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Our file 1351

March 14, 2012

BY EMAIL

Chad Mariage

Clerk

Standing Committee on Access to Information, Privacy and Ethics

6th

Floor, 131 Queen Street

House of Commons

Ottawa, ON K1A 0H8

Dear Mr Mariage:

Re: Adam Carroll Summons to Appear

We would like to confirm that, as legal counsel for Mr Adam Carroll, we have received the

summons issued by the Standing Committee on Access to Information, Privacy and Ethics

for our client to appear on Thursday, March 15, 2012. By this letter, I would like to advise

that Mr Carroll will notbe attending the Committee proceedings on March 15, 2012. He is

still prepared to appear before the Committee by invitation, but, for the reasons discussed

further below, we view the summons as unlawful, disrespectful and abusive.

It is very disappointing that the Committee has chosen to proceed in this fashion. As

explained in our previous communications, Mr Carroll did not refuse the invitation to

testify. Accordingly, I fail to understand why the Committee would issue a summons to a

witness who has not declined an invitation to appear. Again, my client is currently under

doctors orders to restrict his activities. He is consulting with his doctor today to determine

his fitness to appear and whether he can appear with some medical restrictions. Once I

receive the letter from the doctor, I will share it with the Committee on the basis it will be

received in confidence. As previously expressed, at that point I would like to confirm with

you and the Committee the timing and modality of my clients appearance, to ensure it is

consistent with his medical restrictions.

Equity Chambers

43 Florence Street

Ottawa, ON K2P 0W6

T: 613-237-4740

F: 613-232-2680

Paul Champ

pchamp@champlaw.ca

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The Committee bears the legal duty to accommodate my clients medical condition. The

Supreme Court of Canada has held that even prerogative powers exercised by Cabinet are

limited by the Canadian Charter of Rights and Freedoms.1

In my opinion, Parliament and its

Committees are also bound by the Charter, including the right to be free from

discrimination on the ground of disability, as guaranteed by section 15(1) of the Charter.

This includes the right to accommodation.2

It is our desire to facilitate Mr Carrolls appearance before the Committee as soon as

reasonably possible to bring this matter to a close and allow him to return to his private life.

He is approaching this matter in good faith and is willing to appear before the Committee

by invitation. However, this appearance will be by invitation, not compulsion. For the

reasons set out below, it is our position that the summons is beyond the jurisdiction of the

Committee and we decline to acknowledge it.

ETHI Committee has no jurisdiction to issue summons

The Committees jurisdiction to send for persons is, like all of its powers, limited by the

Committees mandate under the Standing Orders of the House or by any Order of

Reference or instruction it may have received from the House. The Committees mandate is

clearly set out in Standing Order 108(3)(h). It deals with specific matters that do not include

the use of House of Commons resources, the ostensible reason for calling my client to

testify.

I would like to draw Committee members' attention to certain passages in House of

Commons Procedure and Practice, 2nd edition. At page 985, the text reads:

Like all other powers of standing committees, the power to report is limited to issues

that fall within their mandate or that have been specifically assigned to them by the

House. Every report must identify the authority under which it is presented.

(underlining added)

1Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441

2British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3

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At page 1048, the text also states:

First, it is useful to bear in mind that committees are creatures of the House. This

means that they have no independent existence and are not permitted to take action

unless they have been authorized/empowered to do so by the House.

...committees are free to organize their proceedings as they see fit provided that

their studies and the motions and reports they adopt comply with the orders of

reference and instructions issued by the House.

And at page 879 ofProcedure and Practice, we find the consequences of reporting to the

House on a matter outside a committees mandate:

Committees are entitled to report to the House only with respect to matters within

their mandate. When reporting to the House, committees must indicate the authority

under which the study was done (i.e., the Standing Order or the order of reference). Ifthe committees report has exceeded or has been outside its order of reference, the

Speaker has judged such a report, or the offending section, to be out of order.

Speakers of the House have ruled on numerous occasions that committees may not study

and report on matters falling outside their specific mandates.3

It should be noted that the

Speakers rulings of March 14 and May 15, 2008 both dealt with reports from the Access to

Information, Privacy and Ethics Committeereports which were ruled out of order because

the Committee had not respected the mandate given it by the House.

It is perhaps worthwhile to quote the Speakers words from some of these rulings:

While it is true that the House has given its committees broad mandates and

significant powers, with such power and authority comes the responsibility of

committees to respect their mandates and not exceed the limits of their authority.

(April 2, 2009)

Inherent in the power the House grants to its committees is the basic principle that

each committee will respect its mandate. Implicit in the flexibility that committees

have traditionally enjoyed is the understanding that they will be judicious in theexercise of their powers. (March 14, 2008)

3See, for example, Hansardfor June 17, 2010; April 2, 2009; March 14, 2008; May 15, 2008; and June

20, 1994

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While it is the tradition of this House that committees are masters of their own

proceedings, they cannot establish procedures which go beyond the powers

conferred upon them by the House. (June 20, 1994)

Moreover, the very matter at issue here has already been addressed by the House. On

March 6, 2012, the Speaker ruled on a question of privilege raised by the Honourable VicToews. The first aspect of his question of privilege concerned the use of House resources

for the so-called vikileaks30 account on Twitter. This is precisely the same basis for which

the Committee has asked Mr Carroll to appear before it. The Speaker went on to say the

following:

The interim leader of the Liberal Party then rose to inform the House that he himself

had intended to rise on a question of privilege, having been informed on February 26

that it was an employee of the Liberal research bureau who had been responsible for

the vikileaks30 site. The interim leader offered his unequivocal apology and that ofthe Liberal Party to the minister.

In view of this unconditional apology made personally by the member and on behalf

of his party as a whole, and in keeping with what has been done in similar

circumstances in the past, I am prepared to consider this particular aspect of the

question of privilege closed. (underlining added)

As a consequence of Mr. Raes apology and the Speakers ruling, the matter of the

Vikileaks30 account was found not to be aprima facie violation of privilege and was not

referred to the Standing Committee on Procedure and House Affairs for inquiry. The Access

to Information, Privacy and Ethics Committee is clearly attempting to sneak in through the

back door an inquiry into Vikileaks30 contrary to the Speakers ruling on this matter.

Finally, there is the issue of a double standard being applied by the Conservative members

of the Committee. The Conservative government had argued in the past that political staff

should not be called before a committee to account for their actions and that the Member

of Parliament who was their employer should be considered responsible. The recently

retired Law Clerk and Parliamentary Counsel, Mr. Rob Walsh, in his appearance before the

Procedure and House Affairs Committee on December 9, 2010, made the following

statements in response to questions from members of the Committee, which was

conducting an inquiry into the premature disclosure of a committee report by an employee

of a Member of Parliament:

In the circumstances of this case, Mr. Ullyatt, as an employee of the memberas all

employeesarguably is prima facie acting under the direction of his employer. That

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may not always be the case, but one might, as a starter, assume that. The employer

is responsible for the behaviour of the employee, as arguably there's a vicarious

responsibility on the part of the member for the conduct of the employee where that

conduct gives rise to a breach of privilege.

In response to another question, Mr Walsh said:

My understanding of circumstances like these is that if the individual is found to have

breached privilege or to have acted in a manner that's contemptuous of the House,

the individual is given an opportunity to purge the contempt, as it were. That's

usually done by an apology. If the apology is found to be genuine and complete, and

there are no other lingering mala fides at issue, the House or the committee might be

happy with that.

Now, do you want to go further and have a whipping, as it were, or whatever? What

do you want to do? How much blood does the House need from any offending party

before the matter has been adequately addressed?

Mr. Rae, speaking as Mr Carrolls employer, assumed responsibility for his actions and

apologized to both the minister and to the House. The Speaker has ruled that the matter is

closed.

In light of the foregoing, it is clear that this Committee does not have the power to summon

Mr Carroll to appear. Nevertheless, and as previously indicated, he remains willing to

voluntarily appear and respect the invitation that was originally extended to him on March8, 2012. Ultimatums and threats without legal foundation are unnecessary, undignified and

abusive.

To conclude, and further to our previous communications with the Committee, we are

hopeful that the members are willing to work with us in good faith to make appropriate

arrangements for Mr Carrolls attendance at the earliest possible date. Again, once I have

the doctors letter, I will forward it to the Committee and we can begin to canvass the

matter with the pertinent information in hand.

Yours truly,

Paul Champ