Mr. Speaker, I rise today to speak to the motion put forward by the member for Saanich--Gulf Islands. This motion seeks to amend section (k) of the Gomery commission's terms of reference.
Let me begin by saying that I cannot and I will not support this motion. It seeks to make a fundamental change to the Gomery commission that would, in my submission, upset the entire process. Justice Gomery has been hearing testimony since last September and is scheduled, I understand, to conclude within the next week or two. It is very late in the game to start changing the rules, especially rules governing the mandate of this very important inquiry.
These rules are very clear. They are not arbitrary rules. There is no ambiguity in the rules. They are laid out in the Inquiries Act. They are much different than those of courts or tribunals because a public inquiry serves a much different purpose and in the context of the sponsorship program, the Gomery commission serves a very specific purpose in the government's course of action.
As my colleagues will remember, the Prime Minister, on his very first day of office, immediately cancelled the sponsorship program. Since then he has taken many definitive steps to deal with this particular issue. A criminal investigation has been launched. Comptrollers were put in every department to monitor government spending. New rules and ethical guidelines were put in place for public office holders. A special counsel was appointed to recover lost funds. Civil claims were filed totalling almost $41 million against 19 companies and individuals, and the commission of inquiry into the sponsorship program and advertising activities was created. This is what is commonly referred to in Canada as the Gomery commission.
Each of these actions served a specific purpose. The Prime Minister and the government have been fighting corruption. We need to find the people responsible, but we also need to identify the different factors that allowed such wrongdoings to occur and that need to be changed to prevent further wrongs. This is the role of the Gomery commission.
I come before the House with a certain experience in this whole issue. I have served for the last three or four years on the House of Commons Standing Committee on Public Accounts. Last February when the Gomery commission was announced and even before other committees were up and running, the Prime Minister, as one of his steps, mandated the Standing Committee on Public Accounts to immediately start looking at this whole issue.
We went for about four or five months. We heard from about 80 or 90 witnesses. We did sit, between February and May of last year, four days a week and we heard from most people in government who had to do with the program, a lot of the private advertising firms, the bureaucrats, and the civil servants who actually operated the program. Although it was a lot of hard work, it was a very interesting and challenging experience.
I did find the allegations troubling and disturbing, and the people in Charlottetown did not send me to Ottawa to justify the unjustifiable or to defend the indefensible. They were very troubling sets of circumstances.
At the end of the day we wrote a report. It is a very good report. I am not sure that everyone in the House has read the report, but speaking from my own vantage point, we identified a lot of the systemic or general issues that caused this problem to arise.
It was a very small program, with about eight civil servants administering it on behalf of Public Works and Government Services Canada, but the program unfortunately was allowed to be established outside of what I consider to be normal government rules and regulations.
It did not appear to be subject to normal Treasury Board rules and regulations or the Financial Administration Act. In doing this, it is my opinion that the minister failed to operate this small department in the best interest of Canadians and especially Canadian taxpayers. His excuse was that he did not have time to operate or run his department. That was not a valid excuse.
In my opinion, the deputy minister also failed Canadians. It was his job to see that the program operated within the Financial Administration Act and within Treasury Board guidelines. The internal audit branch of the Department of Public Works also missed this particular situation on two occasions.
The Prime Minister, to his credit, took a number of steps. I will not go over each and every step but one of the steps he did take was to establish the Gomery commission and to give it a very broad mandate which is set out in section 13 of the Inquiries Act. In his opening remarks, Mr. Justice Gomery was unequivocal in his duty to Canadians. He had the duty to find responsibility, to find misconduct and to ascribe responsibility.
As I indicated earlier, at the time the Gomery commission was established the previous member from Central Nova agreed with the mandate and said:
Well, they're certainly broad. There's no denying that the early indications are that the terms of reference will allow people to go where they have to go.
He certainly agreed with my comments back then but there have been some intervening factors and obviously, from his statement in the House in the last half hour, he has come 180° on this particular matter.
Now we have a motion before the House which I cannot for one minute support. As I can understand it, the Conservatives first want Mr. Justice Gomery to be given the power to find people guilty of criminal behaviour. Second, they want to give Mr. Justice Gomery the power to assign civil responsibility which would state that so and so owes so and so money.
That offends the charter of rights, the Criminal Code and all the rules of court of all 10 Canadian provinces and the 3 territories. We have in Canada a well-established system of criminal and civil law. If people want anything further they can go to the charter of rights where it is set out. It says that if a person is to be charged criminally he or she has to be charged. It has to be done by an indictment or under summary conviction. The offence is disclosed and the prosecutor is obliged to present the evidence as to what the charge is. Pursuant to the charter of rights, the person is entitled to retain and instruct counsel. There is a well-established body of evidentiary and procedural rules governing a criminal trial.
The roles of the investigative function of government and the prosecutorial roles are separated. The accused, after going through the charge, the evidence and the disclosure, is entitled to a trial, and the prosecutor, and this is very important, to get a guilty verdict, whether it be before a trial judge or a trial by jury, has to prove the case beyond a reasonable doubt.
If I understand the motion put forward today, all that I have said over the last five minutes is taken and thrown right out the door. The opposition motion asks that Mr. Justice Gomery be given the power to assign criminal responsibility. Let me give an example and take it to the end conclusion.
People are invited or subpoenaed to appear before the Gomery commission. They go and give their evidence to the best of their ability. They then go home but do not follow the inquiry that closely. Maybe three, four, six or nine months later they pick up one of the national newspapers and read that they have been found guilty of a criminal offence that carries a minimum sentence of six, eight or ten years. For anyone who may be listening, I should say that I am not making this up. The next step, if I follow the argument and the rationale that is being stated in this House, the next thing that will happen is that the police will put them in jail with a minimum sentence of six, eight or ten years.
I want to talk about the second part of the motion. Not only do the Conservatives want Mr. Justice Gomery to ascribe criminal responsibility, they want him to be given the power to ascribe civil responsibility. If this were to go on in Canadian courts under our system of jurisprudence one would assume it normally would start with a statement of claim, properly prepared, properly filed and properly served.
People need to know whether they are being charged criminally. They need to know whether they are being sued. Information, knowledge and disclosure are fundamental to the system. The statement of claim has to be properly filed and served so the people being charged have the ability, if they wish, to file a statement of defence. If there is any dispute that cannot be resolved after discovery, after disclosure and after pre-trial examination of witnesses we then have a trial.
The trial may be held before a judge or, if the claim is above a certain amount, before a judge and a jury and the judge makes a finding of fact. I should point out, which I do not think has been pointed out in this chamber, that the onus in a civil trial is totally different. The onus there is not beyond a reasonable doubt, but it is in the balance of probabilities. After hearing all the evidence, the judge, or a jury properly instructed, would then make a finding of fact which would be the basis of the civil claim.
All that would be thrown out the door if we were to accept the logic and rationale of the motion. In this case the person would not have to go near the city of Montreal. I am not making this up. This is the gist of this motion. A person could buy the Globe and Mail and read on page 3 that Mr. Justice Gomery had found him or her or his or her company responsible to pay another entity, whether it be $100,000, $200,000 or $500,000, and that would be the first knowledge that the person would have of that claim. That is not the way our Canadian system has been developed and I certainly do not want to be part of any motion that would throw out our well-established judicial system.
Clause (k) reads as follows:
the Commissioner be directed to perform his duties without expressing any conclusion or recommendation regarding the civil or criminal liability of any person or organization and to ensure that the conduct of the inquiry does not jeopardize any ongoing criminal investigation or criminal proceedings
That is exactly what we have seen. In at least two instances Mr. Justice Gomery, after submissions I assume by counsel, heard the evidence in camera. After hearing the evidence, and not wanting to prejudice or compromise what I believe were criminal proceedings, he looked at the evidence and then released most of it.
However, if we buy into the motion before us, the criminal proceedings, as far as I can see, would be a waste of time. Mr. Justice Gomery would make that determination. The only duty left to the criminal judge in another venue would be to sentence the individual criminals.
The motion does not make any sense. It is contrary to the Charter of Rights and Freedoms and the Criminal Code. It is contrary to a lot of other Canadian statutes, rules and regulations.
Everyone wants to get to the bottom of this but this is just another step against Mr. Justice Gomery. It started when he was appointed. He was called a hack by the chair of the public accounts committee. That was the first thing the chair said. This has been going on day after day.
Canadians want the Gomery commission to finish its work and they want justice to be served, which is why I do not support the motion. I think it is ridiculous and I cannot and will not support it.
I again will quote the learned member for Central Nova when he looked at it in February. He said, “The terms of reference will allow people to go where they have to go”. People will draw their own conclusions.
I will not support the motion because I find it troubling. I do not think it will have the support of the House.