Summoning and swearing of witnesses: experience of the Pearson Airport Committee.

• Author: Gary Levy

On December 13, 1995, a Special Senate Committee established to examine the agreements leading to the lease of Pearson International Airoport and the subsequent cancellation of the lease presented its final report, including a minority opinion and a study of certain procedural issues. This article looks at the Committee's experience in summoning witnesses and taking testimony under oath.

In March 1992 the Conservative Government of Brian Mulroney called for proposals to redevelop Terminals 1 and 2 at Toronto's Pearson International Airport. Two submissions were considered and on December 7, 1992 Paxport Inc. was judged to have the best overall acceptable proposal. The Government had concerns about the financeability of the 700 million dollar project so Paxport joined with the other bidder, Claridge Properties, to form the Pearson Development Corporation in early 1993. Several months of negotiations between the Government and Pearson Development Corporation followed until leases and other agreements were signed. Meanwhile, a federal election was called on September 8, 1993. On October 2, Prime Minister Kim Campbell gave authority to go ahead and close the deal.

During the campaign the Liberal Opposition demanded a review of the Pearson agreements. After the election Robert Nixon was asked to report to the new Prime Minister, Mr. Chretien, within 30 days. His report called for cancellation of the Pearson deal. It was accepted and the Pearson Development Corporation launched a suit for damages against the Government. Subsequently legislation was introduced to limit the Government's liability for these contracts but it stalled in the Senate where the constitutionality of the bill was questioned by the Conservatives who still held a majority in the Upper House. On May 4, 1995, after calls for a public inquiry were rejected, the Senate adopted a motion establishing a Special Committee composed of four Conservatives and three Liberals to look at the process leading to the Pearson agreements and the decision to cancel.

From the outset it was clear the Special Senate Committee would face unusual challenges and would have to resort to rarely used parliamentary procedures. For example, the Committee decided to take all evidence under oath and hired an independent Counsel, John Nelligan who was allowed to question witnesses. The final Report included a study by the Chairman, Senator Finlay MacDonald, and the Vice-Chairman, Senator Michael Kirby, on "The Power to Send for Persons, Papers or Records: Theory, Practice and Problems." It dealt mainly with relations between the Government and the Committee, particularly the manner in which thousands of documents were provided to the Special Committee.

Summoning Witnesses

Committees of the Senate and House of Commons routinely receive authorization to "send for persons, paper and records". Behind these innocuous words lies very extensive powers, including the power to summon. (1) In fact, few individuals who appear before Committees are formally summoned. Many ask to appear. Others are invited and are happy to accept. Witnesses who decline because of conflicting engagements or other difficulties are usually accommodated by a Senate Committee.

In this case an investigation into controversial public policy decisions relating to Pearson Airport would only be possible if the Committee was sure it could hear the witnesses it wanted when it wanted them. Therefore, the Committee made known its willingness to use its powers even though preliminary research indicated that no Senate Committee had summoned witnesses in almost a century. (2)

In the end only two of the sixty-five witnesses who appeared were summoned. In part this was because the Committee had a commitment from the Department of Justice, on behalf of the Government, to co-ordinate the appearance of all present and former public officials involved in negotiating the agreements. It was thought this co-operation would expedite the work of the Committee and reduce the possibility that public servants would have to be summoned.

The disadvantage of not following the usual approach of contacting public servants directly or through the responsible Minister was that it left the Executive, the very entity being investigated, a great deal of control in the way its case was presented to the Special Committee. And ultimately a couple of witnesses still had to be summoned.

The individuals summoned were both lawyers from the Department of Justice. At issue was the question of whether a legally binding agreement between the Government and Pearson Development Corporation existed on or before October 7, 1993 and what would have been the legal implications if certain documents had not been signed on October 7, 1993. Various Ministers, Chief negotiators, and other officials including the Deputy Minister of Justice had been asked about this, but none was able to give the Committee a satisfactory answer.

Through its Counsel the Committee asked the Department of Justice to make available the lawyers who worked on the file. The request was rejected. So on September 27, 1995 Senator MacDonald and Senator Kirby, wrote to the Deputy Minister of Justice, George Thomson, "We believe that it is crucial to the work of this Committee that we be able to question Messrs J. Pigeon and...