Pearson inquiry paper chase (Special Senate Committee on the Pearson Airport Agreements).

• Author: MacDonald, Finlay

Senator Finlay MacDonald was Chairman of the Special Senate Committee on the Pearson Airport Agreements. He retired from the Senate on January 4, 1998.

On May 4th, 1995, the Special Senate Committee on the Pearson Airport Agreements was established. Its mandate was to examine all matters leading up to and including the agreements to redevelop Terminals 1 and 2 at Toronto's Lester B. Pearson International Airport as well as circumstances surrounding cancellation of the agreements by the Liberal Government in 1993. The Committee was empowered to send for "persons, papers and records". Such powers were central to its ability to conduct a complete and thorough inquiry. This article explores the issue of obtaining full disclosure of documentary evidence from the government. It calls for changes to create an efficient and orderly way for future inquiries, be they parliamentary or judicial, to receive the documentation necessary for them to carry out their mandate.

The establishment of the Special Senate Inquiry followed a practice common over the years by which governments appoint Royal Commissions or Special Inquiries to deal with potentially sensitive political subjects. The technique is useful in that it takes a particular subject out of the day to day glare of parliamentary scrutiny. It also allows in-depth study, usually by a group with some expertise in the subject matter.

For the most part such inquiries have been allowed to do their work unimpeded by the government. However, this no longer seems to be the case. Recent inquiries have encountered frustrating, and seemingly insurmountable obstacles. For example the Inquiry into the deployment of Canadian Forces to Somalia faced numerous road blocks, most of which were erected by the very department that was being investigated. (1) Similarly the inquiry by Mr. Justice Krever into Canada's blood supply system was challenged by some of the most powerful figures in Canada's health establishment. These challenges dealt with the intent of the Inquiry to assign blame for a blood supply system that infected thousands of Canadians. (2)

Our Special Senate Inquiry had its own serious, albeit less publicised, problems throughout the entire term of its mandate. Ultimately the problems we faced became the subject of a report authored by myself as Chairman and the Vice Chairman, Senator Michael Kirby. (3) This article covers some of the main points in that report.

Background

Long before I undertook the task of chairing the Special Senate Committee, I had a preview of what was in store for us. I was at a meeting of the Standing Joint Committee for the Scrutiny of Regulations in December, 1994 when the Deputy Minister of Justice indicated that his department was in the process of finalising a paper on the powers of committees vis a vis witnesses and documents. I understood it to be a comprehensive update of the 1990 document issued by the Privy Council entitled "Responsibilities of Public Servants in Relation to Parliamentary Committees" and I requested a copy.

Seventeen months later, in May 1996, I again asked, this time as Chairman of a Special Parliamentary Inquiry, whether this paper would be made public. The Department of Justice had developed what could be a very helpful paper and would not release it because they argued that they were not in a solicitor-client relationship with the Senate. I should have known that troubled waters lie ahead. We began the paper chase without the guidebook written by the Department of Justice.

The powers of standing committees to deal with documentation and witnesses are set out in Rule 91 of the Senate Rules and in Standing Order 108(1) of the House of Commons. Ms. Diane Davidson, General Legal Counsel in the House, has written on the importance of these two provisions which include the innocuously-stated authority to "send for persons, papers and records." No distinctions are made between different types of documents or categories of witnesses. "The very simplicity of the words granting this authority would appear to belie the strength of the power thereby delegated. When coupled with the rights a committee enjoys as a constituent part of Parliament these are very full powers indeed." (4)

What these grants of power mean, of course is that, provided a committee's inquiry is related to a subjectmatter within Parliament's competence and within the committee's own order of reference, Committees have virtually unlimited powers to compel the attendance of witnesses and to order the production of documents.

The rights and powers of a parliamentary committee are little understood and have been rarely exercised. There may be a simple reason for this. No majority government would permit a Special House of Commons Committee to conduct a "post-mortem" on the...