At the time this article was written Smirle
Forsyth was Assistant Clerk in the Ontario Legislative Assembly This is a
revised version of a paper presented to the 1983 annual meeting of the
Association of Clerks at the Table in Canada.
In recent years the growth in the complexity
of government has resulted in a substantial increase in the role of committees
of the House. In Ontario this was particularly true from 1975-1981 when there
was a minority government.
The growth in committee activity means a
corresponding increase in the number of witnesses who appear before legislative
committees, The role of witnesses who give evidence relevant to committee
enquiries is critical to the functioning of the committees.1 Through
the examination of witnesses, members of the Assembly obtain information
relevant to the committee's terms of reference. This allows for consideration
of issues in a more thorough, comprehensive and informal way than in the House.
In Ontario questions relating to the
appearance of witnesses have been the subject of considerable study during the
last decade The matter was considered by the Commission on the Legislature (the
Camp Commission) in its fourth report in 1975. The Commission recommended the
Standing Orders be amended to provide for rules governing the appearance of
witnesses before committees of the House and for their possible right to counsel.
The Select Committee on the Fourth and Fifth Reports of the Ontario Commission
on the Legislature concurred with the proposal but did not elaborate on the
In 1980, the Standing Procedural Affairs
Committee presented a report to the House which outlined certain basic
principles pertaining to witnesses before committees of the Assembly. It
recommended that the Attorney General refer the subject matter to the Ontario
Law Reform Commission for study and recommendation. Their subsequent Report is
a thorough and extremely valuable review of the rights and obligations of
witnesses appearing before the committees of the Ontario legislature.2
The Procedural Affairs Committee considered the
Law Reform Commission's recommendations and presented a report to the House on
December 9, 1982. It was of the opinion that the practices and conventions
concerning witnesses before legislative committees should be set out in as
clear and comprehensive a fashion as possible in a manual of practices rather
than being included in the Legislative Assembly Act or the Standing Orders. The
manual would offer guidance to members on what is necessary to provide adequate
protection for witnesses without establishing rigid procedures which could
frustrate the functioning of committees as effective instruments of
parliamentary investigation. The report of the committee was not debated and
remained on the Orders and Notices paper until prorogation of the session. Thus
despite all the studies and reports no action has been taken in any of the
Section 58 of the Legislative Assembly Act
provides for an oath to be administered for the purpose of examining a witness.
Clearly, the purpose of an oath or affirmation is "to prevent or
discourage rash, untrue and defamatory statements of fact or opinion". A
witness who makes a defamatory and untrue statement under oath could be subject
to prosecution for perjury under the Criminal Code of Canada. However, as the
Law Reform Commission points out, it is not essential to rely on the oath or
affirmation in order to encourage truthfulness or to provide a meaningful
sanction against witnesses who perjure themselves. Section 46 of the
Legislative Assembly Act provides that giving false evidence before a committee
constitutes contempt of the Assembly. The provision applies whether or not the
evidence was given under oath.
It has been the practice of a number of
committees to administer the oath to witnesses who have been requested or
ordered to appear and not to those persons who appear voluntarily. The
Commission was of the opinion that any distinction based on the category of
witness would amount to, and be seen as, an adverse comment on the
trustworthiness of a witness. The Commission, recognizing that individuals may
be seriously prejudiced as a result of evidence given at the committee
hearings, recommended that "where the rights or reputation of an
individual or the propriety of an individual's conduct are or may be involved,
as a matter of practice committees should employ the oath".3
This recommendation was adopted by the Procedural Affairs Committee and forms
part of its 1982 Report.
The Commission and the Procedural Affairs
Committee also considered the wording of the oath or affirmation given to
witnesses. To ensure the attention of a witness is specifically drawn to the
seriousness of giving false evidence to a committee. the Procedural Affairs
Committee recommended that the oath set out in the Legislative Assembly Act be
repealed and replaced with one to read as follows: 'The evidence you shall give
to this Committee shall be the truth, the whole truth, and nothing but the
truth, well knowing that it is a serious offence to give false evidence with
intent to mislead the Committee. So help you God."
The Committee also recommended that the form
for the affirmation of witnesses who object to the oath on the grounds of
religious beliefs or scruples or who are incompetent to judge the meaning of an
oath be included in the Legislative Assembly Act in the following words: I
solemnly affirm that I will tell the truth, the whole truth, and nothing but
the truth, well knowing that it is a serious offence to give false evidence
with intent to mislead the Committee."
Power of Committees to Call Witnesses
The ability of a committee to obtain
evidence is an important factor in determining the scope of its enquiry A
committee possesses no authority except that given in its terms of reference by
the House. Therefore, a committee cannot require the attendance of witnesses or
the production of papers or things without the express authority of the House.
As a matter of course, the power to call for persons, papers or things is now
conferred on all standing and select committees pursuant to section 35 of the
Legislative Assembly Act. Without such authority being conferred. the
committees would have no power to invite persons to appear as witnesses or to
examine persons who offer to appear as witnesses.
The power of committees to obtain
information is very wide. Indeed, this power may be said to be virtually
unlimited. The 19th edition of Erskine May states:
A witness is, however, bound to answer all
questions which the committee see fit to put to him, and cannot excuse himself,
for example, on the ground that he may thereby subject himself to a civil
action, or because he has taken an oath not to disclose the matter about which
he is required to testify, or because the matter was a privileged communication
to him, as where a solicitor is called upon to disclose the secrets of his
client; or on the ground that he is advised by counsel that he cannot do so
without incurring the risk of incriminating himself or exposing himself to a
civil suit, or that it would prejudice him as defendant in litigation which is
pending, some of which would be sufficient grounds of excuse in a court of law.
Nor can a witness refuse to produce documents in his possession on the ground
that, though in his possession, they are under the control of a client who has
given him instructions not to disclose them without his express authority.4
Most witnesses, far from needing to be
compelled to give evidence, welcome the opportunity to appear before
committees. Witnesses are usually first requested to appear rather than
summoned. Very few persons disobey a Speaker's warrant to appear and give
evidence. In 1981, two public servants of the Government of Canada were
summoned to attend a committee to give evidence relating to the involvement of
a federal department and its officials in the collapse of a trust company. The
public servants appeared before the committee but declined to give evidence on
matters which they considered to be within the exclusive constitutional
jurisdiction of the Government of Canada. They argued that any evidence which
the committee sought would involve an enquiry by the provincial authority into
the policies, practices, views or actions of a department of the Government of
Canada and that it was beyond the authority of the Ontario Legislative Assembly
to require such testimony from a federal official. The Committee persisted in
its stand, against advice given on behalf of the Attorney General for Ontario,
and an action was subsequently commenced by the Attorney General of Canada in
the Divisional Court of the Supreme Court of Ontario to determine the matter
However, before the matter could be decided by the court, the House was
dissolved for an election and the action abandoned.5
If a witness summoned by a Speaker's warrant
fails or refuses to attend before a committee or refuses to give evidence or to
produce papers, the committee may report to the House the circumstances of the
matter and the House may find the person in contempt punishable under
provisions of the Legislative Assembly Act.
It has not been the Ontario practice to
differentiate between ministers, civil servants and public servants on the one
hand, and private citizens on the other hand with respect to the duty to attend
a committee when invited or summoned to answer questions and produce documents
The Ontario Law Reform Commission stated the "contention that there are
legal, as opposed to informal, traditional or conventional, limits on the
compellability of a civil servant or a public servant (or a minister) appears
to fly in the face of the clear language of section 35 of the Legislative
Assembly Act... The Act empowers the Assembly to compel the attendance and
testimony of any person before a legislative committee, and the sanction
imposed ... does not distinguish between classes of witnesses".6
Ontario committees have generally respected the doctrine of ministerial
responsibility and the anonymity and neutrality of the civil service.
Accordingly, they have restricted the types of questions asked civil servants
and have generally relied upon ministers to account for the conduct of their
officials and to answer questions of policy. If one respects the doctrine of
the paramountcy of Parliament, however, which demands that the Legislature must
have at its disposal whatever information is considered necessary to perform
its functions, one must reject the concept that ministers as well as civil
servants have a right to refuse to provide information. Should a conflict
occur, a committee or the House, as the final arbiter, may accept a person's
refusal to appear, to disclose information or to produce documents as
legitimate, or may effect a compromise. Such decisions will necessarily be
affected by conventions and practical politics.7
Protection of Witnesses
The 1980 Report of the Standing Procedural
Affairs Committee stated that "... the operation of parliamentary
committees is only vaguely understood by most people and... appearing before a
committee can be an intimidating experience".8 In such
circumstances, the conduct of a committee's hearings should always be fair to
witnesses and to persons about whom witnesses may comment. They should strike a
balance between what is necessary to achieve adequate protection for witnesses
and what is necessary to enable parliamentary committees to function
In Ontario the practice has been followed in
a number of committees of adopting the following procedures for the conduct of
hearings where the rights or reputation of a witness are in jeopardy or when
the conduct of a witness has been called into question:
- Each witness has been afforded the right to appear with his own
counsel to advise and assist him.
- Counsel for the witnesses have been permitted to make objections to
questions put to their clients and, in appropriate cases, to give reasons
for such objections.
- The right of such counsel to question his own client or any other
witness has been restricted so that all such questioning is required to be
done firstly by members of the Committee and secondly by members of the
Legislative Assembly who are not members of the Committee.
- Witnesses have been subject to recall by the Committee and have not
been excluded from the hearings while not giving their testimony
- Witnesses have been permitted to invoke the protection of the
Ontario Evidence Act and Canada Evidence Act.
In strict legal terms, there is no
obligation on a committee to inform a witness of his rights and duties and the
powers of the House to deal with defiant witnesses. The Ontario Law Reform
Commission recommended that 1n view of the generally foreign, and sometimes
intimidating, nature of committee hearings to many witnesses and also in view
of the fact that some hearings are of an 'investigatory' nature dealing with
the conduct of individuals, ...witnesses... should be advised generally of
their rights and duties when called to appear, and when appearing, before...
committees. and of the possible penalties for non co-operation"9
to ensure that witnesses understand the process fully.
The Commission recommended that an
explanatory brochure be prepared for the use of witnesses appearing before
committees and of the members of such committees. This idea was endorsed by the
Procedural Affairs Committee which recommended that persons requested or
summoned to appear before a committee should be sent a copy of the brochure far
enough in advance of their appearance to give the witnesses a reasonable
opportunity to read and comprehend the information on the role and powers of
committees and on the rights and duties of witnesses. The brochure would
contain the following information:
- a description of the procedures used in legislative committees:
- the powers of committees and the method of examination;
- the duties of a witness, including the duty to answer all questions
and produce all documents, if insisted upon by the committee;
- the rights of a witness, including the right to object to
questions. to request an in camera hearing and to request that all or part
of his evidence not be published. with the final decision resting with the
- when the oath or affirmation may be employed and the meaning of the
oath and affirmation:
- the statutory provision concerning failure to appear before a
committee or to produce papers or things or to give false or misleading
- the role of counsel at a legislative committee hearing.
This recommendation has not been acted upon.
One committee, however, the Standing Committee on Social Development, undertook
to advise witnesses appearing before it during its study of violence in the
family of their duties as witnesses.
There is no provision in either the
Legislative Assembly Act or the Standing Orders for a witness before a
committee to be represented by counsel. Legislative committees are the masters
of their own procedures and it is within their discretion to determine whether
a witness may have counsel and the role counsel may play. Committees have
permitted witnesses to have counsel present to offer professional advice and to
help a witness through hearings, especially in cases where a committee is
conducting an inquiry into a matter involving allegations of impropriety or
The role of counsel has generally been that
of advisor rather than representative, although counsel have been permitted to
object to procedures or lines of questioning pursued by committees and to
present evidence in support of a witness or his submission. In the 1978
hearings of the Standing Committee on Administration of Justice into the
conduct of George A. Kerr, QC, MPP, when he was Solicitor General, counsel to Mr.
Kerr, Arthur Maloney, was permitted to present a submission in support of his
client. The committee did not permit Mr. Maloney to cross-examine any of the
witnesses. It is always open to a witness or his counsel to approach a member
of the committee and request the member to ask a witness a specific question.
This was the procedure followed in the Kerr enquiry.
While the Ontario Law Reform Commission
recommended that the right of a witness to retain counsel should be expressly
recognized in the Legislative Assembly Act, the Standing Committee on
Procedural Affairs decided that it could not follow the Commission's
recommendations. To enshrine the right of counsel in the Act could create
difficulties and turn a committee into a court, particularly if counsel was to
determine his own role before a committee. The Standing Committee felt
committees should have the discretion to deal with the question of the role of
counsel. It recommended the following practices be appended to the Standing
- It is customary for a committee to give permission to a witness to
have counsel present at a committee proceeding.
- The committee has complete discretion in determining what role
counsel will play in any committee proceeding,
- Counsel does not have an automatic right to cross-examine any
- A committee may, in its absolute discretion, offer counsel the
opportunity to cross-examine: that opportunity may be withdrawn by the
committee at any time.
- It may be appropriate for a committee to offer counsel an
opportunity to cross-examine when the committee is of the view that a
witness has had his or her rights or reputation placed in jeopardy or when
the witnesses conduct has been called into question.
In the Canadian and British Parliaments
witnesses examined before the House or any of its committees are entitled to
the protection of the House in respect of anything that may be said by them in
their evidence. As Marcel Pelletier, Parliamentary Counsel and Law Clerk of the
House of Commons, has stated to the House Standing Committee on Privileges and
... the witness enjoys the same freedom of
speech as the member and the same immunity against any legal action. In a
recent publication, to which I referred a moment ago, my distinguished
predecessor, Mr Joselph Maingot, wrote on this matter, and I quote from page 34
of his Parliamentary Privilege in Canada: ...witnesses called before the
Committee would also be protected against civil or criminal action – except
that where the evidence was under oath, the witness may be charged with
perjury" Although the House has the power to punish severely a witness for
his bad conduct, it takes good care, however, to protect him against the
consequences of any evidence put forward pursuant to an order of the House.
Indeed, both Houses will consider as a breach of privilege the taking of court
action against anybody as a result of evidence given during proceedings of the
House or one of its cornmittees.10
The Law Reform Commission considered whether
there is a privilege of the Parliament of Ontario relating to evidence given by
witnesses before committees. The Legislative Assembly Act is silent on the
privileges which attach to the use of evidence given by witnesses before
legislative committees. Furthermore, there is no other statutory provision or
any Standing Order which deals with the subject. After a very thorough
discussion of the subject, the Commission concluded the privilege of freedom of
speech, in particular, has been held to arise from inherent necessity, a
necessity that is present in every legislative assembly. "Freedom of
speech is necessary not only for members, but also for witnesses before the
Legislature and its committees; the functioning of committees would be
substantially impaired if witnesses could not speak freely without fear of the
In light of some uncertainty concerning the
scope of the privilege in favour of witnesses appearing before committees, the
Commission felt that it was necessary to enact express legislation to define
the right of immunity so that the smooth operation of committees is not
impeded. "On the one hand, witnesses who fear that their protection is
rather less than absolute may well be reluctant to provide full and open
testimony at a committee hearing. On the other hand, witnesses who believe that
they are completely protected in respect of their oral and documentary evidence
may be lulled into a false sense of security."12
To resolve any uncertainty the Commission
recommended the enactment of statutory provisions to ensure that "a
witness who gives evidence at any legislative committee proceedings whether
such evidence is given orally, by way of affidavit, by the provision of
documents, or otherwise should have the right not to have any evidence so given
used against that witness in any subsequent proceeding, except in a prosecution
for perjury or for the giving of contradictory evidence, This protection should
be accorded automatically to all witnesses, whether they appeared of their own
volition, appeared at the request of the committee or were summoned to appear
by Speaker's warrant, and whether they gave evidence by means of the proposed
affirmation or not."13
On this point, the Procedural Affairs
Committee recommended to the House that the Legislative Assembly Act be amended
to provide that evidence given by a person before the Assembly or a committee
thereof shall not be used or receivable in evidence against the person in a
civil proceeding. The Committee noted that at the present time, evidence given
before the Assembly or a legislative committee cannot be used in a criminal
proceeding by virtue of section 13 of the Constitution Act, 1982, which states:
"A witness who testifies in any proceedings has the right not to have any
incriminating evidence so given used to incriminate that witness in any other
proceedings, except in a prosecution for perjury or for the giving of
In Camera Hearings
The matter of in camera hearings was also
the subject of certain recommendations by the Ontario Law Reform Commission.
Ontario committees occasionally hear evidence in camera but, as a general rule,
most committees place considerable store in their ability to conduct hearings
in open session. The Commission recommended that the current practice of
hearing evidence in open session be continued and encouraged. The Commission
made two further recommendations. In situations where it is known or
anticipated that evidence might tend to incriminate the witness, reflect
prejudicially on the reputation, character or conduct of the witness or another
party involve a sensitive, privileged or classified matter, or where for any
other reason the committee is of the view that the public interest would be
better served by holding the hearing in camera than by holding it in public,"
the Commission recommended that the proceedings be in camera.14
In situations where a committee is dealing
with a matter which is also pending in a court or before a judge for judicial
determination (including any quasi-judicial body constituted by the House), the
Commission recommended that committee proceedings should be held in camera
unless the Assembly deemed it to be in the public interest to hold a public
hearing. Such a recommendation recognized that a committee may call as
witnesses persons involved in a civil suit or criminal proceedings, that
witnesses at such hearings may be compelled to answer all questions and to
produce all documents in their possession, and that media coverage of such a
hearing could severely prejudice any judicial or quasi-judicial proceedings.
This was the very argument raised by counsel to the Attorney General for
Ontario during the hearings of the Standing Committee on Administration of
Justice into the collapse of several trust companies. In this case, the
Committee decided that, on balance, it would be in the public interest to hold
The Procedural Affairs Committee was of the
opinion that the question of in camera hearings should be left to the
discretion of committees subject to any instructions from the House to hold
hearings in camera The Committee recommended that committees should be guided
by the following practices to be appended to the Standing Orders:
- A committee will usually conduct its proceedings in open session;
however, it has complete discretion in deciding whether it wishes to
conduct its proceedings in camera.
- A committee may hold its proceedings in camera when, for example,
it feels that the evidence might or will tend to incriminate the witness,
reflect prejudicially on the reputation, character or conduct of the
witness or another party, involve a sensitive, privileged, confidential or
classified matter, or where for any reason the committee is of the view
that the public interest would be better served by holding the hearing in
- A committee may also wish to hold its proceedings in camera where
the matter under consideration is the subject of a pending civil or
The various reports dealing with witnesses
have been of interest and assistance to persons involved in the legislative
process. However, the responsibility for debating, adopting, modifying or
rejecting these recommendations rests with the House and, to date, the Ontario
Legislature has not considered them. As a result, there continues to be uncertainty
about the issue of witnesses before legislative committees. This uncertainty
may be detrimental not only to the persons who appear before our committees but
also to the legislative process itself. In certain cases it may, in fact,
seriously hamper the ability of committees to obtain evidence. If committees
are to receive full and complete testimony from witnesses and to ensure that a
person is not prejudiced as a result of proceedings in a committee, the
witnesses must be secure in the knowledge of their rights and their duties.
1. There has been some confusion in the
recent past as to the status of persons appearing before legislative committees
based on the circumstances under which persons appeared as witnesses. However,
it is now generally accepted that the term "witness" applies to any
person appearing before a legislative committee whether the person has been
invited or ordered to appear or whether evidence has been given under oath.
Neither the Legislative Assembly Act nor the Standing Orders distinguish
between different types of witnesses.
2. See, Ontario Law Reform Commission, Report
on Witnesses Before Legislative Committees, 1981.
3. Ibid., p. 20.
4. May, Treatise on the Law, Privileges,
Proceedings and Usages of Parliament, 19th edition 1976, p. 692.
5. Legislative Assembly, Standing Committee
on Administration of Justice, 4th Session, 31st Parliament.
6. Ontario Law Reform Commission, op. cit.,
7 Such was the case in 1981 when the
Standing Committee on Administration of Justice sought and received a Speaker's
warrant to require "the Minister of Consumer and Commercial Relations to
produce...all correspondence, interdepartmental memoranda, memoranda to file,
application forms, notes, files and such other documents as are in the possession
of any agency, board, commission, registry, branch or division of the Ministry
of Consumer and Commercial Relations relating to the collapse of Re-Mor
Investment Management Corporation. The material was not immediately forthcoming
and on a second report to the House, a compromise was reached whereby all
documents were delivered in confidence to a sub-committee of the Committee.
During these hearings, however, the Committee, in addition to examining the
Minister, chose to pursue questioning of civil servants and ordered them to
answer questions concerning their role in licencing the companies and in the
formulation of government policy in the field of trust company regulation.
Although these civil servants answered questions after being ordered to answer
by the committee, one may assume that they did so with agreement of their
minister. See Legislative Assembly, Journals, vol. 114, 1980, p. 213.
8. Legislative Assembly, Standing Procedural
Affairs Committee, Report on Witnesses Before Committees, 4th Session,
31st Parliament, pp. 4-5.
9. Ontario Law Reform Commission, op. cit.,
10. Canada, House of Commons, Standing
Committee on Privileges and Elections, Minutes of Proceedings and Evidence,
No. 23, Tuesday, 29 March 1983, pp. 49-50.
11. Ontario Law Reform Commission, op.
cit., p. 104.
12. Ibid., p. 111.
13. Ibid., p. 112.
14. Ibid., p. 76.