The right of provincial legislatures to summon federal officials: Canada v Prince Edward Island.

• Author: Levy, Gary

The United States ban on the importation of Prince Edward Island potatoes following discover of potato wart disease in October 2000 gave rise to an interesting case of parliamentary privilege pitting the federal government against the PEI legislature. The issue arose when a committee of the legislature tried to summon officials from the Canadian Food Inspection Agency. On behalf of the agency the Government of Canada took the view that the Committee had overstepped its power and asked the court to quash the summons. The Committee, supported by an intervener, the Speaker of the Ontario Legislative Assembly, argued that the right of a Committee to require attendance of witnesses and production of documents is included among the inherent privileges of the Assembly and the court had no power to review the rightness, or wrongness, of a decision made pursuant to that privilege. This article looks at the arguments and the judgment by Justice Wayne Cheverie of the Prince Edward Island Supreme Court on January 14, 2003.

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On April 3, 2001, the Prince Edward Island Legislative Assembly passed a resolution referring what had become known as the "potato wart crisis" to its Standing Committee on Agriculture, Forestry and Environment". The Committee held hearings on the issue throughout the fall and winter. It made several reports to the Legislative Assembly and in each case Committee reports were received and adopted by the Legislative Assembly.

On September 24, 2001, Norman MacPhee, Chair of the Committee, invited representatives of the Canadian Food Inspection Agency (CFIA) to testify. This invitation was declined, although the Agency indicated its willingness to respond to written inquiries from the Committee. Some 900 pages of documents were provided. However, the Committee continued to indicate its desire to hear and question representatives of the CFIA. On November 9, 2001, the Clerk of the Legislative Assembly wrote to the CFIA that failing their attendance, the Committee would consider all of its options, including the issuance of a warrant as authorized by the Legislative Assembly Act.

When the Agency maintained its position Mr. MacPhee again wrote requesting input from CFIA officials to assist his Committee, and in turn the Island's potato industry, in avoiding a future crisis of this nature. In the same letter, the Chairman indicated the Committee did intend to forward a list of questions to the CFIA, but was also considering the option of issuing a subpoena to ensure the attendance of certain officials.

On December 12, 2001, the Committee heard from the provincial Minister and Deputy Minister of Agriculture and Forestry, as well as representatives of the Prince Edward Island Potato Board and the Potato Producers Association of Prince Edward Island. On the same day, the Committee met in camera and passed a motion to summon Don Love and David MacSwain of the CFIA to appear before it.

The Agency responded by going to court seeking an order to quash these summonses or at least, to obtain a declaration that Mr. Love and Mr. MacSwain be exempted from complying. In considering this case Justice Wayne Cheverie said there were four questions that had to be answered.

* Does the Legislative Assembly of Prince Edward Island have the power to summon witnesses and order them to produce documents?

* If the Legislative Assembly of Prince Edward Island does have this power, does it extend to the Committee?

* If the Committee has the power, should the witnesses, nonetheless, be exempt from the summonses?

* Does the Judicial Review Act of Prince Edward Island apply to the decision of the Committee?

The Power to Summon Witnesses

In their argument, the Agency recognized that Agriculture is an area of joint jurisdiction under section 95 of the Constitution Act, 1867. They also recognized the right of the Legislative Assembly to conduct inquiries. The root of the problem, they said, was that this inquiry constituted an investigation into the operation of a federal agency, and that was beyond the jurisdiction of the committee.

The Court found this premise to be...