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UPDATED: Ethics to Oliphant Commission: Past committee testimony? Sorry, that’s privileged.


 

From the third report of the Standing Committee on Access to Information, Privacy and Ethics (March 12, 2009):


[…]Given the principle of parliamentary privilege is enshrined in Section 9 of the Bill of Rights of 1689, Section 18 of the Constitution Act 1867, and Section 4 of the Parliament of Canada Act;

Given that witnesses who appeared before the Committee were given assurances that any proceedings would be protected by parliamentary privilege, thereby prohibiting the use of testimony in any proceeding outside of the House of Commons;

And given that the Senior Counsel, Nancy Brooks, on behalf of the Commissioner of the Commission of Inquiry into Certain Allegations Respecting Business and Financial Dealings Between Karlheinz Schreiber and the Right Honourable Brian Mulroney has requested, by a letter dated March 6th, 2009, leave of the House of Commons to refer in Commission proceedings to testimony that was given before the House of Commons Standing Committee on Access to Information, Privacy and Ethics, as reported on by the Committee in its report of April, 2008;

The House moves that the privileges, powers and immunities of the House of Commons, as provided by section 18 of the Constitution Act, 1867 and section 4 of the Parliament of Canada Act, include freedom of speech and debate as set out, among other places, in Article 9 of the Bill of Rights, 1689, which provides “that the freedom of speech and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament”;

That the privileges, immunities and proceedings and all evidence, submissions and testimony by all persons participating in the proceedings of the Standing Committee on Access to Information, Privacy and Ethics continue to be protected by all the privileges and immunities of this House, as mentioned in the Fourteenth Report (38th Parliament, 1st Session) of the Standing Committee on Procedure and House Affairs adopted by the House of Commons on November 18, 2004.

That this privilege prohibits, in a court of law or other proceeding, the tendering or receipt of evidence by way of direct evidence, cross-examination or submissions, of questions asked or statements, submissions or comments made in a parliamentary proceeding;

And that the House of Commons’ privilege of freedom of speech and debate precludes receipt of such transcripts by any other proceeding, including a commission of inquiry, for such purposes […].

For what it’s worth, I don’t think the committee really had a choice in this situation — not if they wanted to ensure that parliamentary privilege would be preserved for future inquiries  — like, say, the In and Out investigation, which should be back underway within the next few months.  (I guess in theory, the House could reject the report, but I don’t see that happening.)

UPDATE: At the risk of sending certain colleagues into a paroxysm of rage, here’s a post from the ITQ archives that looks at why the committee’s decision to affirm privilege  may be welcomed by some witnesses, who will now not face the prospect of being confronted by past testimony when appearing before the Oliphant Commission.


 

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