Guilty: Harper Government Found in Contempt of Parliament

Jerry J. Fortin · March 21, 2011

It is solely at Parliament's discretion as to whether there is abuse or not. It is constitutionally Parliament's right alone to decide on contempt.

Yes, it's because minority governments since the whole notion of party majorities were invented towards the end of the 18th century are exceedingly rare and generally shortlived.

Whether it is or is not is irrelevant. What is relevant is that Parliament alone decides. The Tories knew this when they tried to abuse the notion of cabinet confidence. They asked for it, and they got it, and frankly, I think having the precedent of an entire government being held in contempt is a good thing, and should serve other Westminster countries like Australia and the UK, which may be facing their own periods of minority or coalition governments, in good stead. Reiterating for all the world to see that government's in our system are there and wield their powers because Parliament lets them is a positive step.

What you posted was similar to the use of the word "coupe" when the erstwhile coalition was trying to topple the Tories in 2008. It is the careful use of inappropriate terms to make the application of constitutional and lawful powers seem somehow illegitimate. It shows nothing but contempt for a constitutional arrangement that has served Britain and those countries she founded very well indeed for centuries.

The Tories are merely, and I'll repeat this so you get the point, they are merely the Government. Parliament is the body that ultimately decides these things. We can agree or disagree about whether these were sufficient grounds for contempt finding, but Parliament is not beholden to the Government's narrative. The Tories wanted this fight, they've been picking it time and time again. The Tories were the ones that abused power by attempting to foist an alien notion of executive privilege upon Parliament. Even the idea that cabinet confidences could somehow be hidden from Parliament (under the bizarre notion that the two pieces of legislation that define it somehow actually bound Parliament), but more to the point the blatant abuse of the notion of cabinet confidence, were clearly nothing more than attempts to hide information and tweak Parliament's nose.

And then there's this invalid and ugly sort of rhetoric, that somehow Parliament has overstepped a bound. Well, let me tell you Mr. Keepitsimple, the whole point of the English Civil War and the Bill of Rights, 1689, which are the very foundation of our constitutional arrangement, was that Parliament is not constrained in such matters, that Parliament's capacity and right to demand anything of the King or Queen and His or Her Ministers is boundless in nature. Your side lost the debate 362 years ago when Parliament lopped of Charles I's head in a graphic demonstration that the Government persists and holds powers only as Parliament sees fit.

Very well said.

Keepitsimple · March 21, 2011

We can agree or disagree about whether these were sufficient grounds for contempt finding, but Parliament is not beholden to the Government's narrative.

On that, we agree. I believe the government should have been taken to task - as they have been - but the finding should have been something less than "in contempt". After all, the Speaker's ruling was designed to compel the government to abide by the opposition's request - Parliament's request - for more information. As a matter of fact, both rulings were designed to resolve the situation and if they could not be - only then should the government be possibly found in contempt. The information supporting the summary that had been previously provided was supplied - albeit belatedly - and the government should be sanctioned for that.....but to now say "that's not enough" when they have all the information that is available is inappropriate. What they are now saying is that "we don't believe you've given us all the information". Well heck, an opposition party can always say that. It was very obvious that the Liberals and NDP had dug a hole so deep with their rhetoric that they had no choice but to follow through with the contempt charges. I mean, did you listen to Pat Martin and McGuinty? They were an absolute embarrassment.

Edited March 21, 2011 by Keepitsimple

ToadBrother · March 21, 2011

On that, we agree. I believe the government should have been taken to task - as they have been - but the finding should have been something less than "in contempt". After all, the Speaker's ruling was designed to compel the government to abide by the opposition's request - Parliament's request - for more information. As a matter of fact, both rulings were designed to resolve the situation and if they could not be - only then should the government be possibly found in contempt.

The Speaker was clear. There was a prima facie case for contempt. Whatever the Speaker's intentions were, and frankly I think you're reading a considerable amount into the rulings, the Speaker made it clear that Parliament decides the course of action. The Speaker's role in this is, as he said, limited, and Parliament decides the course of action.

The information supporting the summary that had been previously provided was supplied - albeit belatedly - and the government should be sanctioned for that.....

Belatedly? The did a document dump, much of which appears to be the text of the bills of themselves. In other words, they were still holding Parliament's rights in contempt. They could have done this weeks ago. As I said, they've earned the contempt of the House.

but to now say "that's not enough" when they have all the information that is available is inappropriate.

This is Parliament's power. Stop using words like "inappropriate", they are weasel words designed, as I said previously, to make a legitimate, lawful action of Parliament seem somehow illegitimate. Parliament alone decides whether those actions were appropriate or inappropriate. A document dump, to my mind, is a sign of continued contempt and disregard for Parliament's fundamental authority over the government.

What they are now saying is that "we don't believe you've given us all the information". Well heck, an opposition party can always say that.

Would you prefer the House ask the Sergeant-at-Arms to march into the Ministry of Justice with an order from the House ordering all documents be provided immediately? Parliament could have done that, too.

It was very obvious that the Liberals and NDP had dug a hole so deep with their rhetoric that they had no choice but to follow through with the contempt charges. I mean, did you listen to Pat Martin and McGuinty? They were an absolute embarrassment.

I'm sorry, how is it exactly that the Opposition dug a hole here? It is the Government that tried to invent this idea of executive privilege, and that attempt to undermine our constitution is an act of contempt on more than just a parliamentary level.

If not contempt, what would you prefer? What else would get it through the Government's head that Parliament commands it? A lecture in the House? Stern frowns for the Opposition for half an hour?

What do you think is an appropriate punishment for defying Parliament?

Keepitsimple · March 21, 2011

The Speaker was clear. There was a prima facie case for contempt.

You still don't get that part. The speaker did not rule that there was a case for contempt - he ruled that there was a case that a breach of priviledge may have occurred. The committee's job was to first see if the government would reasonably resolve the issue by providing enough information. Then they were to rule as to whether their had been a breach of priviledge. If they found that there was a breach of priviledge (in this, I agree that there probably was)...then in light of any additional information that was provided, they were to determine how serious the breach was.

I'm sorry, how is it exactly that the Opposition dug a hole here? It is the Government that tried to invent this idea of executive privilege, and that attempt to undermine our constitution is an act of contempt on more than just a parliamentary level.

The Liberals said they would find them in contempt even before they heard the first witness. They hada draft document prepared before the hearings were over. There was so much rhetoric thrown about by McGuinty......well, you get it.

What do you think is an appropriate punishment for defying Parliament?

I don't know the various rulings but I'll sure there is something other than "contempt"

Edited March 21, 2011 by Keepitsimple

Shakeyhands · March 21, 2011

The Liberals said they would find them in contempt even before they heard the first witness. They hada draft document prepared before the hearings were over. There was so much rhetoric thrown about by McGuinty......well, you get it.

See, I don't get your logic here. All the CPC had to do was provide the required information. It's so simple it defies logic as to why the felt the need not to provide it. Of course they are in contempt, of that there is absolutely no question.

How can you even defend them here?

ToadBrother · March 21, 2011

You still don't get that part. The speaker did not rule that there was a case for contempt - he ruled that there was a case that a breach of priviledge may have occurred.

Just what I said. The Speaker only rules that there may have been a breach, Parliament ultimately decides. The Speaker made it clear himself.

The Liberals said they would find them in contempt even before they heard the first witness. They hada draft document prepared before the hearings were over. There was so much rhetoric thrown about by McGuinty......well, you get it.

Parliament is not a judiciary, it makes its own rules. You seem to be expecting that this will abide by the niceties of courtroom etiquette, but there's no such requirement. Since, by the time the committee heard the issue, the Tories still had not delivered what they had no right not to deliver at any point since the initial request was made, what else would that be but a breach?

I don't know the various rulings but I'll sure there is something other than "contempt"

The Committee, fundamentally, had three choices: find the Government in contempt, find that the document dump meant the Government wasn't in contempt, or ask for more information before making a ruling. The iterations of the first possibility is the recommendation of sanction or not (most contempt findings in Westminister Parliaments usually have no particular sanction, as I said earlier the last time there was a serious sanction was all the way back in 1913).

Beyond that, why should the Opposition cut the Tories slack? Because you like the Tories? Because a petulant document dump on the second-to-last day of the Committee's hearings somehow constitutes compliance? Because you feel there's some weight to spurious and unconstitutional claims about cabinet confidence binding Parliament's hands? Would the Tories, if they were in the Opposition's shoes show mercy on, say, a Liberal minority government?

Beyond that, how is what the Tories did not a breach of Parliament privilege? Do you feel that the Government has some right to withhold documents from Parliament, even after the House Law Clerk made it clear that the legislation enshrining the notion of cabinet confidence does not apply to Parliament itself, as Parliament is not a judicial body? Just what would you propose as a sanction?

Edited March 21, 2011 by ToadBrother

William Ashley · March 21, 2011

Of the conviction for the charge of contempt of parliament:

"(This) holds the government in contempt for the first time in Canadian history "

Really this is more or less equivocable to those days way back when in the English Civil war.. Parliament vs the Crown.... people probably don't recognize the signifigance of the finding.

However now the government NEEDS TO be brought to the bar and given its punishment (this could include imprisonment for an arbitrary term - of the government... or any other punishment deemed to suffice for the contempt)

Basically parliament can now act against parliament like a judge in a court (but without limitation - to the extant of powers of parliament at law)

For instance if this were deemed to suffice high treason - it could warrant the death penalty. For the government what that may be.

"There is no legally guaranteed immunity from Parliament's broad power"

http://www2.parl.gc.ca/sites/lop/infoparl/english/issue.asp?param=152&art=1030

Edited March 21, 2011 by William Ashley

Scotty · March 21, 2011

It is solely at Parliament's discretion as to whether there is abuse or not. It is constitutionally Parliament's right alone to decide on contempt.

All our understanding of how parliament works over the last half century is tossed up in the air when there's a minority parliament. Even then, most minority parliaments, and there have been very few, don't last very long. This one has lasted long enough for the opposition to play silly games with their 'majority' in committees. That's really all that's different.

Scotty · March 21, 2011

The Committee, fundamentally, had three choices: find the Government in contempt, find that the document dump meant the Government wasn't in contempt, or ask for more information before making a ruling. The iterations of the first possibility is the recommendation of sanction or not (most contempt findings in Westminister Parliaments usually have no particular sanction, as I said earlier the last time there was a serious sanction was all the way back in 1913).

Beyond that, why should the Opposition cut the Tories slack? Because you like the Tories? Because a petulant document dump on the second-to-last day of the Committee's hearings somehow constitutes compliance? Because you feel there's some weight to spurious and unconstitutional claims about cabinet confidence binding Parliament's hands? Would the Tories, if they were in the Opposition's shoes show mercy on, say, a Liberal minority government?

You're being more than a little sanctimonious on this, as is the opposition. We all know that since they realized the power of their majorities on committees the opposition has basically gone on fishing expeditions, using their majorities to demand documents and information from a wide variety of ministries, searching for something they could use which would be politically damaging to the Conservatives. To see the Liberals in all their pompous self-righteousness talking about the sacred right of parliament is just plain laughable given most of these selfsame people were the ones treating Parliament like a voiceless rubber stamp to everything the Liberal government did.

And it's not like this committee gave a good goddam about what anything costs except insofar as they can use it as ammunition against the Tories. Just like they don't give a damn about document dumps, what's in them, or anything else. The sole purpose of their demands, and the sole purpose of their 'finding' of contempt is to score political points.

ToadBrother · March 21, 2011

You're being more than a little sanctimonious on this, as is the opposition. We all know that since they realized the power of their majorities on committees the opposition has basically gone on fishing expeditions, using their majorities to demand documents and information from a wide variety of ministries, searching for something they could use which would be politically damaging to the Conservatives. To see the Liberals in all their pompous self-righteousness talking about the sacred right of parliament is just plain laughable given most of these selfsame people were the ones treating Parliament like a voiceless rubber stamp to everything the Liberal government did.

Which is, I'm sure, all true. But that has been for over three hundred years Parliament's right. A government may certainly protest such requests, and if it feels that aggrieved about it, can turn to the electorate. What it cannot do, under any circumstances in our constitution, is actually try to hide anything from government. As the House's Law Clerk pointed out, not even normally secret cabinet notes and discussions are above Parliament. The notion of executive privilege is alien to our system of government. Parliament can hold the Government to as much or as little account as it so pleases, and just because an Opposition party once held a majority and hence had some shield against such demands does not bind that party to the same behavior in Opposition.

And it's not like this committee gave a good goddam about what anything costs except insofar as they can use it as ammunition against the Tories. Just like they don't give a damn about document dumps, what's in them, or anything else. The sole purpose of their demands, and the sole purpose of their 'finding' of contempt is to score political points.

Parliamentary privilege can be a messy, ugly, divisive and even wrongheaded business. Charles I certainly thought so. Didn't help him much, Parliament won the day, and it's that legacy we live with. Would you care to have it some other way? Go back to the history of Parliament. What do you suppose is more dangerous to the good governance, a Parliament that is a pain in the backside to a Government, or a Government that believes itself somehow above Parliament?

Answer that question honestly, and with history in mind, and you'll see why I am on the side of the Opposition, no matter how frivolous and pointless they may be. This isn't a partisan issue for me, I frankly think all the parties have been behaving beneath contempt for years. This is an issue for me of a fundamental principle more important than all of that, a principle for which a helluva lot of blood was shed, including a King's. To throw that away just because you think the Opposition is being sanctimonious and meddlesome is about as stupid and short-sighted as I could ever imagine.

ToadBrother · March 22, 2011

All our understanding of how parliament works over the last half century is tossed up in the air when there's a minority parliament. Even then, most minority parliaments, and there have been very few, don't last very long. This one has lasted long enough for the opposition to play silly games with their 'majority' in committees. That's really all that's different.

Oh B.S. The only difference is that the Government doesn't have a guaranteed majority. The issue doesn't disappear, Parliament still is supreme, it's just that the Government can muster the votes. As I have said repeatedly, a Parliament is free to give the Government as long a leash as it cares to (and it's a mighty long one in a majority government) or as little. That's Parliament's business, that's Parliament's right, and underlying the entire notion of Parliamentary privilege. This idea that somehow a minority fundamentally changes the rules that Parliament operates by is one that I find most disturbing, because it somehow presumes that Parliament exists solely as an organ of the Government, save at brief and shortlived moments. It is not, it is the master of the Government.

Edited March 22, 2011 by ToadBrother

cybercoma · March 22, 2011

Of the conviction for the charge of contempt of parliament:

"(This) holds the government in contempt for the first time in Canadian history "

Really this is more or less equivocable to those days way back when in the English Civil war.. Parliament vs the Crown.... people probably don't recognize the signifigance of the finding.

However now the government NEEDS TO be brought to the bar and given its punishment (this could include imprisonment for an arbitrary term - of the government... or any other punishment deemed to suffice for the contempt)

Basically parliament can now act against parliament like a judge in a court (but without limitation - to the extant of powers of parliament at law)

For instance if this were deemed to suffice high treason - it could warrant the death penalty. For the government what that may be.

"There is no legally guaranteed immunity from Parliament's broad power"

http://www2.parl.gc.ca/sites/lop/infoparl/english/issue.asp?param=152&art=1030

Not sure about this, but if the government is in contempt of parliament, wouldn't it be possible for the opposition to go the Governor General and say that they are no longer fit to govern? You wouldn't even need a confidence vote.

ToadBrother · March 22, 2011

Not sure about this, but if the government is in contempt of parliament, wouldn't it be possible for the opposition to go the Governor General and say that they are no longer fit to govern? You wouldn't even need a confidence vote.

While in theory the GG can dismiss a Government without it, that particular circumstance is only happened twice in the last two hundred years in the British Empire/Commonwealth; in 1834 when William IV dismissed the Lord Melbourne's government and asked the Duke of Wellington to forma government, and in 1975 when the Australian GG, Sir John Kerr, dismissed the government of Gough Whitlam and appointed the leader of the Opposition as a caretaker PM. (The other major interference by a GG was the King-Byng affair, but that involved the GG refusing to dissolve Parliament at the PM's request). I think, particularly since the serious questions raised by the Australian Constitutional Crisis, it would now be highly unlikely for the GG to do this without first having the House of Commons demonstrate its lack of confidence in the Government. Even in the Australian example, the GG dismissed the government because the wheels of Parliament had ground to a halt and, at least to the GG's eyes, there was no obvious way to break the deadlock short of appointing another government.

Keepitsimple · March 22, 2011

Which is, I'm sure, all true. But that has been for over three hundred years Parliament's right. A government may certainly protest such requests, and if it feels that aggrieved about it, can turn to the electorate. What it cannot do, under any circumstances in our constitution, is actually try to hide anything from government. As the House's Law Clerk pointed out, not even normally secret cabinet notes and discussions are above Parliament. The notion of executive privilege is alien to our system of government. Parliament can hold the Government to as much or as little account as it so pleases, and just because an Opposition party once held a majority and hence had some shield against such demands does not bind that party to the same behavior in Opposition.

Parliamentary privilege can be a messy, ugly, divisive and even wrongheaded business. Charles I certainly thought so. Didn't help him much, Parliament won the day, and it's that legacy we live with. Would you care to have it some other way? Go back to the history of Parliament. What do you suppose is more dangerous to the good governance, a Parliament that is a pain in the backside to a Government, or a Government that believes itself somehow above Parliament?

Answer that question honestly, and with history in mind, and you'll see why I am on the side of the Opposition, no matter how frivolous and pointless they may be. This isn't a partisan issue for me, I frankly think all the parties have been behaving beneath contempt for years. This is an issue for me of a fundamental principle more important than all of that, a principle for which a helluva lot of blood was shed, including a King's. To throw that away just because you think the Opposition is being sanctimonious and meddlesome is about as stupid and short-sighted as I could ever imagine.

Now that you put it in those terms.......I agree with everything that you said in this post.

Keepitsimple · March 22, 2011

By the way....look for The Star to have a huge headline on this.

g_bambino · March 22, 2011

I think, particularly since the serious questions raised by the Australian Constitutional Crisis, it would now be highly unlikely for the GG to do this without first having the House of Commons demonstrate its lack of confidence in the Government.

Yes, there has to be a confidence vote first. Michaelle Jean couldn't dismiss Harper as her prime minister just because the NDP, Liberals, and Bloc had collectively sent her a letter saying they'd formed a coalition and were going to pass a motion of non-confidence in Harper and the rest of Cabinet. Even though the Loyal Opposition had let their feelings and plans be known publicly, Harper still maintained every right to advise the governor general to do anything within her constitutional bounds, including prorogue parliament.

ToadBrother · March 22, 2011

Yes, there has to be a confidence vote first. Michaelle Jean couldn't dismiss Harper as her prime minister just because the NDP, Liberals, and Bloc had collectively sent her a letter saying they'd formed a coalition and were going to pass a motion of non-confidence in Harper and the rest of Cabinet. Even though the Loyal Opposition had let their feelings and plans be known publicly, Harper still maintained every right to advise the governor general to do anything within her constitutional bounds, including prorogue parliament.

While the Reserve Power to dismiss government without the advice of the Government is retained, I think most constitutional experts agree that for the Sovereign or their representatives to do it, there would have to be a substantial constitutional crisis; like, say, a Government refusing to step down after a loss of confidence, or in the case of Australia in 1975, an unbreakable deadlock that threatens to grind Government to a halt. In other words, it would require some substantial constitutional crisis to force the use of that power. Even in the Australian crisis, there has been considerable debate ever since as to whether Kerr used the power appropriately.

As extraordinary as finding a whole government in contempt of Parliament is (and I in no way want to minimize the importance of what is about to happen), it hardly can be described as a constitutional crisis. If we use previous findings of contempt as a guide, it does not necessarily even have to have any kind of sanction. The GG will not dismiss a government that still has the confidence of the House simply because the House has found it abused Parliamentary privilege. That is Parliament's business, and the GG has no involvement in it, unless there is a matter of confidence attached to the contempt motion. Parliament is free to set its own rules.

Edited March 22, 2011 by ToadBrother

Shakeyhands · March 22, 2011

By the way....look for The Star to have a huge headline on this.

I was at a local restaurant today and there was a copy of the Sun there, no mention in the paper at all of it... funny that.

bloodyminded · March 22, 2011

Oh B.S. The only difference is that the Government doesn't have a guaranteed majority. The issue doesn't disappear, Parliament still is supreme, it's just that the Government can muster the votes. As I have said repeatedly, a Parliament is free to give the Government as long a leash as it cares to (and it's a mighty long one in a majority government) or as little. That's Parliament's business, that's Parliament's right, and underlying the entire notion of Parliamentary privilege. This idea that somehow a minority fundamentally changes the rules that Parliament operates by is one that I find most disturbing, because it somehow presumes that Parliament exists solely as an organ of the Government, save at brief and shortlived moments.

I agree. And the particular behaviour of an Opposition on this or that point is, as you've beautifully delineated, not what's important here.

I think some people believe that a minority government should get the same priveleges as a majority government--which is a preposterous idea, based, as you say, on the notion that Parliament serves the Government.

And since, ultimately, it's votes that determine a majority or minority, the notion verges on the anti-democratic as well.

Molly · March 22, 2011

I agree. And the particular behaviour of an Opposition on this or that point is, as you've beautifully delineated, not what's important here.

I think some people believe that a minority government should get the same priveleges as a majority government--which is a preposterous idea, based, as you say, on the notion that Parliament serves the Government.

And since, ultimately, it's votes that determine a majority or minority, the notion verges on the anti-democratic as well.

More than verges! It is deeply undemocratic, no ifs , ands or buts about it.

Toadbrother, I can't tell you just how much I appreciate the clarity and patience with which you articulate this issue. Thank you.

August1991 · March 22, 2011

The Procedure and House Affairs Committee has just voted to find the Government in Contempt of Parliament. The motion will go to Parliament today, from what I understand, and there seems pretty good odds that it will be confidence motion, unless the Opposition wants to let the Tories release the budget.

TB, don't forget that this is a minority government so the opposition parties have a majority on the committee.

This vote is meaningless. What other result did you expect?

Yes, there has to be a confidence vote first.

Exactly. It is up to Parliament to decide whether the government has its confidence. Hence, the whole debate about whether we'll have an election or not.

It is deeply undemocratic, no ifs , ands or buts about it.

Gimme a break... Edited March 22, 2011 by August1991

bloodyminded · March 22, 2011

More than verges! It is deeply undemocratic, no ifs , ands or buts about it.

Yes, you're right. No sense in vaccilating on that point.

Toadbrother, I can't tell you just how much I appreciate the clarity and patience with which you articulate this issue. Thank you.

I second that. TB is the go-to poster here for Parliamentary issues.

Edited March 22, 2011 by bloodyminded

Scotty · March 23, 2011

I agree. And the particular behaviour of an Opposition on this or that point is, as you've beautifully delineated, not what's important here.

I think some people believe that a minority government should get the same priveleges as a majority government--which is a preposterous idea, based, as you say, on the notion that Parliament serves the Government.

And since, ultimately, it's votes that determine a majority or minority, the notion verges on the anti-democratic as well.

Yes, but we're all used to parliament being government's bitch, a bitch that begged and rolled over, and played dead with the flick of a government whip's finger. So it's easy to get into the mindset that the opposition ought to let the government govern. Then again, when you talk about 'anti-democratic' you have to bear in mind that if we grant a majority in parliament untrammeled freedom to do whatever they have the votes for we wind up with government which is chaotic and impossible in all but a majority situation. And as long as Quebec, in its innate bigotry and xenophobia insists on having its own separate party to represent it there is unlikely to be a lot of majority governments in Canada's future.

Edited March 23, 2011 by Scotty