Willingly.
Evidence of meeting #6 for Procedure and House Affairs in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was witness.
A recording is available from Parliament.
Evidence of meeting #6 for Procedure and House Affairs in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was witness.
A recording is available from Parliament.
11:45 a.m.
An hon. member
Willingly.
11:45 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, I understand that the member is saying that the statement of fact, if you call it that here, is only a factual situation appreciated after the fact at some time later. You know, if I'm at a wedding and I think it's a wonderful wedding, and then later on it's found out that one of the parties to the wedding, the bride or the groom, was already married and so it was a bigamous, fraudulent marriage, well, I didn't know that. I was just sitting there at the wedding and doing my thing. Am I going to be blamed for attending a bigamous, fraudulent marriage? No, and if anybody said that I supported a bigamous, fraudulent marriage, I'd say, wait a minute, I just went to a marriage; I went to a wedding.
So in that sense, yes, you could be wrongly accused of participating and consenting to something that later proves to have been something other than what you went to. I don't know if that's the case here, but I take your point.
11:45 a.m.
Conservative
11:45 a.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Yes, thanks.
I think we've gone down a path that's kind of sterile here in that I don't think Professor Cotler's defence of why he and the Liberals were at Durban has anything to do with whether or not they realized, post facto, that it had turned into an anti-Semitic hatefest. He's quite clear that he thinks it was an anti-Semitic hatefest. His defence is that he was asked to stay by the Israelis in order to help mediate that.
So the line that Mr. Volpe is going down I don't think is the defence that Professor Cotler is going down at all. It's actually in complete contradistinction to it, and a contradiction of it.
But this raises the question, to me, that if it is the case that what Professor Cotler has asserted is correct, and when he was here as a witness in this case he based his defence of his actions on the fact that he'd been asked to...and he drew attention to an article published by Rabbi Melchior from Israel, who asserted that he had asked the Canadians to stay there. That article was published on the very day that Professor Cotler was appearing. Therefore, that information could not have been available to the authors of the ten percenter at the time the ten percenter was put out, which suggests that it was put out as a good faith assertion of all the facts that could have been knowable to the MPs putting it out at the time.
Now, would that constitute, in a case before the courts as opposed to being a point of privilege, a legitimate defence, or would that be seen as not being relevant?
11:45 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
Well, if you're into a fair comment issue, if you characterize it as a comment as opposed to a declaration of facts, one of the considerations is whether in fact the comment was honestly and fairly made. So it may well be a germane consideration that the facts weren't fully known, or could not have been fully known, by the person making the statement until some later point after the allegedly defamatory statement was made.
11:45 a.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Separately from that, Professor Cotler in his presentation to the Speaker, in asking for the initial ruling the Speaker eventually gave, said this had “prejudicially affected my ability to function as a member”. I think he was drawing reference to the suggestion, which I think you cited, of a member being found to be “obstructed in the performance of his or her parliamentary duties and functions”.
He then stated:
I might add that some of the responses to the flyers in my riding called upon me to leave Parliament...as I had betrayed that community. There could not be a more pernicious and prejudicial fallout from this damaging flyer as that which I have quoted, and I can tender the evidence to you, Mr. Speaker, for the record.
I would assume that it would be incumbent upon him to provide some evidence not of having negative publicity but of being impaired in his ability to function as a member of Parliament.
That raises the question, what does being “obstructed in the performance” of your parliamentary duties actually mean? Is there a definition that has come from previous rulings as to when one is actually obstructed in one's capacity to perform one's duties? That, presumably, would be highly relevant here.
11:50 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
There are two parts to the question, Mr. Chairman. One is the link between the allegation of breach of privilege and the need to establish there was an impairment or impediment in the member's ability to do his function.
Certainly, if you look at O'Brien and Bosc, starting on page 108, where they talk about this matter, and you go to page 110, where they're talking about physical obstruction, assault or molestation, obviously the facts will speak for themselves, whether in fact what took place was of a kind that would impair the member's ability to do his function.
But then, as I mentioned earlier, they also allow that non-physical means could be used to cause an obstruction or interference. It would appear from reading the text and the rulings that I've seen—we don't have a lot in this regard—there's a presumption that a sufficient assault on the reputation of a member would impair their ability to do their duty as a member of Parliament.
As I said earlier, I suppose that's acceptable in a scenario where the allegation or the comment made about the member goes to the moral character or person of the member of a kind that he or she would find themself unable to carry on his or her duties, if shunned in their community, shunned in the House and committees, and so on. That's an obvious example where, clearly, the member is not able to communicate freely with their colleagues because of the declaration or comment made about him or her.
Is there something short of this that would be sufficient? Well, it's for the committee to decide what constitutes an impediment.
When you talk about something like defamation or, in this context, a misrepresentation or an assault on the character of a member, it's very hard, whether in a parliamentary context or the legal context, always to get hard evidence to show that in fact it really is causing an impediment to the member's ability to do his or her duty as a parliamentarian, or the individual plaintiff citizen's ability to carry on their life normally in the community. It's kind of hard to.... Sometimes the evidence is there, but sometimes it may not be. Yet what was said was defamatory, and a plaintiff will win the action. They may not get much in the way of damages, because, as I said earlier, part of the objective is to get the court to say that what was said was defamatory, and that's important.
11:50 a.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
This is a court case, as opposed to a question of privilege, just to be clear.
11:50 a.m.
Conservative
11:50 a.m.
Conservative
11:50 a.m.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry, QC
Thank you, Mr. Chair.
Mr. Walsh, I am a relatively new parliamentarian, so I may need some clarification from you.
If, for example, I send a ten percenter to Maurice Vellacott's riding—a ten percenter congratulating Mr. Vellacott for finally being enlightened and now considering abortion as a woman's right to control her own body—he would have the right to say his privilege had been breached, given that he has announced publicly and repeatedly that he has found that abortion is linked to a greater risk of breast cancer. It would be his right to state that. This is similar to the example involving Mr. Stoffer, who publicly stated his beliefs about abolishing the gun registry.
In the case before us, as a member of the Standing Committee on Procedure and House Affairs, I can say that this is the first time that I have actually seen the text. We are talking about it, but I am not in a position to determine if the privilege has been breached or not, because I do not know the Liberal Party agenda by heart, and I do not know if these positions are true or false.
Basically, I understand that in order to determine if the committee has the authority to decide whether a privilege has been breached, we would have to listen to many witnesses who would argue that one thing is part of the Liberals' opinions, and the other is not exactly, and so on.
I received a ten percenter last summer—I do not recall which Conservative member sent it to my riding—saying that I was against protecting children because we voted against a Conservative bill. The ten percenter was extremely demagogic in its wording and how it was done. It seemed similar to what I am reading here today, that is, using phrases that have been taken out of context, that are not explained or properly qualified to explain my party's position on a private member's bill.
So in order to prove that I do not oppose the protection of children—on the contrary, I have three children myself and I very much support protecting children and oppose the trafficking of children—I had to explain myself to my constituents. In any case, the mail out was so demagogic that it had no credibility. In fact, it allowed me to have some discussions that helped me understand how the Conservatives go about manipulating public opinion.
In this case, to the best of my knowledge, these phrases were taken out of context and were basically used to cause the public to question the viewpoint of a member who, as we all know, advocates for and is an ardent defender of the Jewish community.
Our role, if I understand correctly, is to gather information on this issue in order to determine whether the facts before us were taken out of context or if they show that Mr. Cotler was unable to carry out his duties as a member of Parliament, because he was harassed or he was pressured by the Jewish community, or if it affected his work. In my opinion, the only way we can fulfill our role is by hearing witnesses. Judging by the witness list we received, we will then be better equipped to reach a decision.
Ultimately, once this work is done and if we find that privilege has been breached, what will happen then? You said you were open to anything. Can you tell me what was the strictest sanction a member of Parliament has ever received for a breach of privilege?
Can you please explain this to me, especially since you have been here a lot longer than me?
11:55 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
I would like to make several comments, but basically, you asked what happens when a privilege is found to have been breached. Mr. Godin asked the same thing.
I imagine the individuals responsible could be asked to issue a public apology in the House of Commons, for example, or to distribute another ten percenter in the riding indicating that the earlier claims were false.
These are some possible sanctions, but it is up to you to consider the matter.
11:55 a.m.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry, QC
What was the most severe sanction a member of Parliament has ever received for a breach of privilege?
11:55 a.m.
Bloc
11:55 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
Prohibiting the privilege of sending ten percenters anywhere in Canada for a period of six months, or something like that. I don't know. We can only imagine the possible sanctions.
11:55 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
O'Brien and Bosc gives three or four examples. In one case, I believe the case of Mr. Masse, the committee issued a report indicating that his reputation really had been unjustly damaged or a false statement had been made. But the House of Commons rejected the report. A consensus could not be reached in the House of Commons. The matter ended there.
Debate, either before the Speaker in the House or here in committee, is perhaps the answer. That is the only way to correct the problem.
11:55 a.m.
Bloc
11:55 a.m.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry, QC
Perhaps then the facts could be set straight publicly.
