A procedural note on the recent use of parliament's power to summons.

• Author: Lee, Derek

In December 2007 the Canadian House of Commons had to deal with a matter of Privilege involving its power to "send for persons, papers and records." The Standing Committee on Access to Information, Privacy & Ethics was studying a question of ethics following public reports that a former member/Prime Minister had received large cash payments from an individual at the end of the Member's mandate about 15 years ago. The Committee sought the attendance at public meetings of both that former Member and the cash donor, Karlheinz Schreiber and following passage of appropriate motions, the committee Clerk sent invitations and served orders to attend (styled as a summons). Both parties (after discussions through counsel and agents) indicated they would attend. But the fact that Mr. Schreiber was then actually in custody at a provincial facility under a federal judicial extradition order appeared to raise complications in arranging his attendance. It was also believed his removal to an overseas state and outside the jurisdiction of the Committee was imminent. This article raises some concerns about possible unintended consequences of the process that was used in the Schreiber case.

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The power to Send for Persons, papers and Records (similar to a power of subpoena in civil procedure) is one of Parliament's undoubted privileges and is reconfirmed in each new Parliament during the Throne Speech proceedings. Its roots are centuries old (1) but like so much of the British common law and Parliamentary heritage, the procedure has not been codified. In the Canadian House of Commons, that full power without any reservation (unless the House order otherwise) been given under Standing Order 108 to each of the standing committees. However, in most of their work, there is no need to use the formal "persons, papers and records" power since most committee witness appearances are by request and invitation. The House itself rarely uses that power. So it might be observed that a power of that scope, which is not codified, and rarely used, could easily be the subject of some misunderstanding.

The Committee was under several real time constraints, including the probable removal of Karlheinz Schreiber under the extradition process, where custodial authorities, 400 kilometers away in Toronto felt bound by the judicial order and were genuinely unfamiliar with the weight and priority of the Committee Parliamentary order. It was in this complex circumstance that...