Fairness in committees.

• Author: Walsh, Rob
• Position: Administration of justice in the House of Commons

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.

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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 lesser standard.

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-a-vis government or governmental bodies or authorities. These rights are meant to ensure fair treatment.

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 held (1) 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...