House of Commons Hansard #106 of the 39th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was code.

Topics

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:30 p.m.

Independent

André Arthur Portneuf—Jacques-Cartier, QC

Mr. Speaker, I would like to congratulate the member for Saint-Bruno—Saint-Hubert on so passionately defending something that any reasonable person would find quite elementary.

Has anyone thought about the fact that, if the member for West Nova is being gagged in his attempts to address an issue, not only his own rights, but also the rights of his constituents are being infringed on.

The people of West Nova are certainly interested in the Mulroney-Schreiber affair. But these Canadians no longer have a voice in Parliament on this issue.

I have one final comment. Do we need to amend the code of ethics because it is defective, or should we not instead make Ms. Dawson listen to reason about a clear lack of judgment that ignores the separation of powers in a democracy?

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:30 p.m.

Bloc

Carole Lavallée Saint-Bruno—Saint-Hubert, QC

Mr. Speaker, I am very glad that the member for Portneuf—Jacques-Cartier is asking me questions about what is going on today. He is right. By taking away the member for West Nova's right to speak freely, we are depriving ourselves of his expertise.

I will have more to say about the Ethics Commissioner later. I have a hard time understanding how anyone in this House could oppose the Liberal Party's motion.

As the member for Dufferin—Caledon said earlier, perhaps it could be tightened up a bit and polished here and there. But I am not convinced and I am still waiting for him to give me an example.

Regardless, I think that we are depriving ourselves of a member's expertise, just as we are depriving the voters of West Nova of their member, from whose expertise in this matter everyone should be benefiting.

With respect to the Ethics Commissioner herself, I sincerely believe that she did her job as a legal expert, a jurist, a legalist. Some may disagree with her interpretation, and I respect those who do. Perhaps their knowledge of and experience with the law are greater than my own.

Nevertheless, we can ask her to redo her work. We can also have this debate here in the House and come to an agreement together. If there is one lawyer on this planet—in this case, the Ethics Commissioner—who interprets that section differently, that means there will be others. Let us not take that risk. Let us change it now.

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:35 p.m.

Conservative

David Tilson Dufferin—Caledon, ON

Mr. Speaker, I will provide the member with a couple of examples. One could be the situation where a member and his or her spouse is involved in a family law matter. There could be a matter that involves the House under the Divorce Act.

Another example could be where the home of a member of Parliament, as a private citizen, is involved in a matter that could be an environmental issue and an issue of the environment could be debated in the House or in a committee.

The reason I raise these issues is that I believe the motion being debated in the House is defective and that there are other areas that need to be considered. We are rushing this through. It has never been done before. A matter such as this normally goes to a committee and it is more appropriate that the committee reviews these things.

Perhaps the commissioner who made the decision could come and talk about these things. Perhaps the counsel, the Canadian Bar Association and other people who have been involved in these issues in the past could come and provide their advice to members of Parliament.

Why would this matter be dealt with in this place and not in the Standing Committee on Procedure and House Affairs?

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:35 p.m.

Bloc

Carole Lavallée Saint-Bruno—Saint-Hubert, QC

Mr. Speaker, today I gave this speech and I am responding to questions and comments in good faith. The Bloc Québécois and I would like to give his right to speak back to the member for West Nova, just as we would do for any other member who could be prosecuted in a personal matter or in a matter connected to his or her work in the House of Commons.

Perhaps the bill is not perfect, perhaps it could be amended and fine-tuned and perhaps we could debate it further. It is possible that the member for Dufferin—Caledon is right, and we should make these changes.

I would not want members to vote against this bill for partisan reasons, because they want to silence a member in front of a witness called to appear before the Standing Committee on Access to Information, Privacy and Ethics. I would not want the member to be sent to sit on a committee that, quite frankly, does not currently exist because the governing party has used stalling tactics to block this committee's work, just as it has done with other committees. I do not want this matter to be postponed indefinitely because of partisan politics.

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:35 p.m.

Bloc

Mario Laframboise Argenteuil—Papineau—Mirabel, QC

Mr. Speaker, I congratulate my colleague for her excellent work on the committee.

I was a member of the Standing Committee on Access to Information, Privacy and Ethics when the code was adopted. The member for Dufferin—Caledon probably discovered the flaw. However, we have never before had a situation where a member of a committee calls a witness, is sued by that witness and then does not have the right to rise in the House or in the committee and to discuss the matter. That is utterly ridiculous.

I listened to the member for Portneuf—Jacques-Cartier earlier. I know that he was used to being sued when he was a radio host. However, that never stopped him from going back on the radio the next day. Today, however, we are faced with a lawsuit by a witness and we are prevented from speaking in committee and in this place, the House of Commons. That is utterly ridiculous.

We must vote for this motion in order to restore power to the members, the power that citizens conferred on them when they were elected.

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:35 p.m.

Bloc

Carole Lavallée Saint-Bruno—Saint-Hubert, QC

Mr. Speaker, I wish to thank my colleague from Argenteuil—Papineau—Mirabel for his comments, which were quite complete.

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:40 p.m.

Mégantic—L'Érable
Québec

Conservative

Christian Paradis Secretary of State (Agriculture)

Mr. Speaker, I am pleased to speak to this debate today in the House. I am responding to the motion by the member for Scarborough—Rouge River, which reads as follows:

That this House reaffirm all of its well-established privileges and immunities, especially with regard to freedom of speech;

that, in order to clarify and assure those privileges, Section 3(3) of the Conflict of Interest Code for Members of the House of Commons, which is Appendix I to the Standing Orders of the House of Commons, is amended by deleting the word “or” at the end of paragraph (b) and by adding the following after paragraph (b):

“(b.1) consists of being a party to a legal action relating to actions of the Member as a Member of Parliament; or”;

that, pursuant to section 28(13) of the Conflict of Interest Code, the House refer the Thibault Inquiry Report back to the Conflict of Interest and Ethics Commissioner for reconsideration in the light of the amendment to the Code; and

that the House affirm its confidence in the Conflict of Interest and Ethics Commissioner.

The motion has to do with the rights and immunities of members. I will quote from Marleau and Montpetit, on page 71:

The rights, privileges and immunities of individual Members of the House are finite, that is to say, they can be enumerated but not extended except by statute or, in some cases, by constitutional amendment, and can be examined by the courts. Moreover, privilege does not exist “at large” but applies only in context, which usually means within the confines of the parliamentary precinct and a “proceeding in Parliament”... Members must avoid creating unnecessary conflicts with private rights and thereby having issues of parliamentary privilege brought before the courts.

Marleau and Montpetit goes on to say:

By far, the most important right accorded to Members of the House is the exercise of freedom of speech in parliamentary proceedings.

However, Marleau and Montpetit states, on page 75:

The privilege of freedom of speech is not limitless and grey areas remain. ... The parliamentary privilege of freedom of speech applies to a member’s speech in the House and other proceedings of the House itself, but may not apply to reports of proceedings or debates published by newspapers or others outside Parliament ... Thus, comments made by a member at a function as an elected representative—but outside the forum of Parliament—would not be covered by this special privilege.

The second edition of Maingot's Parliamentary Privilege in Canada states, on page 42, that parliamentary privilege protects the member “when he speaks in Parliament, but when he speaks outside, or publishes outside what he says inside Parliament, Parliament offers no protection; only the common law does, if it is offered at all.”

Speakers have reminded members of their duty to be careful in using their privilege to speak freely. We know all too well that members are not always as careful as they should be.

Outside the House, as Marleau and Montpetit points out on page 76, “Members also act at their peril when they transmit otherwise libellous material for purposes unconnected with a parliamentary proceeding.”

Marleau and Montpetit adds that the publication of libellous material has been considered by most courts to be beyond the privileges of Parliament when it was not part of the parliamentary process to begin with.

Maingot states on page 42 that a member could not come to Parliament for protection if he was sued for comments made outside Parliament. Maingot goes on, citing a series of British suits from 1794 that support the principle whereby parliamentary privilege does not apply to comments made outside Parliament.

In the Abingdon case, in 1794, involving a speech published in several newspapers by Lord Abingdon, the court ruled that the legislative provisions on libellous material applied to Lord Abingdon because he made the comments in question outside Parliament.

In the Creevey case in 1813, the court ruled that a member is protected when he speaks in the House but not “when unauthorized by the House.”

Maingot concluded that members could not complain in the House if they were convicted for libellous material outside the House. Maingot cites the report of the committee on defamation, presented to the British Parliament in 1975 by the Lord High Chancellor and Lord Advocate, whereby, “no parliamentary privilege attaches to the repetition outside Parliament of statements previously made in the course of Parliament proceedings.”

As Maingot points out, the Canadian system is similar to the British system when it comes to the application of parliamentary privilege within Parliament and subjecting members to the laws of Canada regarding statements made outside of Parliament.

The opposition motion we are debating here today raises some fundamental questions for members, questions that have to do with their parliamentary privilege to speak in this House and the limits of that privilege outside this House.

Members enjoy freedom of speech in the House in order to be able to fulfill their duties as elected officials. At the same time, members must be accountable for the statements they make outside the House, just as all Canadians are.

The principle has two components. On one hand, members must be able speak freely in Parliament and, on the other hand, they must also obey the laws governing freedom of speech for all Canadians. In this way, the parliamentary institution is protected, so that debate may be free and unfettered, while any statements made outside Parliament are subject to the laws of the Canadian legal system.

However, parliamentary privilege is not absolute, despite the fact that it is critically important for members and their ability to carry out their parliamentary duties.

In some cases, the House has decided to limit privileges in order to achieve other objectives, particularly by creating the Conflict of Interest Code. For instance, under the code, members cannot take part in a debate or a vote if it could further their private interests.

Section 8 of the code is clear:

When performing parliamentary duties and functions, a member shall not act in any way to further his or her private interests or those of a member of the member’s family, or to improperly further another person’s or entity's private interests.

Section 13 is more precise:

A member shall not participate in debate on or vote on a question in which he or she has a private interest.

These principles had been enshrined in the Parliament of Canada Act before they were written into the code.

In my opinion, in order to guarantee a comprehensive set of ethics rules governing members, it is essential that the House put some limits on these privileges, particularly that of freedom of speech. A fair balance must be established between high ethical standards and the privileges of individual members.

The Conflict of Interest and Ethics Commissioner recognized that ethical standards and members' privileges need to be reconciled. She says in her report:

I must balance this consideration, however, against the recognition that it is one of the main objectives of the Code to ensure that Members perform their public duties in a way that fosters the confidence of the public in the way these duties are performed. The purposes and principles of the Code are set out in sections 2 and 3 of the Code. I quote, Office of the Conflict of Interest and Ethics Commissioner 21 for example, the introductory words of subsection 2 (1) and paragraph (b) of that subsection:

“2.(1) Given that service in Parliament is a public trust, the House of Commons recognizes and declares that Members are expected

(b) to fulfil their public duties with honesty and uphold the highest standards so as to avoid real or apparent conflicts of interests, and maintain and enhance public confidence and trust in the integrity of each Member and in the House of Commons;”

In other words, she had to choose between members' rights and the need to establish rigorous ethical standards. The commissioner decided that observing the principles laid out in the code was more important.

Like the commissioner, the government believes that ethics override member privileges. Canadians elected us so that we would guarantee strict ethical standards, and that is what we will defend.

I should add that the commissioner's conclusions mirror the practices of other legislative bodies. Again in her report, she mentions the following:

Recognizing that the House of Commons shares its traditions and its privileges with other legislative bodies in Canada, and that the language used in many of the ethical codes and statutes established by those bodies is similar to that used in the Code, I consulted my counterparts at the Senate and in the provinces and territories to determine how they interpret the term “liabilities”. Most have responded and have confirmed that they interpret “liabilities” to include contingent liabilities. Many added that they interpret pending lawsuits as falling within the ambit of the term “liabilities”.

Consequently, the limits proposed in the report are in line with the limits imposed on legislators in other jurisdictions. I would add that, in all reality, the limits on privileges set out in the commissioner's report would be relatively minor.

This is what the commissioner stated in her report:

The fact that Mr. Thibault should not have participated in the proceedings before the Standing Committee does not mean that any Member can be prevented from taking part in proceedings before the House of Commons or a committee by the institution of a lawsuit against that Member. To trigger that result there would have to be some connection between the lawsuit and the question before the House of Commons or committee such that the private interest of the Member was engaged.

The lawsuit instituted against Mr. Thibault resulted from his statements to the media outside Parliament. Furthermore, the questions before the Standing Committee were substantially overlapping with the very statements that were the essence of the lawsuit. A similar conjunction of circumstances is unlikely to occur frequently. Only where questions debated and voted on by the House or a committee relate to the private interest of a Member is he or she not permitted to participate.

Therefore, I am of the opinion that the opposition is exaggerating the impact of the commissioner's findings on parliamentary privilege. Nothing is more important than being able to count on an effective code. Otherwise, what good is it?

The motion moved by the opposition today is also prejudicial to the process established by the House to deal with conflicts of interest.

When the House adopted the code, it also chose to give the Conflict of Interest and Ethics Commissioner the authority to interpret and apply the code.

The Conflict of Interest and Ethics Commissioner is an independent officer of Parliament. She must be independent to effectively carry out her responsibilities.

However, I believe that we are establishing a dangerous precedent by asking the House to change the code when the commissioner rules against a member. Our entire code of ethics would become meaningless if such a practice were adopted. In fact, it would become easy for a majority government to amend the rules if it did not agree with the commissioner.

The House decided to appoint an independent ethics commissioner for good reason. Therefore, we must respect her decisions.

The motion moved today by the opposition, which we are debating outside the usual process for parliamentary study, leads me to ask the following question: is the member for Scarborough—Rouge River proposing that members should not be subject to existing laws when they make comments outside Parliament? Is he suggesting that members should not be held accountable for comments they make outside Parliament?

The government believes that Canadian tradition with respect to parliamentary immunity should apply to the same degree it always has. Members should be able to speak freely in this House, but they should also have to take responsibility before the courts for comments made outside Parliament. Changing that would create a double standard for members and the people they represent with respect to things said outside Parliament.

The government also believes that we must respect normal parliamentary procedure when the time comes to consider changes to the Standing Orders. To do otherwise would offend both the privileges we enjoy as members of Parliament and the Canadians we serve.

During the last election campaign, the government committed to restoring accountability to Parliament and putting an end to the culture of entitlement.

This opposition motion seeks to do exactly the opposite. This motion implies that when members do not like the rules of the House, they can simply make a motion to change them, without a thorough review. It implies that members believe that they, unlike all other Canadians, are not accountable for what they say outside the House.

Today's motion is a front. The opposition claims that it respects parliamentary privilege, yet it is seeking to undermine parliamentary procedure and responsibility, which are crucial to our parliamentary democracy.

The member for Scarborough—Rouge River has written a book on the power of the Houses of Parliament. In his preface, he emphasized that the people must respect their Parliament.

With today's motion, the opposition could end up undermining the people's respect for their Parliament because the motion disregards prescribed parliamentary procedure, the advice of experts, and the thorough study of the repercussions this change to the rules could have on parliamentary privilege.

That is why the government cannot support this motion. I invite all other members to vote against it as well.

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:50 p.m.

Liberal

Derek Lee Scarborough—Rouge River, ON

Mr. Speaker, this is a rare opportunity for a member to actually respond when that member has been quoted, in this case, I think, quite unfairly, by the hon. member in his remarks.

First, he said that this proposed amendment should have more study and more consultation. I should say that there was quite a bit of consultation. In the drafting of this motion, I had a lot of help from a lot of experienced people.

Having said that, I think the motion had proper consultation and is properly drafted. I would actually accept that such a matter would be referred to the procedure and House affairs committee in the ordinary course. That is normally what we do around here but the problem is that the procedure and House affairs committee is currently not meeting. It is essentially dysfunctional and has not met for a couple of months. The members cannot hold a meeting because they do not have a chair, or they do not have a person who would be the chair or they do not have a chair who could be supported. Essentially, it is in gridlock. That is why this motion purports to deal with this.

I would put the issue back to him. In his remarks, the member stated very clearly that my motion and my position in here is that members of Parliament should not be accountable for remarks they make outside the House.

That is totally false, totally wrong. My motion deals only with the remarks and the free speech of members inside the House and at committee. Things that happen outside are still to be governed, and will always be governed, by the rules of the land. In fact, the lawsuits we have referred to in this place all carry on.

The Prime Minister has commenced a lawsuit against the Liberal Party. The Prime Minister probably has, should he not succeed in this, a contingent liability, just as the member for West Nova has. The only thing is that no member of the House, at this point, has been dumb enough to write a letter to the Ethics Commissioner claiming that. Also, no member has been dumb enough to write a letter to the Ethics Commissioner saying that the Prime Minister has an asset in suing and that he should cease, desist, recuse and file a notice.

I ask the member to please try to correct the record. My motion deals only with remarks of members inside the House and does not affect what happens outside the House.

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:55 p.m.

Conservative

Christian Paradis Mégantic—L'Érable, QC

Mr. Speaker, I listened carefully to the comments of the member for Scarborough—Rouge River. I am not in a position to say what his intentions are, since they are his own. I can, however, tell you that in the motion, it is clear that the question of privilege he is raising here goes beyond this House.

We must understand that it refers to the report that was presented in the case concerning the member for West Nova. The motion states:

—that...the House refer the Thibault Inquiry Report—this is a quote, which is why I am naming my colleague—back to the Conflict of Interest and Ethics Commissioner for reconsideration in the light of the amendment to the Code

We can see—

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:55 p.m.

Conservative

The Acting Speaker Andrew Scheer

Order. I heard the hon. member name the hon. member for West Nova.

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:55 p.m.

Conservative

Christian Paradis Mégantic—L'Érable, QC

Mr. Speaker, I was quoting the motion, and his name is written in the motion. I made sure to say that I was reading the text of the motion, otherwise I would not have named the member for West Nova.

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:55 p.m.

Conservative

The Acting Speaker Andrew Scheer

It is not serious, but even if the name is written in the motion, members must not name him.

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:55 p.m.

Conservative

Christian Paradis Mégantic—L'Érable, QC

All right, Mr. Speaker. I will say “in the inquiry concerning the member for West Nova”.

Essentially, there is a rule in effect that the opposition does not like. Now, people are saying that everything will be sent back to the commissioner after having changed the rules of the game. The commissioner has explained the notion of “contingent liability”. She consulted with people from the Senate, and everyone agrees.

The motion, as it is written now, is clear: parliamentary privilege would be extended beyond this House.

If my colleague says that is not the intent, it is not up to me to correct myself in the House. Perhaps he should review his motion and rewrite it to mean what he has just explained.

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

3:55 p.m.

Conservative

David Tilson Dufferin—Caledon, ON

Mr. Speaker, when I first arrived in this place, one of the first things I received was a book on procedure from the member for Scarborough—Rouge River. I have never thanked him for it and will thank him now. I know that he has put a lot of thought into procedure in this place, but with due respect to him, I think it is quite clear from the debate that is going on today that this motion is defective.

A number of things need to be looked at. We need to have a lot of discussion on the whole topic.

Much time has been spent on the issue of contingent liability and whether we should or should not have it and on the issue of whether this applies to the private actions of members of Parliament. Clearly the resolution does not apply to that.

Finally, there is the very issue that is before us today, the issue involving the Schreiber and Mulroney matter. Is that a matter of a private action of a private citizen against a member in his capacity as a member or is it a matter of a private citizen versus another private citizen? The resolution does not clarify that.

My question for my colleague is this: should more discussion take place, not necessarily in the House of Commons?

Opposition Motion — Conflict of Interest Code
Business of Supply
Government Orders

4 p.m.

Conservative

Christian Paradis Mégantic—L'Érable, QC

Mr. Speaker, I thank my colleague for his question.

Obviously, we are talking about a fundamental issue pertaining to the rules of procedure of this House. I agree with him that this motion is related to the Mulroney-Schreiber affair. We know that a private lawsuit has been launched against the member for West Nova.

So yes, this issue does warrant much more thorough study, and expert opinions should be sought. We run the risk of setting a precedent based on whatever is making news. We are talking here about the internal workings of the House of Commons, which are important in and of themselves. I agree with him that further study is certainly warranted.

If he is implying that we should consult more, I agree completely. We need to look at this issue in detail. It is a fundamental issue that we cannot gloss over, because it will have an impact for a very long time. We need to keep the principle in mind. Why should legislators change the rules every time the commissioner makes a decision the members do not agree with, in the hope of getting decisions they like? It is a frightening thought, and we do need to look at this issue. We need to proceed properly and thoroughly.