It could set the stage for an exceptional legal battle
OTTAWA — The Liberals say the House of Commons exceeded its powers when MPs ordered the government to hand over all documents related to the so-called “green slush fund” so they can be sent to the RCMP.
On Wednesday, Government House Leader Karina Gould called on Speaker Greg Fergus to reject opposition parties’ claim that the government violated MPs’ parliamentary privilege by refusing to provide them with unfettered access to thousands of documents regarding Sustainable Development Technology Canada (SDTC).
“Mr. Speaker, we are in uncharted territory with this matter,” Gould said in the House of Commons chamber. “The House has exceeded its authority in ordering the production of documents not for its own use or the use of members of Parliament, but rather exclusive to, and for the use of, a third party.”
“The government has disobeyed a lawful order of this House. It has failed to provide all of the papers which were formally required by this House and, in so responding, many papers were altered or outright suppressed through the redaction process,” he said at the time.
Both the Bloc Québécois and NDP have since supported his call for Fergus to rule that the government appeared to have violated MPs’ parliamentary privilege.
The Speaker is now tasked with ruling on the issue that is becoming a serious test of the limits of the constitutional powers of the House of Commons. If he finds that the government appears to have violated MPs’ privilege, it will be up to Parliamentarians to decide next steps.
That finding could also set the stage for an exceptional legal battle between the government and Speaker over the House of Commons’ jurisdiction.
At issue is the government’s response to a June 10 motion adopted by the House of Commons ordering the public service, the auditor general and SDTC — rebranded as the “green slush fund” by Conservatives — to provide all documents on the troubled fund to the House of Commons law clerk, Michel Bédard.
The motion then called for Bédard to submit those records to the Royal Canadian Mounted Police (RCMP), though it doesn’t specify what the police force should do with them.
What makes the order by the House exceptional is that the documents were not ordered as part of a regular Parliamentary proceeding like a study by a House committee, but simply so that they can be passed on to the RCMP.
That included Auditor General Karen Hogan, who wrote the House of Commons in July arguing that she would not comply because it could compromise her office’s work. She also noted that if the RCMP wants her files, it can seek a production order to obtain them legally.
On Monday, Scheer pointed out that parliamentary privilege grants the House of Commons tremendous power when it comes to fulfilling its duties. That includes an absolute and unfettered ability to send for documents, he noted.
But Gould countered Wednesday that ordering documents simply to pass them on to the RCMP is not a duty of the House of Commons. Rather, she said it’s a drastic overreach by Parliamentarians that is akin to them deciding what police should investigate.
“I think this exceeds the jurisdiction of Parliament, because we have a separation between branches of government that should and must continue. The fact of this motion would run roughshod over that separation of powers should be of extreme concern to all Canadians,” she said in an interview.
“The consequences and precedents that this particular motion sets are extremely alarming.”
If Fergus agrees with opposition parties that the government violated an order by the House, Gould suggested that MPs should refer lingering questions on parliamentary privilege to a Commons committee.
In a letter to the House of Commons law clerk Michel Bédard in late July, RCMP Commissioner Mike Duheme said it was “highly unlikely” that any records obtained through the motion could be used in a criminal investigation because it could be considered a breach of a suspect’s Charter rights.
Bloc Québécois House leader Alain Therrien said Wednesday that the RCMP could refuse the documents for all he cared, so long as the government bent to the will of the House and provided the unredacted records.
“It is possible that the RCMP doesn’t want the documents. It’s possible that evidence received in an unusual manner may be more difficult to use in court,” Therrien said. “If that’s the case, then (the RCMP) can refuse the documents, it’s not more complicated than that.”
“But it doesn’t change the fact that the government has the obligation to respect an order from the House,” he noted.
National Post
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