House of Commons Hansard #5 of the 37th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was food.

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10 a.m.

The Speaker

The Chair has received notice of a question of privilege from the hon. member for Yorkton--Melville. I will now hear the hon. member on the question of privilege.

Privilege

10:05 a.m.

Canadian Alliance

Garry Breitkreuz Yorkton—Melville, SK

Mr. Speaker, I rise today on a question of privilege regarding a matter that was raised in a previous session. On May 12 and May 16, 2003 the former government House leader raised the issue of parliamentary privilege exempting members from being called as witnesses in any court when the House is in session, specifically the decision of the British Columbia Court of Appeal on April 23, 2003 in what is known as the Ainsworth case.

The issue raised in that case was whether the Prime Minister could claim parliamentary privilege to provide legal protection against any action against him from the court for failing to attend an examination for discovery. He also raised the matter of a decision of the Ontario Superior Court with respect to another member involving Telezone Inc.

The latter was dealt with on January 6, 2004 when the Ontario Court of Appeal made a decision with respect to Telezone Inc. I believe that its decision satisfies the former government House leader, although a number of questions remain. The Ontario Court of Appeal ruled that the parliamentary privilege of a member of Parliament not to attend as a witness in a civil action applies throughout a session of Parliament and extends 40 days after the prorogation or dissolution of Parliament and 40 days before the commencement of a new session.

The case of the Prime Minister remains unresolved because the two cases are different. In the case of Attorney General of Canada, et al. v. Ainsworth Lumber Co. Ltd. (B.C.) (29842), the Supreme Court dismissed the application for leave to appeal. The Prime Minister still does not have the right to claim this privilege. The issue of whether or not he can claim this privilege remains unresolved. It is not clear whether or not the House agrees with the former government House leader in that the Prime Minister should be able to claim this privilege.

In his submission, the former government House leader on May 12, 2003 argued that in the Ainsworth decision, the B.C. court confirmed the existence of parliamentary privilege of members against participating in legal proceedings when Parliament was in session. The court recognized that this applied throughout the parliamentary session including adjournments and other periods when the houses were not sitting. However, the court ruled that there was no legal support for extending this privilege for 40 days before or after a parliamentary session.

The then government House leader felt the court's ruling raised an important issue. This is the question of whether it is the role of Parliament or the role of the courts to define what parliamentary privilege is.

On May 26, 2003 the Speaker ruled the matter was a prima facie question of privilege. He also agreed with some members that there was a need for an even-handed application of privilege with respect to the rights of other Canadians. He pointed to a suggestion that it might be appropriate for the House to revisit its current interpretation of the immunity that its privileges provide. He concluded by recognizing the special requirements of the House which make privilege necessary, that there is need to ensure that other citizens are not adversely affected by those privileges.

In particular, members had expressed concern during the debate on the question of privilege that the blind application of the rights of members, such as the right not to be compelled to appear before a court as a witness, might interfere unduly with the rights of others.

The matter was referred to the Standing Committee on Procedure and House Affairs. The committee's initial research revealed that there were two types of situations that can arise: one where a member is a party to a civil action, the case involving the Prime Minister; and one where the member is merely being asked to attend as a witness, the case involving the former member for Ottawa South.

The research claimed that while the parliamentary privilege to avoid appearing in court as a witness does not apply to the Prime Minister because he is named as a defendant in a civil action, the privilege can be claimed by Mr. Manley because he was not named as a party in the case and was simply asked to appear as a witness in the court. The recent decision from the Ontario Court of Appeal would confirm that finding.

The research also left many questions to be answered, such as whether the distinction between being a party to a civil action and being a witness is reasonable and should be reviewed. Should one privilege be extended or the other limited? How should these privileges relate to criminal matters? What is the privilege procedure for a member to claim these privileges? Given the privileges belong to the House of Commons, is the 40 day rule an appropriate length of time for the immunity of being a witness and from arrest, especially given that the parliamentary sessions in the Canadian Parliament are typically quite lengthy? Should the fact that there is a fixed parliamentary calendar for the House make a difference?

The 40 day rule arose at a time when parliamentary sessions were short. The members could not really leave the capital before, during or after a session. Should the ease of modern transportation be relevant? Should the 40 day rule be retained or shortened?

Mr. Speaker, as a result of prorogation, the terms of reference to the Standing Committee on Procedure and House Affairs has lapsed. Since a committee cannot on its own consider a matter of privilege without a reference from the House, I ask that you rule this to be a prima facie question of privilege to allow me to move the motion referring this matter to the Standing Committee on Procedure and House Affairs.

Privilege

10:10 a.m.

The Speaker

I thank the hon. member for raising this matter. As I indicated in the previous session, this was a bona fide question of privilege. Accordingly, in my view, the question remains a question of privilege. The committee did not completely report on the matter which it is entitled to do. Accordingly I give the hon. member leave to move his motion.

Reference to Standing Committee on Procedure and House Affairs

February 6th, 2004 / 10:10 a.m.

Canadian Alliance

Garry Breitkreuz Yorkton—Melville, SK

Mr. Speaker, I move:

That the matter of the question of privilege raised on May 12 and May 16, 2003 and February 5, 2004 be referred to the Standing Committee on Procedure and House Affairs.

Reference to Standing Committee on Procedure and House Affairs

10:10 a.m.

Brossard—La Prairie
Québec

Liberal

Jacques Saada Leader of the Government in the House of Commons and Minister responsible for Democratic Reform

Mr. Speaker, are we to understand that this is a motion for which the hon. member wishes no debate and for which he seeks unanimous consent? I did not understand the question he asked.

Reference to Standing Committee on Procedure and House Affairs

10:10 a.m.

The Speaker

It is not a question about unanimous consent of the House. It is a motion which has been allowed by the Speaker because there was a question of privilege.

Is it the pleasure of the House to adopt the motion?

Reference to Standing Committee on Procedure and House Affairs

10:10 a.m.

Some hon. members

Agreed.

(Motion agreed to)

Points of Order

10:10 a.m.

Canadian Alliance

Ken Epp Elk Island, AB

Mr. Speaker, I rise on a point of order. I would like to ask you to seek unanimous consent for the following motion:

That notwithstanding Standing Order 105, a special committee of the House be appointed to prepare and bring in a bill to protect our children from further sexual exploitation by immediately eliminating from child pornography laws all defences for possession of child pornography which allow for the exploitation of children, and that the membership of the committee be: Peter Adams, member for Peterborough, Ontario; hon. Reg Alcock, member for Winnipeg South, Manitoba; Carole-Marie Allard, member for Laval East, Quebec; hon. David Anderson, member for Victoria, British Columbia; Mark Assad, member for Gatineau, Quebec; Sarkis Assadourian, member for Brampton Centre, Ontario; hon. Jean Augustine, member for Etobicoke—Lakeshore, Ontario; hon. Larry Bagnell, member for Yukon, Yukon; hon. Eleni Bakopanos, member for Ahuntsic, Quebec; hon. Sue Barnes, member for London West, Ontario; Gilbert Barrette, member for Témiscamingue, Quebec; Colleen Beaumier, member for Brampton West—Mississauga, Ontario; Réginald Bélair, member for Timmins—James Bay, Ontario; hon. Mauril Bélanger, Ottawa—Vanier, Ontario; Eugene Bellemare, member for Ottawa—Orléans, Ontario; hon. Carolyn Bennett, member for St. Paul's, Ontario; Robert Bertrand, member for Pontiac—Gatineau—Labelle, Quebec; hon. Maurizio Bevilacqua, member for Vaughan—King—Aurora, Ontario; Gérard Binet, member for Frontenac—Mégantic, Quebec; hon. Ethel Blondin-Andrew, member for Western Arctic, Northwest Territories; Raymond Bonin, member for Nickel Belt, Ontario, hon. Paul Bonwick, member for Simcoe—Grey, Ontario; hon. Don Boudria, member for Glengarry—Prescott—Russell, Ontario; hon. Claudette Bradshaw, member for Moncton—Riverview—Dieppe, New Brunswick; hon. Scott Brison, member for Kings—Hants, Nova Scotia; Bonnie Brown, member for Oakville, Ontario; John Bryden, member for Ancaster—Dundas—Flamborough—Aldershot, Ontario; Sarmite Bulte, member for Parkdale—High Park, Ontario--

Points of Order

10:15 a.m.

The Speaker

Order, please. It seems to me that the hon. member for Elk Island is seeking consent of the House to move a motion to strike a committee and he appears to have gone far beyond anything like normal membership of committee already, in terms of numbers. He appears to be putting the whole House on the committee. He could move that we go to committee of the whole, but he is not doing that.

If there is more substance to his motion rather than names, I would like to hear it. Otherwise, I am going to put the question to the House whether there is consent for the motion, because the list seems to be endless and I do not think that is appropriate. The hon. member will want to put any more substance at the end of the list because I do not think it is necessary to read a list of the names of all the members of the House, which he appears to be doing.

Points of Order

10:15 a.m.

Canadian Alliance

Ken Epp Elk Island, AB

Mr. Speaker, I would then ask for your clarification. By what Standing Order am I not permitted to completely give my motion before you put it to the House?

Points of Order

10:15 a.m.

The Speaker

It is not a matter of a Standing Order. When a member is seeking to put a motion, it is normal for the member to put the motion succinctly. In this case his motion is unusually long because he is listing all the members of the House.

My point is that if we are going to do that, he can say, instead, that the membership of the committee can be agreed on later by the striking committee, which is common or the membership could be agreed on in a separate motion, which is common.

Matters of reference to committee do not normally contain all the members of the committee. Had he limited it to 15, or 16 or 17 members, which is our normal thing, I think the Chair might have let it go. However, it appears he has gone far beyond that already, with no end in site, in terms of names, because it appears an alphabetical listing. There comes a time when the Chair has to say we have to say yes or no.

I hope there is more substance to the hon. member's motion.

Points of Order

10:15 a.m.

Canadian Alliance

Ken Epp Elk Island, AB

Mr. Speaker, I would like to say in my defence that it is not possible, unless one is clairvoyant, to know exactly which words I am going to read.

I would like to also point out that it is a normal practice when one seeks the unanimous consent of the House to move a motion. There is no rule that I am aware of against the length of the motion, provided that it--

Points of Order

10:15 a.m.

The Speaker

I will help the hon. member. Standing Order 105 says:

A special committee shall consist of not more than fifteen members.

The hon. member is proposing a special committee. He has gone beyond 15 members. If he wants to persist, I will rule his motion out of order.

Points of Order

10:15 a.m.

Canadian Alliance

Ken Epp Elk Island, AB

Mr. Speaker, I would like to remind you that the first part of my motion said:

That notwithstanding Standing Order 105, a special committee of the House...

Then I went on. That is part of my motion. I would beg leave to simply continue with my motion. I would urge you to hear it.

I will carry on adding to the members, and I am going to miss a few so that you will notice that I am not in fact putting all members on:

hon. Gerry Byrne, member for Humber—St. Barbe—Baie Verte, Newfoundland; Murray Calder, member for Dufferin—Peel—Wellington—Grey, Ontario; John Cannis, member for Scarborough Centre, Ontario; hon. Elinor Caplan, member for Thornhill, Ontario; hon. Aileen Carroll, member for Barrie—Simcoe—Bradford, Ontario; Jeannot Castonguay, member for Madawaska—Restigouche, New Brunswick; hon. Martin Cauchon, member for Outremont, Quebec--

Points of Order

10:20 a.m.

The Speaker

Order, please. On another point of order, I am going to hear the government House leader. Obviously I have questioned the proceedings at the moment, and I will to hear the government House leader on this matter.