r jtc0J4J-4-4—&-- anD The Premature Distribution of aReport of an Officer of the House of Assembly Report to the House of Assembly HouseofAssembly Newfoundland&Labrador Privileges and Electidns Committee Question of Privilege: September 2020

S Privileges and Elections Committee j% . Report to the House of Assembly September 2020 TABLE OF CONTENTS TRANSMITTAL 1 INTRODUCTION 2 ORDER OF REFERENCE 4 WORK OFTHE COMMITTEE 5 FINDINGS 11 RECCOMMENDATIONS 13 This report is privileged until tabled in the House of Assembly. ii )

PrivilegesandElectionsCommittee ReporttotheHouseofAssembly September2020 TRANSMITTAL Mr.Speaker, ThePrivilegesandElectionsCommitteehasconsideredthemattertothemreferredandhas directedmetosubmitthisreport.

Respectfullysubmitted, Hon.DerrickBragg,HA FogoIsland—CapeFreels Chair CommitteeMembers: DerrickBragg,MHA,FogoIsland-CapeFreels PamParsons,MHA,HarbourGrace—PortdeGrave CarolAnneHaley,MHA,Burin-GrandBank DavidBrazil,MHA,ConceptionBayEast-BellIsland* AlisonCoffin,St.John’sEast —QuidiVidi** Mr.Brazilrecusedhimselffromparticipatinginthediscussionofthismatter;Mr.KevinParsons,MHA,Cape St.Francis,substituted. **Ms.Coffinrecusedherselffromparticipatinginthediscussionofthismatter;Mr.JimDinn,MHA,St.John’s Centre,substituted. fi

Privileges and Elections Committee Report to the House of Assembly September 2020 INTRODUCTION On December 2, 2019, the CBC Radio Morning Show aired a story respecting the findings of a “Citizens’ Representative report”, referred to in the news

article as “The Mitchelmore Report”. A related web

article on the www.CBC.ca/nI website was posted at approximately 7:00AM. During the December 2 sitting of the House, both the Official Opposition and the Third Party asked questions respecting the report by referencing the news articles. 1 During Routine Proceedings, but after Oral Questions, the report was tabled. The Government House Leader then raised a Point of Privilege: Before we get into petitions, I rise on a point of privilege. O’Brien and Bosc are very clear, which are the legislative authorities and the procedure and practice of the Legislature of the House of Assembly, as well as the House of Commons.

Under the Joint Committee on Parliamentary Privilege, there ore some types of contempt. This was written in the O’Brien and Bosc book. I’m going to use this as one of the most serious, egregious issues around protected documents and privileged documents — I’m quoting from the book itself — “divulging or publishing the content of any report or evidence of a select committee before it has been reported to the House.” Today, in Question Period and throughout I guess, this morning, there has been public debate around a report that has just been tabled — literally, just been tabled in this House.

There have been a selectfew in this House ofAssembly — a very selectfew, Mr. Speaker — who would have had access to that report prior to your tabling it today. I can say that I think that it is a breach of privilege of all Members of this House and a breach of parliamentary practice that is very serious and could even be considered contempt of this House. I ask the Speaker to review the matter and make his considerations.2 1 Newfoundland and Labrador. House of Assembly. Hansard. December 2,2019, pp. 1172-1174; 1180-1181. 2 Ibid., p.1183.

(2) PrivilegesandElectionsCommittee ReporttotheHouseofAssembly September2020 AfterhearingfurthercommentaryfromotherMembersandrecessingbrieflytoconsiderthe matter,SpeakerReidruledtherewasaprimafadecaseofprivilegebywayofcontempt: IwouldliketorulenowonamatterraisedbytheGovernmentHouseLeaderwithrespect totheapparentreleaseofareportoftheCitizens’Representative.O’BrienandBose,third edition,onpage142states:“Acomplaintonamatterofprivilegemustsatisfytwo conditionsbeforeitcanbeaccordedprecedenceovertheOrdersoftheDay.Firstthe Speakermustbeconvincedthataprimafaciecaseof...privilegehasbeenmadeand, second,themattermustberaisedattheearliestopportunity.” Withrespecttothetimingofthepointofprivilege,lamsatisfiedthattheMemberhas raisedtheissuewithinthetimerequired.Thepressreportwasthismorning,ondthe matterofthereleaseofinformationinquestionisstillevolving.

Withrespecttothefirstcondition,primafadesimplymeans:apparentonitsface.O’Brien andBosestatesthat:‘..theissueputbeforetheSpeakerisnotafindingoffact,itissimply whetheronfirstimpressiontheissuethatisbeforetheHousewarrantspriority considerationoverallothermatters,allotherordersofthedaythatarebeforetheHouse.” MaingotonParliamentaryPrivilege,page227,putsitthisway:“Doestheactcomplained ofappearatfirstsighttobeabreachofprivilege..,ortoputitshortly,hastheMemberan arguablepoint?IftheSpeakerfeelsanydoubtonthequestion,heshould...leaveittothe House.” Ifindthatthereisaprimafaciepointofprivilegebywayofcontempt.Disciplineof MembersispanoftheprivilegesofthisHouse,andthoseMembershavearighttothe informationcontainedinsuchareportbeforeitisreleasedtothepublic.Iaskthe GovernmentHouseLeadertomovehermotion.3 Ibid.,p.1187.

Privileges and Elections Committee Report to the House of Assembly September 2020 ORDER OF REFERENCE The Committee carried out its work in accordance with the resolution passed by the House on December 2, 2019.

The Government House Leader moved the following motion which, after some debate, was passed unanimously: I move, seconded by the Minister of Transportation and Works, that the matter raised as a question of privilege by myself earlier today and the responses made be referred to the Standing Committee on Privileges and Elections and the Committee submit its report to the House ofAssembly.4 The Committee understands its mandate to be to determine whether there has been breach of parliamentary privilege by way of contempt by the premature release of the report. Ibid.

PrivilegesandElectionsCommittee ReporttotheHouseofAssembly September2020 WORKOFTHECOMMITEE TheCommitteemettwiceinthewinterof2020,onFebruary11andMarch3,priortheCOVID 19pandemic.TheCommitteeresumeditsworkinAugust2020,andmettwicemoreonAugust 26andSeptember10. 1.TheCommitteediscussedtheresolution.Allmembersagreedontheseriousnessofthe issue. 2.TheCommitteereviewedrelatedmediareports.Itwasnotedthatthemediareports referencedTheMitchelmoreReportasthetitleoftheCitizens’Representativereport.In fact,TheMitchelmoreReportwasthetitleofthelargerCommissionerforLegislative StandardsReporttowhichtheCitizens’Representativereportwasappended(thetitleof theCitizens’RepresentativereportwasReportoftheCitizens’Representativeinthe MatterofaPublicInterestDisclosureMadeUnderPartVIoftheHouseofAssembly Accountability,IntegrityandAdministrationAct).TheCommitteeconcludedthatitwas thereforeimpossibletodeterminewithcertaintywhichversionofthereporthadbeen leaked. 3.TheCommitteereviewedatimelineofthemovementofbothreportsandalistof individualswhohadknownaccesstothereportswhilesubjecttoprivilege(thatis,prior totheCommissionerforLegislativeStandards’reportbeingtabledintheHouse).In reviewingthelist,theCommitteeconcludedthatthenumberofindividualstowhomthe reportshadbeencirculatedoriginally,inadditionstaffwhomayhavehadsecondary accesstothem(assistants,publicservants,etc.),wasunknownandperhapsunknowable. 4.TheCommitteediscussedthefeasibilityoffurtherinvestigationoftheidentityofthe individualwhohadperpetratedtheleak,aswellastheresourcesthatwouldhavetobe deployedtocarryoutaninvestigation. 5.TheCommitteecommissionedandreviewedajurisdictionalscanoflegislaturesforsimilar instancesofleakedconfidentialreports.Mostinstancesrelatedtodraftcommittee reportsordraftreportsofstatutoryofficers.

(5) Privileges and Elections Committee Report to the House of Assembly September 2020 In Alberta, the contents of two Auditor General reports and a report of the Ethics Commissioner were prematurely disclosed. The Speaker ruled that there was no prima fade case based on the fact that there was no parliamentary or statutory authority for a finding of breach of privilege.

The Speaker stated further that on the basis of the fact that the source had not been identified he would not have found a prima fade case of breach of privilege even if there had been statutory or parliamentary authority for such a finding, noting that a finding of contempt in the circumstances would ‘cast a cloud of suspicion’ over those who had the right to have advance copies of the documents.

The Speaker did state however that these matters should be taken seriously and that they demonstrated a blatant disregard for the statutory provisions that entitle Members to receive the reports before they are made publicly available.5 • The House of Commons Public Accounts Committee undertook a self-initiated review of a number of leaks of draft Auditor General reports which they referred to as breaches of privilege.

No action was taken as the sources were not known but the Committee concluded that premature disclosure of information in Auditor General reports represented a disregard of the statutory right of the House of Commons to receive these reports before their release to the general public, could interfere with and impede the work of the House of Commons, and constituted a contempt of parliament.6 • The Senate Committee on Rules and Procedures issued a report on the premature disclosure of an Auditor General report which had been ruled primafacie a breach of privilege.

The leaked report in question was a final, not a draft report, which the Senate committee acknowledged but pointed out that the categories of contempt were not limited. At p.14 the report stated “The unauthorized disclosure or leak of confidential information intended for a legislative chamber is considered a breach of parliamentary privilege.” The Senate report stated that the matter in question would fall under the corporate right of the Senate to regulate its internal affairs, sometimes referred to as exclusive cognizance. The Alberta. Legislative Assembly. Hansard, November 17, 2005, pp.1719-20. 6 canada.

House of commons. Standing committee on Public Accounts. The Premature Release or Leaking of Reports of the Auditor General to the Media before their Presentation in the House of commons. 2007. fGJ

PrivilegesandElectionsCommittee ReporttotheHouseofAssembly September2020 committeeconcludedthatitdidnothavetheabilitytoinvestigatethematterbut decidedtomakerecommendationsthatmighthelpforestallothersuchincidents.7 •InOntario,acommitteeconsideredtheprematuredisclosureofacommittee reportbutdidnotrecommendpunishmentasitcouldnotidentifythesourceof theleak.8 •InQuebec,theChairhasnothadtoruleontheprematuredisclosureofastatutory officerreport.TheNationalAssemblyhoweverdoesprovideforstiffpenaltiesfor breachesofitsprivileges-amaximumfineof$10,000fornon-Membersandfor MembersanumberofsanctionsthemostseverebeinglossofSeat.9 •TheNorthernIrelandAssemblyexperiencedaninstanceofaleakedComptroller andAuditorGeneraldraftreport.AninvestigationcommissionedbythePublic AccountsCommittee(PAC)wasinconclusive.Thematterwasreferredtothe CommitteeofStandardsandPrivileges.Thatcommitteeorderedasecond independentinquirythatmadenofindingoffactbutmaderecommendations.

TheInterimCommissionerofStandardswhohadconductedtheenquiryincluded inhisreportsomecommentsofMembersofthePAConthenegativeeffectofthe leaksonthemandtheircolleagues,forexample: otheleakingraisedissuesoftrustbetweenMembersandotherswhohad accesstotheiroffices; ocausessuspicionandunderminestrustbetweenMembers; ounderminesaccountabilitybetweentheAssemblyandtheExecutive; ohadaneffectonthenon-partisanpositionofthePACandhadthepotential toaffecttrustamongstMember; ojeopardizedtheworkoftheCommitteebutparticularlyinsensitive cases...; ohadunderminedthePAC’sscrutinyroleasithadledtodraftreportsnow beingmadeavailableforonlyashortperiodinadvanceofthemeeting; Canada.Senate,StandingCommitteeonRules,ProceduresandtheRightsofParliament.Reportonthecaseof PrivilegeRelatingtoLeaksoftheAuditorGeneral’sReportontheAuditofSenators’Expenses,April2017. aEmailfromofficialsfromtheLegislativeAssemblyofOntario,March13,2020;ONHansard,January16,1986,p. 3136.

EmailfromofficialsfromtheNationalAssemblyofQuebec,March19,2020.

(7) Privileges and Elections Committee Report to the House of Assembly September 2020 a caused Committee staff to feel they were being blamed for the leak.’° • In a case in Newfoundland and Labrador of a leaked report of the Privileges and Elections Committee, the Member responsible admitted the leak and was suspended for three days from the service of the House.

The Chair in tabling the report made the following comments that express sentiments similar to those above from Members of the Northern Ireland Assembly: “A Committee which meets in camera depends for its success on mutual trust among its members which must respect the confidentiality without which such a committee would be seriously hampered in carrying out its parliamentary duties”.11 6. The Committee reviewed the authorities on privilege and contempt.

The classic definition of privilege is that of Erskine May: Parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament and by Members of each House individually, without which they could not discharge theirfunctions, and which exceed those possessed by other bodies or individuals. Certain rights and immunities such as freedom from arrest or freedom of speech are exercised primarily by individual Members of each House.

They exist in order to allow Members of each House to contribute effectively to the discharge of the functions of their House. Other rights and immunities, such as the power to punish for contempt and the power to regulate its own constitution, belong primarily to each House as a collective body, for the protection of its Members and the vindication of its own authority and dignity.’2 The leading Canadian authority on privilege J.B. Joseph Maingot, Q.C., defines privilege as follows: 10 Northern Ireland. Northern Ireland Assembly. Committee on Standard and Privileges.

Second Report on the Unauthorised Disclosure of a Draft Report of the Public Accounts Committee. p. 33. ‘ NL Hansard, July 17, 1988, p. R3164. ‘2Sir Erskine May, Treatise on the Law, Proceedings, Privileges and usages of Parliament. 25th Edition (Online). Para. 12,

Part 2,

Chapter 12, https://erskinemay.parliament.uk/browse/?part=2&chapter=12 fsJ

PrivilegesandElectionsCommittee ReporttotheHouseofAssembly September2020 Parliamentaryprivilegeisthenecessaryimmunitythatthelawprovidesfor MembersofParliamentandforMembersofthelegislaturesofeachoftheten provincesandtwoterritories,inorderfortheselegislatorstodotheirlegislative work.Itisalsothenecessaryimmunitythatthelawprovidesforanyonewhile takingpartinaproceedinginParliamentorinalegislature.Inaddition,itisthe right,power,andauthorityofeachHouseofParliamentandofeachlegislative assemblytoperformtheirconstitutionalfunctions.Finally,itistheauthorityand powerofeachHouseofParliamentandofeachlegislativeassemblytoenforce thatimmunityandtoprotectitsintegrity.” Maingotdistillshisdefinitiontothefollowing: IfsomeoneimproperlyinterfereswiththeparliamentaryworkofaMemberof Parliament—i.e.anyoftheMember’sactivitiesthathaveaconnectionwitha proceedinginParliament—insuchacasethatisamatterinvolvingparliamentary privilege.AnoffenceagainsttheauthorityordignityoftheHouseisa TheleadingCanadianauthorityonparliamentaryprocedure,HouseofCommons ProcedureandPracticenotes: TheclassicdefinitionofparliamentaryprivilegeisfoundinErskineMay’sTreatise ontheLaw,Privileges,ProceedingsandUsageofParliament: ParliamentaryprivilegeisthesumofcertainrightsenjoyedbyeachHouse collectively..,andbyMembersof“eachHouseindividually,withoutwhichthey couldnotdischargetheirfunctions,andwhichexceedthosepossessedbyother bodiesorindividuals.

TherightsandimmunitiesaccordedtoMembersindividuallyaregenerally categorizedunderthefollowingheadings: •freedomofspeech; •freedomfromarrestincivilactions; •exemptionfromjuryduty; •exemptionfrombeingsubpoenaedtoattendcourtasawitness;and 13J.P.JosephMaingot,ParliamentaryPrivilegeinCanada.SecondEdition,p.13. 14Ibid.,p.14.

Privileges and Elections Committee Report to the House of Assembly September 2020 • freedom from obstruction, interference, intimidation and molestation.

The rights and powers of the House as a collectivity include: a the exclusive right to regulate its own internal affairs (including its debates proceedings andfacilities) and • the power to discipline: that is the right to punish persons guilty of breaches of privilege or contempts and the power to expel Members guilty of disgraceful conduct.-15 Examples of breach of privilege include misconduct of individuals in the presence of the House or a Committee; refusing to attend as a witness when summoned, corruption of Members of officers; presenting forged or falsified documents.

Not every disregard for or attack on the rights of Members or of the House as a corporate body is a breach of privilege however. Offences against the dignity or authority of the House which do not fall amongst those that are enumerated and known are contempts and may also attract discipline or punishment. As House of Commons Speaker Sauvé stated in a 1980 ruling: Throughout the Commonwealth most procedural authorities hold that contempts, as opposed to privileges, cannot be enumerated or categorized. ‘.. while our privileges are defined, contempt of the House has no limits.

When new ways are found to interfere with our proceedings, so too will the House, in appropriate cases, be able to find that a contempt of the House has occurred. 16 Erskine May states on the subject of contempt: Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer ofsuch House in the discharge of their duty, or which has a tendency, directly or indirectly, to produce such results, may be treated as o contempt even though there is no precedent of the offence it is therefore impossible to list every act which might be considered to amount to a contempt as Parliamentary privilege is a 7iving concept’.’7 15 Marc Bosc and Andre Gagnon, House of Commons Procedure and Practice, 3rd edition, 2017, p. 58. 16 Canada.

House of Commons. Debates, October 29,1980, P. 4214. 17 Erskine May, Paragraph 15.2. fio}

PrivilegesandElectionsCommittee ReporttotheHouseofAssembly September2020 FINDINGS TheCommitteeconsideredtheinformationavailabletoitwithrespecttothepremature disclosureofthereportsoftheCitizens’RepresentativeandtheCommissionerforLegislative Standardsanddecidedthattheinvestigationthatwouldberequiredtoascertainthesourceof theleakwouldbeanimprudentuseofresources,humanandfinancial,anddecidedagainst undertakingsuchataskwhichwouldbeunlikelytoleadtoaresolutioninanycase.

TheCommitteefindshoweverthattheprematuredisclosureofreportsofstatutoryofficers submittedtotheManagementCommissionfortablingintheHouseisaseriousmatterandin principlesimilartothetypesofprematuredisclosurethathavebeenfoundbreachesofprivilege orcontempts.ThesedocumentswereintendedfortheHouseandshouldnothavebeenmade availabletothegeneralpublicbeforebeingprovidedtotheMembersoftheHouseforwhom theywereintended.

Whenthesourceofthesourceoftheleakisnotknownallthosewholegitimatelyhadaccessto theinformationbeforeitspublicreleasemaybe,toquoteaformerSpeakeroftheAlberta LegislativeAssembly,undera‘cloudofsuspicion’whichcaninterferewithworkingrelationships. IfMembersareunabletorelyontheircolleaguestomaintainconfidentialitytheirabilitytocarry outtheirparliamentarydutiesisimpaired.

ItappearstotheCommitteetheactionsofthepersonorpersonswhodisclosedthereport(s)of theCitizen’sRepresentativeand/ortheCommissionerforLegislativeStandardsprematurelyare anaffronttotheHouseandoffendagainstitsauthorityanddignity.Indifferentcircumstances theactionsdescribedwouldquitepossiblybefoundtobeacontemptandpunishable.

TheCommitteefindsthebreachofconfidentialitythatoccurredinthiscasetroublingand unworthyofaMemberoftheHouseofAssemblyorapublicservant.Inordertoobviatea repetitionofthistypeofoffencetheCommitteecommendstotheHousetherulingsofSpeakers oftheHouseofCommonsandSpeakersofotherlegislativeassembliestotheeffectthat questionsofprivilegeconcerningleakedreportswillnotbeconsideredunlessaspecificcharge ismadeagainstanindividual,organizationorgroup,andthatthechargemustbelevellednot f 1J

Privileges and Elections Committee Report to the House of Assembly September 2020 only against those outside the House who had made the material public, but must also identify the source of the leak within the House itself.18 18 Bosc and Gagnon, p. 1085.

(12) PrivilegesandElectionsCommittee ReporttotheHouseofAssembly September2020 RECOMMENDATIONS TheCommitteerecommendstotheHouseofAssemblythatitconsiderimplementingthe following: •thatdocumentstobetabledbystatutoryofficersbechanneledthroughtheClerk’sOffice anddeemedtabledtoobviatethepossibilityofprematuredisclosure; •thatcirculation/receiptofadocumentwhilestillprivilegedrequireanoathorother signedcommitmentnottodisclosetheContentsbyallthosewhohandleit;and/orthat investigatingofficersorbodieswritetoallpartiestoreceiveanadvancecopyofa privilegedreportremindingthemoftheirresponsibilitytofollowappropriateprocedures toprotecttheconfidentialitythereport,andnotreleasethecopytotheofficialuntila writtenacknowledgementoftheresponsibilitiesisreceived;19 •thatconsiderationbegiventoamendingtheStandingOrderstorequirethataMember raisingapointofprivilegeallegingprematuredisclosureofinformationidentifythe personresponsibleforthebreach; •thatMHAtrainingincludeasegmentontheprohibitionagainstprematuredisclosureof documentstobetabledintheHouse; •thattheMembers’ParliamentaryGuidebereviewedfortheneedofaspecificreference todeliberateprematuredisclosureofinformationasabreachofprivilege; •thatpriortotablingalldocumentsbewatermarked:“PrivilegedUntilTabled”;and/orthat allprivilegedreportscontainanotationwithinthereportitselfthatitisprivilegeduntil tabled; •thattrainingonprivilege,confidentiality,andrelateddocumentmanagementstandards (inthecontextofprivilegedreports)bepreparedandpresentedtoallstaffoftheHouse ofAssembly,includingcaucusstaff; 19StandingcommitteeonPublicAccounts,p.3. f13)

Privileges and Elections Committee Report to the House of Assembly September 2020 • that consideration be given to amending the Standing Orders or legislation to include a penalty for any person other than a Member who breaches the privileges of the Assembly; • that the Speaker make a statement in the House to remind Members, Statutory Officers and Civil Servants of their responsibility towards privileged documents; • that the Clerk of the House of Assembly write to the Clerk of the Executive Council to remind members of the Executive Branch that privilege is attached to certain documents to be tabled in the House of Assembly; and • that individualized markings be made on certain restricted documents so that their owner is identified. f 14)