Equity Chambers 43 Florence Street Ottawa, ON K2P 0W6 T: 613-237-4740 F: 613-232-2680 Paul Champ

pchamp@champlaw.ca

Our file 1351

March 14, 2012 BY EMAIL Chad Mariage Clerk Standing Committee on Access to Information, Privacy and Ethics 6th Floor, 131 Queen Street House of Commons Ottawa, ON K1A 0H8 Dear Mr Mariage: Re: Adam Carroll – Summons to Appear

We would like to confirm that, as legal counsel for Mr Adam Carroll, we have received the summons issued by the Standing Committee on Access to Information, Privacy and Ethics for our client to appear on Thursday, March 15, 2012. By this letter, I would like to advise that Mr Carroll will not be attending the Committee proceedings on March 15, 2012. He is still prepared to appear before the Committee by invitation, but, for the reasons discussed further below, we view the summons as unlawful, disrespectful and abusive. It is very disappointing that the Committee has chosen to proceed in this fashion. As explained in our previous communications, Mr Carroll did not refuse the invitation to testify. Accordingly, I fail to understand why the Committee would issue a summons to a witness who has not declined an invitation to appear. Again, my client is currently under doctor’s orders to restrict his activities. He is consulting with his doctor today to determine his fitness to appear and whether he can appear with some medical restrictions. Once I receive the letter from the doctor, I will share it with the Committee on the basis it will be received in confidence. As previously expressed, at that point I would like to confirm with you and the Committee the timing and modality of my client’s appearance, to ensure it is consistent with his medical restrictions.

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The Committee bears the legal duty to accommodate my client’s medical condition. The Supreme Court of Canada has held that even prerogative powers exercised by Cabinet are limited by the Canadian Charter of Rights and Freedoms. 1 In my opinion, Parliament and its Committees are also bound by the Charter, including the right to be free from discrimination on the ground of disability, as guaranteed by section 15(1) of the Charter. This includes the right to accommodation.2 It is our desire to facilitate Mr Carroll’s appearance before the Committee as soon as reasonably possible to bring this matter to a close and allow him to return to his private life. He is approaching this matter in good faith and is willing to appear before the Committee by invitation. However, this appearance will be by invitation, not compulsion. For the reasons set out below, it is our position that the summons is beyond the jurisdiction of the Committee and we decline to acknowledge it.

ETHI Committee has no jurisdiction to issue summons The Committee’s jurisdiction to send for persons is, like all of its powers, limited by the Committee’s mandate under the Standing Orders of the House or by any Order of Reference or instruction it may have received from the House. The Committee’s mandate is clearly set out in Standing Order 108(3)(h). It deals with specific matters that do not include the use of House of Commons resources, the ostensible reason for calling my client to testify. I would like to draw Committee members' attention to certain passages in House of Commons Procedure and Practice, 2nd edition. At page 985, the text reads: Like all other powers of standing committees, the power to report is limited to issues that fall within their mandate or that have been specifically assigned to them by the House. Every report must identify the authority under which it is presented. (underlining added)

1 2

Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441 British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3

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At page 1048, the text also states: First, it is useful to bear in mind that committees are creatures of the House. This means that they have no independent existence and are not permitted to take action unless they have been authorized/empowered to do so by the House. ...committees are free to organize their proceedings as they see fit provided that their studies and the motions and reports they adopt comply with the orders of reference and instructions issued by the House. And at page 879 of Procedure and Practice, we find the consequences of reporting to the House on a matter outside a committee’s mandate: Committees are entitled to report to the House only with respect to matters within their mandate. When reporting to the House, committees must indicate the authority under which the study was done (i.e., the Standing Order or the order of reference). If the committee’s report has exceeded or has been outside its order of reference, the Speaker has judged such a report, or the offending section, to be out of order. Speakers of the House have ruled on numerous occasions that committees may not study and report on matters falling outside their specific mandates.3 It should be noted that the Speaker’s rulings of March 14 and May 15, 2008 both dealt with reports from the Access to Information, Privacy and Ethics Committee—reports which were ruled out of order because the Committee had not respected the mandate given it by the House. It is perhaps worthwhile to quote the Speaker’s words from some of these rulings: While it is true that the House has given its committees broad mandates and significant powers, with such power and authority comes the responsibility of committees to respect their mandates and not exceed the limits of their authority. (April 2, 2009) Inherent in the power the House grants to its committees is the basic principle that each committee will respect its mandate. Implicit in the flexibility that committees have traditionally enjoyed is the understanding that they will be judicious in the exercise of their powers. (March 14, 2008)

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See, for example, Hansard for June 17, 2010; April 2, 2009; March 14, 2008; May 15, 2008; and June 20, 1994

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While it is the tradition of this House that committees are masters of their own proceedings, they cannot establish procedures which go beyond the powers conferred upon them by the House. (June 20, 1994) Moreover, the very matter at issue here has already been addressed by the House. On March 6, 2012, the Speaker ruled on a question of privilege raised by the Honourable Vic Toews. The first aspect of his question of privilege “concerned the use of House resources for the so-called vikileaks30 account on Twitter.” This is precisely the same basis for which the Committee has asked Mr Carroll to appear before it. The Speaker went on to say the following: The interim leader of the Liberal Party then rose to inform the House that he himself had intended to rise on a question of privilege, having been informed on February 26 that it was an employee of the Liberal research bureau who had been responsible for the vikileaks30 site. The interim leader offered his unequivocal apology and that of the Liberal Party to the minister. In view of this unconditional apology made personally by the member and on behalf of his party as a whole, and in keeping with what has been done in similar circumstances in the past, I am prepared to consider this particular aspect of the question of privilege closed. (underlining added) As a consequence of Mr. Rae’s apology and the Speaker’s ruling, the matter of the Vikileaks30 account was found not to be a prima facie violation of privilege and was not referred to the Standing Committee on Procedure and House Affairs for inquiry. The Access to Information, Privacy and Ethics Committee is clearly attempting to sneak in through the back door an inquiry into Vikileaks30 contrary to the Speaker’s ruling on this matter. Finally, there is the issue of a double standard being applied by the Conservative members of the Committee. The Conservative government had argued in the past that political staff should not be called before a committee to account for their actions and that the Member of Parliament who was their employer should be considered responsible. The recently retired Law Clerk and Parliamentary Counsel, Mr. Rob Walsh, in his appearance before the Procedure and House Affairs Committee on December 9, 2010, made the following statements in response to questions from members of the Committee, which was conducting an inquiry into the premature disclosure of a committee report by an employee of a Member of Parliament: In the circumstances of this case, Mr. Ullyatt, as an employee of the member—as all employees—arguably is prima facie acting under the direction of his employer. That

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may not always be the case, but one might, as a starter, assume that. The employer is responsible for the behaviour of the employee, as arguably there's a vicarious responsibility on the part of the member for the conduct of the employee where that conduct gives rise to a breach of privilege. In response to another question, Mr Walsh said: My understanding of circumstances like these is that if the individual is found to have breached privilege or to have acted in a manner that's contemptuous of the House, the individual is given an opportunity to purge the contempt, as it were. That's usually done by an apology. If the apology is found to be genuine and complete, and there are no other lingering mala fides at issue, the House or the committee might be happy with that. Now, do you want to go further and have a whipping, as it were, or whatever? What do you want to do? How much blood does the House need from any offending party before the matter has been adequately addressed? Mr. Rae, speaking as Mr Carroll’s employer, assumed responsibility for his actions and apologized to both the minister and to the House. The Speaker has ruled that the matter is closed. In light of the foregoing, it is clear that this Committee does not have the power to summon Mr Carroll to appear. Nevertheless, and as previously indicated, he remains willing to voluntarily appear and respect the invitation that was originally extended to him on March 8, 2012. Ultimatums and threats without legal foundation are unnecessary, undignified and abusive. To conclude, and further to our previous communications with the Committee, we are hopeful that the members are willing to work with us in good faith to make appropriate arrangements for Mr Carroll’s attendance at the earliest possible date. Again, once I have the doctor’s letter, I will forward it to the Committee and we can begin to canvass the matter with the pertinent information in hand. Yours truly,

Paul Champ

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