Federal government's move to take Speaker to court raises questions that divide experts

The Liberal government is taking the Speaker of the House of Commons to court to get a judge's confirmation that it has the legal authority to withhold documents requested by members of Parliament sitting on a Commons committee. 

It's a complex, technical case involving legal precedents dating back to the 1600s. Here are some answers to key questions about this remarkable clash.

What is this fight about?

In March, opposition MPs on the Special Committee on Canada-China Relations passed a motion directing the Public Health Agency of Canada (PHAC) to deliver all documents relating to the transfer of samples of the Ebola and Henipah viruses from the National Microbiology Laboratory in Winnipeg to the Wuhan Institute of Virology in China.

It also asked for all documents related to the lab's dismissal of scientists Xiangguo Qiu and her biologist husband, Keding Cheng. The pair were escorted off the premises in 2019 and were officially fired in January of this year.

The motion called for the documents to be handed to the parliamentary law clerk, who would confidentially review them and redact anything he felt would compromise national security. Subsequent committee motions in May and June also demanded the production of the documents.

The Liberal government instead provided the unredacted documents to the all-party National Security and Intelligence Committee of Parliamentarians (NSICOP), whose members have top security clearance. NSICOP was established by the Liberal government in 2018 to review national security and intelligence activities.

Speaker Anthony Rota ruled that sending the documents to NSICOP was not acceptable since it's a relatively new body and not a standing committee of Parliament.

Conservative Leader Erin O'Toole reacted by introducing a motion in the House of Commons — which passed — calling on PHAC president Iain Stewart to deliver the documents and to appear before the Speaker to be reprimanded. That admonishment happened last week — the first time that's happened since 1913 — but it did not lead to the delivery of the documents.

Why won't the Liberal government simply hand over the documents?

According to the federal government's filing with the Federal Court, Stewart reached out to Attorney General David Lametti the day before his appearance in the House to say he "believed that sensitive or potentially injurious information" would be disclosed if his agency followed the order.

The court filing said the attorney general, citing the Canada Evidence Act, did not authorize the release of "some information contained in some of the documents covered by the notice" because to do so "would be injurious to international relations or national defence or national security."

Central to the Liberal's argument is the fact that once the documents are in the hands of MPs, parliamentary privilege would allow them to release the contents by, for example, reading them out in the House of Commons. Parliamentary privilege gives MPs immunity from prosecution over what they say in the House of Commons, even if national security is compromised. 

Mel Cappe, a former clerk of the Privy Council, told CBC News that allowing MPs to have access to intelligence or national security documents without adequate restrictions would harm Canada's ability to share intelligence with allies such as those in the Five Eyes group, which includes the U.S., U.K., Canada, Australia and New Zealand.. 

"Our Five Eyes cousins are not going to share intelligence with us. This is not cost-free. If they go down that road, they are causing a problem we've never had," Cappe said.

Other experts disagree. Steve Chaplin, former senior parliamentary counsel for the House of Commons, told CBC News that elected officials do not leak national security documents because they know they could be in government one day and would not want to set that precedent.

He also said that assuming opposition MPs would deliberately release such information amounts to suggesting that "members of the opposition have an interest in causing damage to Canada's national security."

Does the government have the power to ignore a request from Parliament?

The federal government is seeking confirmation that it can use Section 38 of the Canada Evidence Act to prevent the release of the documents, effectively trumping Parliament. That section of the law says that the attorney general can personally prohibit the disclosure of information to protect national security, or in relation to a foreign entity. 

The attorney general was given that authority with the passing of the 2001 Anti-Terrorism Act after the Sept. 11 attacks.

That power has only been used once before — by Lametti, in 2019 — and in that case it did not involve interfering with Parliament's supremacy. It was confined to preventing the release of details about a Canadian Security Intelligence Service operation on the Chinese embassy in Ottawa in a case of a man accused of attempting to leak secrets to China.

Kent Roach, a professor of law at the University of Toronto, told CBC News that the Canada Evidence Act does have the power to trump Parliament's legal authority.

"Even if the federal court says, 'Look we've weighed the interests and we think that Parliament should get more,' the attorney general can issue a certificate saying this will not be disclosed because it relates to national security or foreign relations," he said.

Cappe agreed, saying that the powers of Parliament and the Evidence Act are not in conflict.

"If the Parliament of Canada wants to exercise its supremacy and change the Canada Evidence Act, they can do that, but they haven't chosen to do that," he said.

"Instead they think they have a high horse. They actually have a little pony and it doesn't stand very high."

Does Parliament have the power to compel the government to act?

Chaplin disagrees with Cappe and Roach. He said the law is very clear: Parliament's powers are supreme under the Westminster system and only Parliament can decide how the law applies to its institutions.

"Parliamentary privilege is constitutional and the privileges and the whole Westminster system of government, where the government is accountable to Parliament for everything that it does, is part of that system," he said. 

Chaplin said that the federal government has the power to prevent the release of documents that are evidence in a court case — not to interfere with the powers of Parliament.

He and others who take this position point to Article 9 of the Bill of Rights of 1689 that states "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."

Chaplin also pointed to a Supreme Court of Canada ruling in 2005 which cited Article 9 in ruling that "the House of Commons is not subject to the control of Her Majesty's Courts."

"It's not up to the courts to decide how the laws apply to Parliament," he said. "It's not the court's business to step into it, and for the government to ask the courts to do it violates the Bill of Rights of 1689." 

Paul Daly, chair in administrative law and governance at the University of Ottawa, said that while a law passed in 1689 may not seem relevant today, Canada's Constitution follows the U.K. model when it comes to deciding which arms of the state prevail.

"The preamble to the Canadian Constitution says it's a constitution similar in principle to the United Kingdom and the privileges of Parliament and the provincial legislatures form part of the Constitution of Canada," he said. 

So what happens now?

The application filed with the Federal Court by the attorney general named Speaker Rota as the respondent. Rota's office indicated in an email to MPs that he will mount a vigorous defence of Parliament's powers before the court.

"As Speaker of the House of Commons and guardian of its parliamentary privileges, I will oppose the Attorney General's application and take the position that the Federal Court has no jurisdiction to restrict the House's power to request documents," Rota said in the email.

Yan Campagnolo, an associate law professor at the University of Ottawa who studies constitutional law, said that the Federal Court is likely to kick the whole thing back to the politicians to sort out.

"In principle, the courts would not order the government to produce the documents sought by the House of Commons and, conversely, they would not declare that the government is justified in refusing to produce these documents based on a provision in the Canada Evidence Act," he said.

"The court will likely decline to rule on whether the documents should be produced. It will be up to the House of Commons and the government to find a reasonable compromise."

Both Campagnolo and Chaplin said that under the Constitution, the government enjoys its authority because of the confidence conferred on it by the House of Commons. 

If the court does kick this matter back to Parliament, the opposition can withdraw that confidence, bring the government down and let voters decide if the government has abused its powers.

Roach said a case like this could easily remain in the courts until the fall. If that happens, it could conclude very close to an expected fall election.