April 5, 2012

Hon. Andrew Scheer, MP Speaker of the House of Commons Room 222-N House of Commons Mr. Speaker: As provided for under S.O. 48(2), please accept this letter as notice of my intention to raise a question of privilege immediately after Question Period today. I would note that this meets the criteria of being the first opportunity of raising the matter referenced below as provided for at p. 142 of House of Commons Procedure and Practice, 2nd edition. The substance of the question I intend to raise concerns government members response to statements and questions made in the House, April 4, 2012 in response to specific questions and statements related to matters arising from the 2012 Auditor General’s report.

Sincerely,

Bob Rae, MP

QUESTION OF PRIVILEGE April 5, 2012

Mr. Speaker on Tuesday of this week April 3, 2012 you had the honour of tabling in this House the 2012 Report of the Auditor General.

The Auditor General of course is an officer of Parliament and the reports tabled through you by his office are presumed to be an accurate reflection of the issues his office undertook to examine.

As such all members of this place operate on the assumption that the contents of the Auditor General's report, tabled by the Speaker are reliable enough to base not only questions and comments upon but for the government and if necessary Parliament to act upon whether through administrative reforms or legislative measures.

 

That is point number one. My second point concerns the contents of questions, answers or statements made in this place by members.

As the Speaker is well aware there are certain words and terms which are considered unparliamentary and when used by a member, the Speaker has the authority to sanction that member for the use of such terms.

One such term is the word "liar".

A member who uses that word when addressing another member is considered to have breached this rules of this House and is expected to apologize.

If no apology is forthcoming, the Speaker has the power and authority to sanction that member.

 

All members of this place have accepted this authority. The principle which supports the Speaker in this situation is the long standing tradition that all members are presumed to be truthful in this House.

At. p. 618 of O'Brien & Bosc it states: "The proceedings of the House are based on a long standing tradition of respect for the integrity of all members."

The presumption that all members of this House are speaking the truth based upon their knowledge of a particular issue is accepted by all members.

Speaker Fraser in a decision on a question of privilege (Debates, May 5, 1987, p.5765-5766) stated in part that the institution of Parliament enjoys, "the protection of absolute privilege because of the overriding need to ensure that the truth can be told."

So, Mr. Speaker I am beginning from the premise that all members Cabinet members included - who speak in this place are speaking the truth.

Mr. Speaker, I‘m reminded of Speaker Milliken‘s ruling on March 9, 2011. It dealt with the contradictory statements of the Minister for CIDA regarding KAIROS.

In his ruling where he ruled there was a prima facie case of privilege, Speaker Milliken said:

‗...members have argued that the minister has made statements in committee that are different from those made in the House or provided to the House in written form. Indeed, these members have argued that the material available shows that contradictory information has been provided. As a result, they argue, this demonstrates that the minister has deliberately misled the House and that as such, a prima facie case of privilege exists.‘

He quoted from a ruling delivered by Speaker Jerome on March 21, 1978, which said:

‘--the Speaker should ask himself, when he has to decide whether to grant precedence over other public business to a motion which a Member who has complained of some act or conduct as constituting a breach of privilege desires to move, should be not—do I consider that, assuming that the facts are as stated, the act or conduct constitutes a breach of privilege, but could it reasonably be held to be a breach of privilege, or to put it shortly, has the Member an arguable point? If the Speaker feels any doubt on the question, he should, in my view, leave it to the House.‘

At the time, the member for Scarborough—Rouge River indicated to the House, this ‗has confused me. It has confused Parliament. It has confused us in our exercise of holding the government to account, whether it is the Privy Council, whether it is the minister, whether it is public officials; we cannot do our job when there is that type of confusion.‘

Speaker Milliken also said, ‗the situation before us where the House is left with two versions of events is one that merits further consideration by an appropriate committee, if only, to clear the air.‘ The Chair then went on to say in his view there was sufficient doubt to warrant a finding of prima facie privilege in this case.

If that is the case there is a problem which requires your attention and I believe a ruling with respect to the matter of truthfulness in statements by members of the government.

Yesterday, I raised this matter as it concerns the Auditor General's 2012 report.

Chapter 2 of that Report entitled, Replacing Canada's Fighter Jets contains the following at p. 3 under the heading "The departments have responded":

National Defence, Industry Canada, and Public Works and Government Services Canada have accepted the facts presented in the chapter. Both National Defence and Public Works and Government Services Canada disagree with the conclusions set out in paragraphs 2.80 and 2.81. I would draw the Speakers attention to the last sentence which states that National Defence and Public Works and Government Services Canada disagree with the conclusions set out in paragraphs 2.80 and 2.81.

Given the severity of the situation which has been raised in regards to the issue of the F-35, and bearing in mind these two paragraphs appear in the Auditor General's Report under the heading "Conclusions", I wish to place these two paragraphs on the public record prior to raising the specific matter as regards privilege:

2.80 National Defence did not exercise due diligence in managing the process to replace the CF-18 jets. National Defence did not appropriately consult Public Works and Government Services Canada (PWGSC) on the procurement implications of the 2006 MOU for the third phase of the JSF Program or develop an appropriate plan for managing the unique aspects of the acquisition. Problems relating to development of the F-35 were not fully communicated to decision makers, and risks presented to decision makers did not reflect the problems the JSF Program was experiencing at the time. Full life-cycle costs were understated in the estimates provided to support the government‘s 2010 decision to buy the

F-35. Some costs were not fully provided to parliamentarians. There was a lack of timely and complete documentation to support the procurement strategy decision.

2.81 PWGSC did not demonstrate due diligence in its role as the government‘s procurement authority. Although it was not engaged by National Defence until late in the decision-making process, PWGSC relied almost exclusively on assertions by National Defence and endorsed the sole-source procurement strategy in the absence of required documentation and completed analysis.

Since the report was presented to the House, the government--through the Prime Minister, the Minister of Defence, the Minister of Public Works and Government Services, the Associate Minister of Defence and the Government House Leader have responded in a consistent manner.

The following are representative of the line of argument by the government:
o

"We do in fact accept the conclusions of the Auditor General, and we will in fact implement his recommendations." The Associate Minister of National Defence, April 3, 2012, Debates, p. 6849.

o

―We have said that we accept his conclusions.‖ The Minister of National Defence, April 4, 2012, Debates, p. 6898.

o

―We accept the conclusions of the Auditor General.‖ The Associate Minister of National Defence, April 4, 2012, Debates, p. 6898.

o

―I say to the member that our government believes very strongly that the Auditor General's recommendations and conclusions were accurate, and we agree with them.‖ The Minister of Public Works and Government Services, April 4, 2012, Debates, p. 6903.

o

―The government has clearly expressed, through the ministers here, the views we have that we accept the findings of the Auditor General and the recommendations.‖ The Government House Leader, April 4, 2012, Debates, p. 6903.

At no point has any member of the government stated in this place that both National Defence and Public Works and Government Services in fact "disagree with the conclusions" of the Auditor General a declaration which is clearly evident in the report itself.

In fact, as I have indicated, statements made in this House have been categorical - the government, according to the record of this place accept the conclusions of the Auditor General which as a point of fact is misleading, erroneous and best suited to an unparliamentary term.

The point I raise is not a matter of interpretation – It is clear that two completely different and contradictory versions of reality are being presented in this House by the Government.

In response the oral questions the Government accepts all conclusions of the Auditor General, while in written submission to the House through their response to the Auditor General‘s report, they reject several conclusions of the AG.

These two versions of reality cannot both be true. One must be a falsehood.

While it is not for the Speaker to determine what is fact – what is clear is that the two versions of reality leave this House with significant confusion on this issue. Indeed the two versions seem to be an attempt to deliberately confuse the House.

It should be noted that the Ministers in this House were apprised of the findings of the report prior to it being tabled in this House as is demonstrated by the fact that the report contains statements from the departments affected and how they have responded.

It is my contention that, based upon the conflicting versions of reality delivered by the government in this place in response to the Auditor General's report concerning the F-35 procurement process, that my privileges have been contravened.

If you find a case of privilege in this matter, I am prepared to move the appropriate motion.

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