban prisoners.
The government previously said it would only turn over unredacted documents to NSICOP, which does not report to the House. Mr. Trudeau has the power to prevent the committee from releasing information to the public.
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