Caught in an aggressive hunt for documents, Parliament is getting nowhere fast

Some amount of parliamentary gamesmanship is to be expected whenever and wherever MPs gather. But some days it's hard to look at the games being played and see how anyone — least of all Canadians — could be said to be winning.

The Conservative Party sent a fundraising appeal to supporters last week under the subject line, "Liberal corruption PARALYZES Parliament."

"Liberal corruption has grinded Parliament to a HALT," the party claimed in the email.

That's certainly one way of looking at the current state of affairs on Parliament Hill. According to the Conservative opposition, Parliament is paralyzed because the government refuses to abide by an order of the House of Commons.

Strictly speaking, though, the extent to which Parliament is currently paralyzed is most directly related to the fact that Conservative MPs continue standing to speak to a Conservative motion that the House of Commons must deal with before it can move on to other business. While Conservatives might believe they're justified in doing so, they are effectively filibustering the proceedings.

The Liberals, meanwhile, argue that what the Conservatives are attempting to do would be an abuse of parliamentary authority and a potential breach of Charter rights.

The roots of this odd struggle can be traced to a motion passed by the House before MPs went on their summer break.

With opposition MPs voting in favour and Liberal MPs voting against, the House adopted a Conservative motion on June 10 that ordered the government to turn over documents related to Sustainable Development Technology Canada, the federal agency that was shut down in June after the auditor general raised serious concerns about its management.

Such production orders are not unheard of, but in this case the Conservatives went a step further. According to the motion, the documents were to be provided to the House's law clerk, who would then turn them over to the RCMP.

Over the summer, the government responded — at least in part. Some documents were provided, but in some cases information was redacted and in other cases documents were withheld entirely, with the government citing privacy laws, solicitor-client privilege and cabinet confidence to explain the exclusions.

When the House reconvened on September 16, Conservative House leader Andrew Scheer stood on a question of privilege to complain that the government had not fully complied with the House's order. And he received a sympathetic hearing from Speaker Greg Fergus.

As Fergus explained in a ruling in late September, the House has broad power to demand disclosure and it's up to the House to decide whether its demands have been met.

But Fergus also acknowledged some of the unique issues raised by the original motion — in particular, the instruction that documents be turned over to the RCMP.

The RCMP isn't looking for Parliament's help

In a letter to the House law clerk in July, RCMP Commissioner Mike Duheme said that police had already reviewed the auditor general's findings on SDTC, among other reviews and information, and concluded that "the available reports do not identify any criminal offences or evidence of criminal wrongdoing at this time." (Duheme told reporters this week that investigations were ongoing.)

But Duheme also warned that the House turning over more documents to the RCMP could be unhelpful, or even risky.

"Before taking any investigative steps to access documents that may give rise to a reasonable expectation of privacy, the RCMP must comply with applicable legal standards to preserve the validity of any potential criminal investigation or prosecution," Duheme wrote.

"The Parliamentary production order does not set aside those legal requirements. For the reasons set out above, the RCMP's ability to receive and use information obtained through this production order … in the course of a criminal investigation could give rise to concerns under the Canadian Charter of Rights and Freedoms.

"It is therefore highly unlikely that any information obtained by the RCMP under the Motion where privacy interests exist could be used to support a criminal prosecution or further a criminal investigation."

Any information obtained through Parliament, Duheme added, would need to be segregated from an RCMP investigation.

"There is significant risk that the Motion could be interpreted as a circumvention of normal investigative processes and Charter protections," he said.

The prospect of the House ordering the release of documents for transfer to a third party — a law enforcement agency — does seem to raise rather serious questions about the use of Parliament's extraordinary powers. Even if there is no real debate about Parliament's authority or the government's obligation to obey the will of Parliament, it's still possible to debate how that authority and will should be exercised.

In light of such concerns, Fergus suggested Scheer's question of privilege be referred to a House committee for further study. Scheer subsequently moved a motion to do just that. If or when debate on Scheer's motion comes to an end, MPs could vote to refer the matter.

Scheer moved his motion on September 26. Two weeks later, the House is still debating it. Because it relates to a matter of privilege, the debate on Scheer's motion takes precedence over nearly all other business — unless or until the House has dealt with it, no government legislation can be brought forward or debated.

The Liberals have understandably seized on the RCMP's concerns, particularly as they relate to the Charter of Rights. The Conservatives have dismissed those concerns. Scheer also has suggested that the RCMP isn't required to look at whatever documents the House sends.

"The House order solely required the law clerk and parliamentary counsel to transmit the documents," Scheer told the House in September. "It has not obliged the RCMP to open the envelope or insert the USB key into a computer."

But if that's the case, what exactly is the point of this current fight?

The politics of parliamentary paralysis

For the Conservatives, the paralysis might be the point.

"It's just another reminder that after nine years of Justin Trudeau, everything is broken," Conservative Leader Pierre Poilievre said on Tuesday.

The Conservatives are no doubt happy to revive questions about mishandled or misspent funds — whether or not anything that happened at SDTC rises to the level of corruption. But they also probably aren't sad to be standing in the way of government legislation at a time when the Liberals are no doubt eager to move things forward.

The simple idea of dysfunction in Parliament surely also feeds into the Conservative Party's larger argument that it's time for an election.

If the Liberals could enlist the support of another party, they could move a motion of closure to force an end to the current debate and send the matter to a committee. The Conservatives might try to frame that as an attempt to bury the issue — but asking a committee to look into the situation is what Scheer moved to do two weeks ago.

For now, the Liberals seem keen to use this episode as evidence against Poilievre.

"When he is going after the rights of other Canadians, it's only a matter of time before his political vendettas come after the rights of all Canadians," government House leader Karina Gould said on Wednesday.

In the meantime, Parliament isn't doing much. Except generating fodder for fundraising emails.