Fairness in committees

• Published in: Canadian Parliamentary Review 2008-06, Vol.31 (2), p.23
• Main Author: Walsh, Rob
• Format: Article
• Language: English
• Subjects: Canada; Commissioners; Court hearings & proceedings; Justice, Administration of; Katz, Bobbi; Parliaments; Perjury; Tribunals & commissions
• ISSN: 0229-2548

Section 7 of the Charter requires that the "principles of fundamental justice" be applied in any legal process that might deprive a person of "life, liberty and security of the person." This would not apply to a witness. However, when a committee indicates to a witness that her testimony seems untruthful and calls upon her to explain her testimony or face citation by the House for contempt, one might argue that the witness is no longer merely a witness but a person faced with a possible charge (contempt) for which a penalty could be imposed (incarceration). If we applied section 7 to the PAC proceedings, how would we apply the principles of fundamental justice? What is meant by "principles of fundamental justice" in section 7? The term "fundamental justice" under section 7 has been held1 by the Supreme Court of Canada to be more than the traditional common law principle of natural justice. The Court said that the principles of fundamental justice are to be found "in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system" and that this term "cannot be given any exhaustive content or simple enumerative definition." Not very helpful for our purposes, except to note that the Court refers to "our judicial process" and "our legal system." Proceedings of the House of Commons and its committees are not part of either judicial process or the legal system of this country. On the matter of independence, the peculiarity of the matter at issue is relevant here. We are talking about untruthful testimony given under oath by a witness. A judge in a court may decide that a witness has been untruthful, even where the judge is the one before whom the witness was untruthful. It is not .uncommon for a judge to publicly characterize a witness1 testimony as untruthful. Usually, the judge would simply say "I don't believe witness X" rather than use more damning language (although the judge could do so). This determination is integral to the judge's task of weighing the evidence before the court. If a judge in a court of law is entitled to say a witness has been untruthful, why can't a parliamentary committee do so? Also, a witness in court does not have the right to appeal the judge's finding about the truthfulness of the witness' testimony. Why can't this also apply to parliamentary committees and the House?