A bid by the Conservatives to peek at the CBC's internal files is sparking a debate over parliamentary privilege, Charter-protected freedom of the press and the independence of the courts.
The Tories on the Commons access to information committee put forward a motion Thursday to have the CBC turn over files related to several access requests, to be examined by MPs in private.
The motion would involve both the records the CBC provided to the Canadian Taxpayers Federation, Quebecor Inc.’s media outlets, and the Friends of Canadian Broadcasting plus the records it held back.
The public broadcaster redacted or withheld certain documents citing its exemption under the Access to Information Act for journalistic, creative and programming activity.
The committee has been studying the CBC's legal battle with the information commissioner over who gets to review the documents it has decided to block. The CBC has argued that only a judge should be able to take a look at the records.
The CBC did not comment on the committee motion, which will be debated again Tuesday.
Also at play is the Broadcasting Act, which enshrines the CBC's independence by barring cabinet ministers from accessing its journalistic, creative and programming information.
“I think in order for the committee to determine how [the exemptions are]being applied and what changes should be made, that we should be reviewing the decisions that have been made, specifically with respect to these access to information requests,” said MP Dean Del Mastro, parliamentary secretary to the Prime Minister.
The NDP members on the committee immediately balked at the motion, and asked for a legal opinion.
NDP MP Charlie Angus says the committee is treading on the Federal Court of Appeal's territory, since the court is currently dealing with the dispute between the CBC and the information commissioner. Last month, a Federal Court judge refused a Conservative invitation to appear at the committee.
“This case would be completely undermined by demanding the CBC show unredacted documents without any sense of the legal limitations of what that means,” Mr. Angus said in an interview.
“It raises serious questions about the rights of journalists to have their notes protected – suddenly the Conservative party is going to be examining notes, unredacted notes.”
Quebecor Inc. president Pierre Karl Peladeau appeared at the committee in the place of two Sun News journalists after the company cited their journalistic independence.
Mr. Del Mastro said there is no indication that any of the access requests dealt with journalistic activities. For example, one Quebecor request was about CBC's fleet of vehicles. Another by the Friends of Canadian Broadcasting dealt with contracts handed to an American consultant.
The Commons was seized with some of the same issues of parliamentary privilege last year, when the opposition demanded the government produce top secret documents on the Afghan mission and detainees.
The Speaker of the House ultimately ruled that Parliament has an inviolable right to demand documents, and ordered the Commons to find a resolution. A special committee of MPs was struck to view the files.
But the detainee file touched on national security, not constitutional protections such as press freedom. Parliament has not had to grapple with parliamentary privilege and Charter rights very often, nor have the courts.
The Supreme Court of Canada ruled in 2005 that parliamentary privilege wasn't limitless, saying Parliament wasn't exempt from an employment discrimination case.
“The question is: would CBC go to court now, a new case, to get an order from the court to tell the committee you can't have this, then facing of course Parliament citing them for contempt...,” said Richard Dearden, an Ottawa-based media lawyer.
“It's a fascinating issue and the clash is the courts have certain powers to make sure their process isn't interfered with, and then you have Parliament saying ‘We're supreme we get to do our work and we want this information now.”’
Former Commons procedural clerk Thomas Hall said the CBC could mount a Charter challenge in the courts, that would create a very sticky situation where the constitutional rights of Parliament were pitted against another set of rights.
“I think a better way might be to look at what can the House of Commons do if the CBC refuses, and they're quite limited there,” Mr. Thomas said.
“They can send for the papers and order for them to be produced, but if the CBC refuses, they can cut the grants to CBC in the budget as punishment, they can demand that the officials come before the bar of the House and explain themselves, they can reprimand them in public and theoretically they can jail them, but then we get into Charter issues. I think [the CBC]would challenge that in court.”