Case dismissed

Shortly after QP this afternoon, the Speaker dismissed Bob Rae’s question of privilege for wont of evidence.

The prepared text of the full ruling is below.

I am now prepared to rule on the question of privilege raised on April 5, 2012, by the Member for Toronto Centre (Mr. Rae) about statements made by the Prime Minister (Mr. Harper), the Minister of National Defence (Mr. MacKay), the Minister of Public Works and Government Services (Ms. Ambrose), and the Associate Minister of National Defence (Mr. Fantino) regarding the proposed acquisition of F-35 fighter jets.

I would like to thank the hon. Member for having raised this matter, as well as the hon. Leader of the Government in the House of Commons (Mr. Van Loan), the House Leader of the Official Opposition (Mr. Cullen) and the Members for Richmond–Arthabaska (Mr. Bellavance), Saanich–Gulf Islands (Ms. May), Scarborough – Guildwood (Mr. McKay) and Malpeque (Mr. Easter) for their comments.

In raising this question of privilege, the Member for Toronto Centre contended that an opinion attributed to two government departments in Chapter 2 of the Auditor General’s Spring 2012 Report to Parliament is at variance with statements the Prime Minister and certain ministers have made to the House on the same matter, namely that the government accepts all the recommendations and conclusions in the Auditor General’s report. The part of the report that is in question reads as follows: (quote) “National Defence and Public Works and Government Services Canada disagree with the conclusions set out in paragraphs 2.80 and 2.81.” (unquote) Based on this, the Member for Toronto Centre claimed that, the Prime Minister and the Ministers of National Defence and Public Works and Government Services, as well as the Associate Minister of National Defence had presented “two completely different and contradictory versions of reality” to the House. Noting that it is a fundamental obligation of the government to tell the House the truth, the Member stated that the Government seemed to be attempting to deliberately confuse the House.

With respect to the cost projections of the F-35 fighter jets, the Member for Toronto Centre also claimed that, if the Government does indeed fully accept all of the Auditor General’s conclusions and recommendations, then it is, in fact, agreeing with the Auditor General’s assessment that “some costs were not fully provided to parliamentarians” and thus that Parliament had been misled. He went further, alleging that Ministers were aware of the facts and thus knew that what they were saying in the House was not true. In reply, the Government House Leader explained that the departmental responses to the Auditor General’s conclusions were those of the departmental officials, rather than the Government itself. He said: “The position of the government is not the position taken by the officials in those departments”.

The charges being leveled against the Prime Minister and three ministers are serious. They go to the very essence of the need for clarity in our proceedings, and the need to ensure that information provided to the House by the Government is such that the ability of Members to carry out their duty of holding the government to account is not diminished or impeded.

The issue of ministerial responsibility and accountability has also been raised by several Members. The Chair would like to set this aspect of the matter aside immediately. As all hon. Members know, constitutional issues of this nature are not matters of parliamentary procedure, and they are well beyond the range of matters the Speaker can be asked to rule upon.

In reviewing the other arguments being advanced, it would seem that the Chair is being asked to ascertain whether what was said in the House was truthful. However, I must remind Members that in such circumstances, the Chair`s role is clear and, indeed, very limited. In House of Commons Procedure and Practice, Second Edition, at page 510, it states:

(quote) “The Speaker, however, is not responsible for the quality or content of replies to questions. In most instances, when a point of order or a question of privilege has been raised in regard to a response to an oral question, the Speaker has ruled that the matter is a disagreement among Members over the facts surrounding the issue. As such, these matters are more a question of debate and do not constitute a breach of the rules or of privilege.” (unquote)

There are in addition many relevant rulings from my predecessor Speaker Milliken and I will quote from several of them.

The first, from January 31, 2008, is found at pages 2434 and 2435 of Debates. In it, he stated:

(quote) “Any dispute regarding the accuracy or appropriateness of a minister’s response to an oral question is a matter of debate; it is not a matter for the Speaker to judge. The same holds true with respect to the breadth of a minister’s answer to a question in the House: this is not for the Speaker to determine.”

Again on February 26, 2004, at page 1076 of Debates, he confirmed:

(quote) “As hon. members know, it is not the Speaker’s role to adjudicate on matters of fact. This is something on which the House itself can form an opinion during debate.” (unquote)

The Member for Toronto Centre himself acknowledged this parliamentary convention when he said, “while it is not for the Speaker to determine what is fact,…”

So what then are the parameters of the Speaker’s role when faced with such allegations? Speaker Milliken summed it up quite succinctly on April 21, 2005, when he said at page 5412 of Debates:

(quote) “In the present case, I must determine whether the minister’s responses in any way impeded members in the performance of their parliamentary duties and whether the remarks were intentionally misleading…” (unquote)

Then, on January 31, 2008, Speaker Milliken again had cause to state, at page 2435 of Debates:

(quote) “As hon. members know, before finding a prima facie breach of privilege in situations such as these, the Speaker must be convinced that deliberately misleading statements were made to the House.” (unquote)

It has become accepted practice in this House that the following elements have to be established when it is alleged that a Member is in contempt for deliberately misleading the House: one it must be proven that the statement was misleading; two, it must be established that the Member making the statement knew at the time that the statement was incorrect; and three, that in making the statement, the Member intended to mislead the House.

It is with this very high threshold in mind that I have carefully reviewed all the interventions on this matter, as well as statements made to the House and replies given during Oral Questions by the Prime Minister and the various Cabinet Ministers involved.

With regard to the first argument advanced by the Member for Toronto Centre, the Chair has difficulty accepting the view that because Ministers are stating that they accept the findings and agree with the conclusions of the Auditor General — which include, in part, a statement written by the Auditor General relating that two departments disagree with him — that this in and of itself is evidence that these same Ministers have deliberately misled the House and intended, in doing so, to impede Members in the performance of their duties.

What the Chair has before it is a statement, by the Government House Leader that, having taken into account the findings of the Auditor General, the government has decided that it rejects the position previously taken by officials as conveyed in the report. As I pointed out earlier, the Minister has stated rather starkly that “the position of the government is not the position taken by the officials in those departments.” Accordingly, with respect to this aspect of the question, the Chair cannot find grounds for a prima facie finding of privilege.

The second argument made by the Member for Toronto Centre is that because the government agrees with the Auditor General’s assessment that (quote) “some costs were not fully provided to parliamentarians” (unquote), this means that the House was misled. He further claims that (quote) “…for a long time, the members of the executive council knew that what they were saying in the House of Commons was not true.” (unquote)

In looking at this aspect of the question, the Chair must return to the words of the Auditor General himself, whose report states categorically in paragraph 2.80 that: (quote) “Some costs were not fully provided to parliamentarians.” (unquote) However, let us not forget the very high threshold required before there can be a finding of prima facie privilege. As I said a moment ago, it must be clearly established that in making the statement complained of, the Member in question knew it was incorrect and intended to mislead the House in making it.

It is relevant to note, in reference to this latter point, that the Auditor General also says, in the very same paragraph of his report, and here I am repeating a passage the Member for Toronto Centre himself read to the House:
(quote) “Problems relating to development of the F-35 were not fully communicated to decision-makers,” — meaning Ministers – “and risks presented to decision makers did not reflect the problems the JSF Program was experiencing at the time. Full life-cycle costs were understated in the estimates provided to support the government’s 2010 decision to buy the F-35.” (unquote)
Obviously, the Auditor General has raised concerns about the information provided. He is pointing out that in his opinion less than complete information was provided to Ministers and to Members.

On this point, drawing from a somewhat analogous case from 2004 found in Debates at page 1047 in reference to statements contained in a report of the Auditor General indicating that Parliament had been “misinformed” and “bypassed”, Speaker Milliken pointed out that no evidence had been produced to show that (quote) “departmental officials deliberately intended to deceive their superiors and so obstruct hon. Members in the performance of their duties” (unquote).

Not only has the Government House Leader stated that the government agrees with the Auditor General in this respect, the Minister has gone even further stating: (quote) “…as a government, as ministers, as a cabinet, we have a right and an expectation that the advice we receive is something on which we can rely. This is something that, in this case, the Auditor General made some findings on. We happen to agree with those findings in the end.” (unquote)

So ultimately the Chair has before it two clear statements: the first contained in the report of the Auditor General that some costs were not fully provided to Ministers and Members; and the second, by the Government House Leader accepting the conclusions of the Auditor General.

In my view, no clear evidence has been presented beyond this and thus, the Chair has no choice but to conclude that, it cannot find that Ministers knew or believed that what they were telling the House was not true or that it was intended to be misleading. In other words, the criteria of demonstrating that Ministers knew their statements to the House were incorrect, and that they intended to mislead the House, has not been met.

Accordingly, bound as I am by the very narrow parameters that apply in these situations, and without any evidence that the House was deliberately misled, I cannot arrive at a finding of prima facie privilege in this case.

The House will be aware, however, that the Standing Committee on Public Accounts has, as part of its ongoing mandate, the responsibility to review and report on all reports of the Auditor General. The House knows that the Committee is seized of the report that has given rise to this question of privilege and is at present proceeding with its examination of the report.
I remind the House that a determination that a breach of privilege is not prima facie at this time in no way interferes with the right of any Honourable member to raise a new question of privilege should the committee arrive at findings that shed new light on this matter, or should other pertinent information become available.

I thank Members for their attention.