On April 10, 2008 the House of Commons found Barbara George, Deputy Commissioner
of Human Resources for the Royal Canadian Mounted Police, to have made
misleading or false statements in testimony to the Standing Committee on
Public Accounts during its hearings on the administration of the RCMP pension
and insurance plan. The Committee recommended unanimously in its Report
tabled on February 12, 2008 that she be found in contempt but that no further
action be taken. The decision raised questions about whether the Deputy
Commissioner had been treated fairly, about the relationship between the
Canadian Charter of Rights and parliamentary privilege and about the role
of parliamentary committees in carrying out investigations. This article
points out some important differences between parliamentary proceedings
and court proceedings.
There has been much public comment recently about how the House of Commons
Standing Committee on Public Accounts (PAC) did not treat its witness,
former RCMP Deputy Commissioner, Barbara George, fairly or in accordance
with the principles of natural justice. Although natural justice is a legal
term that is usually applied to courts or tribunals, arguably it might
also apply to parliamentary committees, mutatis mutandis. Fairness is a
We should all act fairly in our dealings with others, especially when discharging
a public duty or exercising a public authority. House committees recognize
the importance of acting fairly and are generally quite concerned that
their witnesses be treated fairly. Fairness and due process may not seem
evident from the often unruly and nasty partisan exchanges between committee
members or between committee members and the committee chairperson but
this is a different issue; we are concerned here only with the treatment
given to a person who appeared before a House committee as a witness.
Some take the view that parliamentary committees should conduct their proceedings
much as courts or public inquiries do, that is, requiring a prior exchange
of documents between opposing witnesses or allowing the cross-examination
of opposing witnesses. However, there are differences between parliamentary
committees and courts or public inquiries and one has to keep these differences
in mind. Secondly, one has to look at what natural justice or fairness
mean in the context of a parliamentary committee proceeding.
Some would argue that we look at the Canadian Charter of Rights and Freedoms
for indication of the rights enjoyed by every Canadian vis-à-vis government
or governmental bodies or authorities. These rights are meant to ensure
Section 7 of the Charter requires that the principles of fundamental justice
be applied in any legal process that might deprive a person of life, liberty
and security of the person. This would not apply to a witness. However,
when a committee indicates to a witness that her testimony seems untruthful
and calls upon her to explain her testimony or face citation by the House
for contempt, one might argue that the witness is no longer merely a witness
but a person faced with a possible charge (contempt) for which a penalty
could be imposed (incarceration). If we applied section 7 to the PAC proceedings,
how would we apply the principles of fundamental justice? What is meant
by principles of fundamental justice in section 7?
The term fundamental justice under section 7 has been held1 by the Supreme
Court of Canada to be more than the traditional common law principle of
natural justice. The Court said that the principles of fundamental justice
are to be found in the basic tenets and principles, not only of our judicial
process, but also of the other components of our legal system and that
this term cannot be given any exhaustive content or simple enumerative
definition. Not very helpful for our purposes, except to note that the
Court refers to our judicial process and our legal system. Proceedings
of the House of Commons and its committees are not part of either judicial
process or the legal system of this country.
Fundamental justice includes natural justice, a well established principle
underlying all legal proceedings where the decision-maker is acting in
a judicial or quasi-judicial manner. We can look to this legal rule for
some specific content on fair process. Parliamentary committees, of course,
do not act in such manner. Nonetheless, we might apply natural justice
to committee proceedings as a test of fairness.
There are two principles underlying natural justice: the right to be heard
and the right to an impartial decision-maker. The witness George was given
a hearing. Impartiality is an important component of natural justice. The
law does not require an actual demonstrated lack of impartiality or, conversely,
the actual, demonstrated presence of bias. One need only show that one
might have a reasonable apprehension of bias, an objective test.
The standards for reasonable apprehension of bias may vary depending on
the context and the type of function performed by the decision-maker, in
this case a parliamentary committee. A decision-maker must consider the
matter at issue with an open mind and weigh the particular circumstances
of the case free of stereotypes or other prejudicial assumptions. The apprehension
of bias must be a reasonable one. The test is what would an informed person,
viewing the matter realistically and practically and having thought the
matter through conclude. Would this informed person more likely than
not, think the decision-maker (PAC) did not consider the matter fairly.
Public officials have a duty to act fairly, that is, a person who will
be directly affected by a decision ought to have an opportunity to make
a submission to the decision-maker and to know the case that must be met
for a favourable decision. Fairness is a general procedural requirement
without imposing any particular procedural requirements. The particular
procedural requirements in each case will depend on several factors, such
as the nature of the decision to be made, the status of the decision (whether
determinative of the issue, whether appealable), the importance of the
decision to the individual affected and the legitimate procedural expectations
of the individual affected.
With respect to the George matter, the decision to be taken was whether
the PAC had received false testimony from the witness. The decision to
be taken by the PAC would not be final, but rather would depend on concurrence
by the House.
No doubt, the issue of truthfulness was important to the witness George,
but not any more important than it would be for any other witness giving
testimony to a court, tribunal or parliamentary committee. Of course, it's
damaging for a witness to be charged by a parliamentary committee with
untruthfulness, particularly someone holding a senior position with a public
institution such as the RCMP. But untruthfulness by a witness before a
parliamentary committee is also damaging to the greater public interest,
particularly from someone holding a senior position in a public institution
such as the RCMP. The importance to the witness of being taken as truthful
must be weighed against the importance of truthfulness to the public interest.
Finally, the witness had no basis to expect that the PAC proceedings would
be any different than the usual and time-honoured parliamentary practice
in respect of committees. The cross-examination of a witness by a lawyer
acting for another witness has never been allowed, either in a court or
a committee proceeding. Nor is it reasonable to expect that no member of
the committee would ever comment unfavourably on a witness' testimony.
Section 11 of the Charter sets out nine process requirements in respect
of cases where a person is charged with an offence under the Criminal Code
or other penal statute2. Clearly, committee proceedings are not proceedings
of this kind, at all. Nonetheless, section 11 provides an authoritative
source of what, at law, constitutes due process.
The first requirement is that the person be informed of the offence without
unreasonable delay. The record shows that Ms George was so informed and
Second, the person is to be tried in a reasonable time. This requirement
was met as the witness was heard only a few weeks after being informed
of the committee's concerns. There was no complaint from the witness that
she did not have enough time to prepare her defence.
Third, the person is not to be compelled to testify against himself or
herself. This requirement was also met as the witness was not compelled
to appear again before the committee but only invited to do so. A person
charged with an offence has the right to testify, but cannot be compelled
to do so.
Fourth, the person is to be presumed innocent until proven guilty and to
be tried by an impartial and independent tribunal in a public hearing.
The PAC did not make its determination until after witness George had had
an opportunity to explain her earlier testimony. While some members of
the committee may have appeared to have developed settled views on the
truthfulness of the witness before she appeared before the committee, others
may not have settled on the outcome. Given that it was a unanimous decision
of the committee to recommend contempt to the House, it seems to me unreasonable
to say that because some of the committee members might have pre-determined
the issue of truthfulness, that the committee as a whole was not open-minded
in approaching a decision of the matter of truthfulness. Presenting to
the witness allegations of untruthfulness, as the committee Chair did,
is not evidence of closed-mindedness but rather a necessary step in fairness
to the witness, that is, informing the witness of the case against her,
the case she has to meet. The committee gave the witness a hearing where
she was at liberty to fully explain her earlier testimony.
On the matter of independence, the peculiarity of the matter at issue is
relevant here. We are talking about untruthful testimony given under oath
by a witness. A judge in a court may decide that a witness has been untruthful,
even where the judge is the one before whom the witness was untruthful.
It is not uncommon for a judge to publicly characterize a witness' testimony
as untruthful. Usually, the judge would simply say I don't believe witness
X rather than use more damning language (although the judge could do so).
This determination is integral to the judge's task of weighing the evidence
before the court. If a judge in a court of law is entitled to say a witness
has been untruthful, why can't a parliamentary committee do so? Also, a
witness in court does not have the right to appeal the judge's finding
about the truthfulness of the witness' testimony. Why can't this also apply
to parliamentary committees and the House?
The remaining 5 requirements of section 11 clearly would not apply to parliamentary
It's of interest to note here that the Standing Committee on Access to
Information, Privacy and Ethics was presented with lawyerly due process
arguments from counsel for one of its witnesses in the so-called Airbus
matter. The legal counsel demanded an exchange of documents between his
client and another witness who was making allegations against his witness.
An exchange of documents between the parties is required in a court action.
This happens before the trial. The lawyer was treating the committee proceedings
as if they were a court proceeding and his client was a party to the legal
action. His client was a witness only.
Parliamentary committees do not adjudicate on legal matters as this is
the exclusive business of the courts. Committees do not act as public inquiries
on behalf of the Executive Branch in furtherance of its responsibility
for administering and enforcing the law. The constitutional function of
the House and its committees is to hold the Government (the Executive Branch)
to account, not to act on its behalf in the discharge of its duties.
Parliamentary committees are also charged with studying such matters (within
their mandates) as warrant a public review, with a view to possibly recommending
changes in the law or in the practices of the Government or to simply bringing
a matter to the attention of Canadians generally.
In addition, and not to be underestimated for its importance, parliamentary
committees provide an opportunity, in a public proceeding, for the governed
to face their governors and to tell them what they think on the matter
under consideration. When reports emerge in the media that put an individual,
whether a public official or former public official or a private citizen,
in a bad light on a matter of public interest the individual should have
an opportunity to defend himself or herself, in his or her own words, without
the technical limitations and adversarial challenges of a legal proceeding
of a court or a public inquiry. It's called free speech, protected by the
law of parliamentary privilege.
One might also see the differences between parliamentary committees, courts
and public inquiries in terms of their objectives. Parliamentary committees
do not seek to establish the truth on a matter in some final or authoritative
manner nor to effect justice on the matter at issue but rather to cause
the relevant issues to be aired and concerns to be identified for which
recommendations might be made by the committee for further study by the
Government with a view, perhaps, to introducing remedial legislation or
regulations and/or modifications to Government practices and policies.
Court proceedings, seek justice, whether criminal or civil. Legal rules
on the admissibility of evidence may cause relevant facts to be excluded
from consideration because it would be unjust were the facts to be admitted
in evidence: justice is more important than truth.
For public inquiries, however, factual truth is the primary objective.
The proceedings are much more disciplined than those of a parliamentary
committee and include cross-examination of witnesses by commission counsel
or lawyers having standing on behalf of parties who have a recognized interest
in the matter under inquiry. In the end, the Commissioner conducting the
public inquiry settles the relevant facts and may or may not make public
policy recommendations depending on the terms of the mandate from the Government.
The relevant facts are determined based on sworn evidence that is given
close scrutiny. Justice per se does not have priority in public inquiries
because no person is on trial. Facts have priority.
The George matter arose in the course of the PAC hearings on the administration
of the RCMP insurance and pension plans. The PAC was discharging its duty
in respect of matters raised by the Auditor-General, an Officer of Parliament,
in a report to the House. There can be no question about the propriety
of this undertaking by the PAC.
I have not reviewed the evidence before the PAC with reference to the truthfulness
of witness George. This is not relevant to the issue of fairness as a process
issue, which is my focus here. The substantive issue of whether or not
the witness George misled the PAC is a matter for the PAC and the House
to determine and not one on which parliamentary counsel can comment. In
human terms, as we all know, the test of one's truthfulness lies in the
eyes of the person to whom one is speaking; likewise with a parliamentary
committee. In legal terms, this determination requires fairness in the
process. In this case, in my view, the process was fair, even when measured
by legal standards that don't apply, and as fair as it ought to have been
in view of the nature of the proceedings.
The power of Houses of Parliament to punish for contempt parallels the
same power enjoyed by the courts. In a 1992 case, the Chief Justice of
the Supreme Court explained the court's powers as follows:
Both civil and criminal contempt of court rest on the power of the court
to uphold its dignity and process. The rule of law is at the heart of our
society; without it there can be neither peace, nor order nor good government.
The rule of law is directly dependent on the ability of the courts to enforce
their process and maintain their dignity and respect. To maintain their
process and respect, courts since the 12th century have exercised the power
to punish for contempt of court.3
For a parliamentary committee, one might substitute the public interest
for the rule of law.
Finally the George contempt action is not , as many have said, the first
contempt since 1913. In November 2003 a witness before a committee of the
House was found unanimously to have provided misleading information. The
committee was of the view that the witness was in contempt. The committee's
action was described in the House as an exercise in fulfillment and in
support of the institutions of this House. The Government House Leader
offered this suggestion to the Speaker:
I suggest it is essential that in your ruling, Mr. Speaker, you should
make it very clear to every citizen who may come before a committee of
the House the responsibilities that he or she has for providing that committee,
and therefore by extension this House, with full and truthful information
and the consequences that may follow from a failure by anyone to uphold
In his ruling finding a prima facie breach of privilege, Speaker Milliken
made this comment:
Committees of the House and, by extension, the House of Commons itself,
must be able to depend on the testimony they receive, whether from public
officials or private citizens. This testimony must be truthful and complete.
When this proves not to be the case, a grave situation results, a situation
that cannot be treated lightly.5
The breach of privilege was then made the subject of a motion to the House,
That this House find [the witness] to have been in contempt of this House,
and acknowledge receipt of his letter of apology, tabled and read to the
House earlier today.6
This motion was adopted unanimously by the House.
1. Re: B.C. Motor Vehicle Act, 1985 CanLII 81 (S.C.C.).
2. 11. Any person charged with an offence has the right:
(a) to be informed
without unreasonable delay of the specific offence;
(b) to be tried within
a reasonable time;
(c) not to be compelled to be a witness in proceedings
against that person in respect of the offence;
(d) to be presumed innocent
until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal;
(e) not to be denied reasonable bail
without just cause;
(f) except in the case of an offence under military
law tried before a military tribunal, to the benefit of trial by jury where
the maximum punishment for the offence is imprisonment for five years or
a more severe punishment;
(g) not to be found guilty on account of any act
or omission unless, at the time of the act or omission, it constituted
an offence under Canadian or international law or was criminal according
to the general principles of law recognized by the community of nations;
if finally acquitted of the offence, not to be tried for it again and,
if finally found guilty and punished for the offence, not to be tried or
punished for it again; and
(i) if found guilty of the offence and if the
punishment for the offence has been varied between the time of commission
and the time of sentencing, to the benefit of the lesser punishment.
3. United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII
4. House of Commons Debates, Hansard, November 5, 2003 (Volume 138, no.
151, 2nd session, 37th Parliament).
5. Ibid., No. 152, November 6, 2003.