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

Questions on the Order Paper
Routine Proceedings

10:10 a.m.

Liberal

The Speaker Peter Milliken

Is that agreed?

Questions on the Order Paper
Routine Proceedings

10:10 a.m.

Some hon. members

Agreed.

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

10:10 a.m.

Liberal

Derek Lee Scarborough—Rouge River, ON

moved:

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.

Mr. Speaker, this is an issue that has been kicking around here for two or three months. The wording of the motion might make it seem like it is a trivial or technical thing, and it might even be seen as a little unconventional to make such a matter the subject of what we call an opposition day or a supply motion, but I and many others in the House believe this issue to be a fundamentally very important one because it has to do with my ability and the ability of all colleagues in the House to get up right now, to get up at any point in time, to do our jobs as members of Parliament.

It goes right to the core of what this place does as a place of debate, what members of Parliament do as they carry on their work of debating on public issues in the House, at committee, and actually in the constituency, out in the street.

Since parliaments began, the world has changed over that huge period of time. We now have another world of media: communications, television and text messaging all going on. The world is, of course, much bigger than what is here in our House.

There was a time not that long ago when just above us, just above where you are, Mr. Speaker, the media used to sit. We called them the press. Their benches are still there and their job was to report to Canadians on what we did in this House.

A lot has changed. The press actually do not sit there very much anymore because they can watch what we do on television. They make use of the communication facilities of the House. Indeed, by special arrangement and by special constitutional arrangements, what they do is quite special to us in the House.

We even let the media control a piece of our parliamentary precinct. The Canadian media control the press theatre downstairs. It is under their control and not the control of the political parties or the Speaker or the House, and there is a written agreement to that effect.

The point I am making here is that in the world of communications and what we do as members of Parliament, it is more than just what we say in the House. What we use to just do in the House has now moved out into the scrum area and out into the electronic universe.

Just for the record, I feel, and most members will feel, that we have to read some statement of the principle we rely on here, and I am going to read one. It is from the 1977 first report of the special committee on the rights and immunities of members of Parliament:

Freedom of Speech

By far, the most important right accorded to Members of the House is the exercise of freedom of speech in parliamentary proceedings. It has been described as...a fundamental right without which they [Members of Parliament] would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest and the aspirations of their constituents.

That refers to what is said in the House and by extension in committees. It does not necessarily, and technically perhaps, govern what is said outside the House and committees. What we are dealing with today is what is said or not said in the House and at committees.

The motion that is before us here today does not deal with communications outside the House and committees. The rules governing those communications are still out there. What we are talking about is the freedom of a member to speak freely and vote in the House of Commons.

The sequence of these events started about 20 or 25 years ago. Some lobbying went on, which has been generally spoken to and described in two separate files. One file is the airbus file and the other file is the Thyssen or Bear Head file, which are separate files but in some ways linked.

With a lot of lobbying going on 20 years or so ago, some money was moved around. The question that has come up now is whether the rules we had then were appropriate to guide public officers in either receiving, not receiving or managing those types of issues involving lobbyists.

The Standing Committee on Access to Information, Privacy and Ethics embarked on a study and did not do too bad a job. It reported to the House. It is not that all issues have been cleared up but a number of public issues were raised in that whole sequence.

In the context of that, one of the members of that committee said something outside the House, to which a witness at that committee study, a former prime minister, took objection and commenced a lawsuit. That was a slander action and it is still out there. It was not directly connected to what we do in the House at all, at least we did not think it was.

I have another set of facts that are on a collision course now. Those facts include the decision of the House to adopt rules of conduct and a Conflict of Interest Code, which was a good step forward. The code is in place and we now have an Ethics Commissioner who assists us in the interpretation and enforcement of that code. It has worked quite well so far but my recollection is that when the code was put in place it moved fairly quickly. It involved a complex set of issues.

Most members are quite happy and proud that we now have an Ethics Commissioner and a code. However, these two facts now collide when they are taken up by the Ethics Commissioner in dealing with a complaint about the member who made the alleged slanderous remarks. She, quite professionally, looked at the code and tried to figure out whether the member has some duty or obligation in the House as a result of what happened outside the House.

Inside the House, the commissioner points out that section 3 of our Conflict of Interest Code has a provision that says that members may not further their private interests inside the House but that outside the House they can do whatever they want. However, as members of Parliament, we are bound not to further our private interests in what we do in this place and at committee.

In defining a private interest, the Ethics Commissioner looked at subsection (3)(2)(b) of the Conflict of Interest Code which states that a private interest would include “the extinguishment, or reduction in the amount, of the person’s liabilities”. That is all well enough.

We have the member for West Nova, who is being sued outside the House. Does he have a private interest? The Ethics Commissioner decided that, on the face of it, it was not clear that a lawsuit outside the House was a liability so she decided that she would include in the definition of liability the term “contingent liability”.

The Ethics Commissioner included the words “contingent liability” in our set of definitions because those words are included in Black's Law Dictionary, not because we put it in our code, and that therefore the contingent liability she would focus on is potential liability, not contingent liability, in my view, that might be there in this lawsuit.

Therefore, because the member is subject to a lawsuit that might produce a judgment, which, in the view of the commissioner, could constitute a contingent liability, it would then fall within the rule that says that we should not further a private interest. She believes the member could further his private interest, this contingent liability, this potential liability in the lawsuit, by something he might do or not do in voting or speaking in the House. That takes us right to the core of the principle here today. It was her view that this set of circumstances must, by our rule, abridge the member's right to free speech in the House and at committee, not only the right to speak but the right to vote.

We have this interpretation that comes in through the back door. It certainly was an unintended result. I cannot recall anyone around here envisaging this back door route in interpretation to secure the logic that brought us to the point that would abridge, curtail, prevent the member from voting or speaking on this particular set of issues in the House of Commons or at committee. As I have said previously, that is intolerable.

The member for West Nova is, under our Constitution, completely free and unfettered to say whatever he wants outside the House in the media, in the scrum, in his riding, in his house, in his town council and everywhere else out there. However, inside the House, according to our Ethics Commissioner, he cannot speak freely.

This House is the one place in the whole country that is supposed to have, by constitutional root going back hundreds of years, the total, unabridged right of free speech for members but somehow we have ended up in a situation where the member has had that right taken away. If he follows the guidance and decision of the Ethics Commissioner, he has broken the rule and, therefore, may not speak and may not vote on those issues.

I submit that was a totally unintended result caused by what I call this back door, circuitous interpretation of the rules. I am not saying that the Ethics Commissioner made a huge mistake. She made a fairly mechanical interpretation of the rules. It was a little bit like a law school exercise. a syllogism made two plus two equals four, and she reached the conclusion, but did she miss the big one. She missed the fundamental constitutional right of free speech for everyone who serves in this place.

By coincidence, when we adopted the Parliament of Canada Act quite a few years ago, like 140 years ago, section 5 says that the privileges we have in this place are so fundamental that outside in the real world no one has to plead them to the court because all the courts in the country are, by statute, obligated to take notice in courts judicial notice of these privileges. They are very fundamental but most of the time we take them for granted which maybe we should not.

However, in this case the Ethics Commissioner somehow missed it. Maybe we should have listed our privileges a little more clearly in the Code of Conduct but we took it for granted and did not bother, so she did not interpret it. She read in Black's Law Dictionary the definition of “contingent liability” but she did not read our fundamental rights and privileges in this place. She never got there. In a sense I am saying that she should have but I must forgive her because when we wrote the rules we wrote them in a certain way that took a lot of things for granted. In fact, we may have written the rules a little too quickly but we wrote them and it was for a good purpose.

Where do we go from here? We need to assist the Ethics Commissioner to clarify the ruling and to fix our rules. It has created what people call a kind of libel chill.

I asked a week or two ago what would happen if someone decided to sue every member in the New Democratic Party or the Bloc Québécois caucuses for something allegedly mean and nasty they were doing or had said. Would that prevent every member of the caucus having a contingent liability under these rules and this interpretation from speaking or voting on something in the House? According to the Ethics Commissioner, it would if we take the literal interpretation of her ruling. There is no other conclusion one can draw.

We need to clarify the rule. As I do that, I need to address the context in the House. We are working in a minority Parliament and most of us will agree that the debate and the exchanges in the House have been rather testy, excessively partisan and maybe less than the standard we would want to use back in our ridings. In fact, most of us get along pretty well with other MPs back in our ridings. In the House, however, it is not working too well. I am urging members, in dealing with this motion, to try to put the partisanship aside.

One has to accept that it would be natural for a political party with a political stance, in dealing with something coming from another party in debate, to want to use whatever rule or device it could to repress, knock off, set aside or defend against whatever is being alleged and said. That happens in debate.

It is possible that some members may say that the ethics rule is good because it prevents those guys from saying those things. Many may say that we should let the Ethics Commissioner's ruling be the device to prevent that person or those people from saying those things because we do not like what they say. I urge members on both sides to take a step back and look at the broader picture.

I know we have all heard the adage “I don't like what that person is saying but I will defend unto death the person's right to say it”. That adage has been around so long I do not even know who originally said it. I am not offering death at this point. I am offering nothing more than our fundamental right in this place, which is that we have the right to say it in this place, though not necessarily out there.

The lawsuits can go fast and furious out there but in this place and in committees there is an absolute unfettered right to say it. I am urging members on both sides of the House to consider this objectively and to affirm the fundamental right we have to debate, speak and uphold the constitutional traditions and conventions that we have always had and which have now been, arguably, impaired by this ruling. We need to fix the rules and get the member for West Nova back on his feet on all issues.

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

10:30 a.m.

Regina—Lumsden—Lake Centre
Saskatchewan

Conservative

Tom Lukiwski Parliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform

Mr. Speaker, I listened intently to my hon. colleague's presentation. I agree with one thing he said, or perhaps even more than one thing, but the one thing I agree with right off the top is that this debate is extremely interesting and it should be held in a very reasonable and non-partisan manner, because I think it is extremely important.

What the motion intends to do is fundamentally change some of the rules that have guided all of us for a number of years. We are guided by a great many rules, if I can call them that, or conventions, as the member says, from procedures and practices to Standing Orders to codes of conduct, and I think before we make any changes we ought to very carefully examine the consequences of those changes.

The member speaks of what he considers to be the overriding principle of members of Parliament, that is, the right to speak freely in this place. While I appreciate that, I would suggest that there is one even more overriding or overarching principle that we are all guided by and that is to put the public interest ahead of our own interest.

I would give the member a suggestion and ask him whether or not he agrees with it. If there is a legitimate lawsuit brought forward by a member of the public against a sitting member of Parliament and that member of Parliament is allowed to speak to that issue at a committee level, in effect that member of Parliament would have an advantage over the member of the general public who brought the lawsuit.

In effect, the member of Parliament would be conducting an examination for discovery or, in other words, putting his own private interest in that case over that of the general public. That is why we have a commissioner to interpret cases on a case by case basis. If there were a lawsuit that had no effect as to the subject material in the committee, then the member would not be encumbered.

I would simply ask the member this. Does he not agree that the overarching principle of all members in this House should be to put the public interest over the private interests of members of Parliament?

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

10:35 a.m.

Liberal

Derek Lee Scarborough—Rouge River, ON

Mr. Speaker, I would agree with that so much that I would say the parliamentary interest trumps everything else. It trumps the lawsuit out on civvy street. If we are going to buy the principle, we buy the whole thing.

If there is a lawsuit between two people, that is fine. They can have their own pissing match. They can, but what governs is the public interest, and the public interest is reflected by the views of every member of this House in here and at committee. That trumps everything that goes on out on civvy street.

Second, the member asked whether the member of Parliament would have an advantage. I say no, because we all know that the courts out there operate based on only the evidence adduced in the trial at the hearing. Let me repeat: only the evidence adduced in the trial at the hearing.

However, everything that happens in this House and at committee is privileged and bound by parliamentary privilege. It is not usable. It cannot be used or transported outside this place. If somebody attempted to use evidence adduced in a committee or in the House it would be a breach of parliamentary privilege. It would be a contempt.

So the answer to that on both fronts is yes, the public interest trumps everything, and that is why what happens here is more important than what happens in the trial. Second, the evidence from here is not usable out there, so there is no advantage.

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

10:35 a.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, let me say for my colleague from Scarborough--Rouge River that it seems to me the dilemma we are faced with when we are making a decision on this motion before us today is a balancing act, whereby potentially we expose abuses if we have a member of Parliament who is irresponsible and is prepared to use his or her freedom of speech, that extra layer of freedom of speech that we all have as members of Parliament, in an irresponsible or even abusive way.

I would like to ask my friend if he has analyzed the balance he is trying to strike here. What would he say to those who would say that we are exposing individual members of society to potential abuse by an individual member of Parliament who is irresponsible?

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

10:35 a.m.

Liberal

Derek Lee Scarborough—Rouge River, ON

Mr. Speaker, it is a good question, but I suggest to the hon. member that the boundaries have already been drawn and that we already have decided in this place. I read for members that earlier quote. One of my colleagues gave me a quote from a 1974 British lawsuit, which will come up late in the event, but we already have decided that in this place we have the absolute, unfettered right to say whatever we need to say in the public interest.

That decision has already been made. The motion today corrects one section. It provides an exception from one section of our conflict of interest rule. It is really quite minor, except that it takes us right to the core of our fundamental right of free speech. Whether or not we like to hear what some members say in this House does not matter so much as their right to say it.

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

10:40 a.m.

Liberal

Brian Murphy Moncton—Riverview—Dieppe, NB

Mr. Speaker, I enjoyed the member's speech. I want to give him the opportunity to flesh out this privilege. It seems very clear from his speech that he is saying there is no more important job as members of Parliament than to represent the people. We are here for the people. The people will judge us at election time.

Is that not what we are doing when we speak in Parliament or at committee? We are speaking for the people. Given that there is history here, that kings have lost their heads, that in Singapore such protections do not prevail in parliament and therefore people who oppose the government can be shut down by lawsuits, is not the most important thing that we do as parliamentarians to act for the people? Is it not that we are the people and therefore what the hon. member from Regina said is very consonant, which is that our role is for the people and that is primordial?

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

10:40 a.m.

Liberal

Derek Lee Scarborough—Rouge River, ON

Mr. Speaker, I would agree with this subject to the rules that we adopt here in the House for our own conduct. Subject to those rules, I would say that the only decision maker about what we say is our constituents. They are the only arbiter. The judgment on the goodness or badness of what we do in this place and at committee is with our constituents. That is how we have constructed it. I cannot do a better job than that.

I had one image in my mind as the member spoke. It is the image from 19 years ago yesterday of Tiananmen Square and the one guy who stood in front of the tank. I gather he did not make it through that sequence and is no longer with us, but he stood in front of the tank and stopped the tanks on that roadway. That is what we have to make sure we have the right to do here in speech, and sometimes it is a bit like standing in front of a tank, but we must have that ability to stand here representing our electors and say what has to be said even if it irritates all other 307 members of the House.

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

10:40 a.m.

Conservative

Scott Reid Lanark—Frontenac—Lennox and Addington, ON

Mr. Speaker, in listening to this it seems to me that between the two arguments the hon. member is making there is a distinction that he has not really clarified. The first point is in regard to his concerns about freedom of speech. He has waxed eloquent on those concerns. The second is the question of casting a vote. There is a distinction there.

We all of course remember a few years ago Chuck Cadman casting a deciding vote on whether or not a government would fall. As well, given the fact that we seem to be in an era of minority governments, we have committee meetings that are decided by one vote. That is one issue. Having the right to vote can very well make a distinction between a successful or an unsuccessful vote in certain cases.

Actually engaging in the freedom of speech, which of course also means the freedom to question, to summon witnesses and so on, seems to me to have a much more aggressive intent or potential for misuse. Yet at the same time it is less likely to be a right which, if constricted, is going to actually affect the business of Parliament.

We have to remember in this context that the privileges of an individual member are actually the member's part of the privileges of the whole House. They are not actually privileges of that member qua individual, but as a person performing a portion of the role of this House, thus the importance of ensuring the entire body can vote without having any of its members taken away. Could the member comment on that?

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

10:40 a.m.

Liberal

Derek Lee Scarborough—Rouge River, ON

Mr. Speaker, the member has offered an excellent perspective on the envelope. I have not thought it through a whole lot, and I am not necessarily the smartest guy in the world either, but at this point in the debate I would not want to disconnect the voting right from the right to speech. All of us feel the right to vote is pretty fundamental. Our only ammunition as MPs is our tongue and our vote. That is it.

I would not want to disconnect the right to free speech from the right to vote, although there may be cases where there is an evident personal interest involved in a vote. I think our rules adequately cover that. I do not propose to change that.

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

10:45 a.m.

Conservative

David Tilson Dufferin—Caledon, ON

Mr. Speaker, I am pleased to rise today in respect to the debate on the motion that has been raised by the member for Scarborough—Rouge River.

I believe that the motion would reaffirm our privileges and immunities. It would amend the conflict of interest code for members of the House of Commons. It would refer the report of the Conflict of Interest and Ethics Commissioner concerning the member forWest Novaback to the commissioner for reconsideration. The motion would affirm the confidence of the House in the Conflict of Interest and Ethics Commissioner.

My concern with respect to the motion is the amendment of the conflict of interest code. I really do object to the process which the member has chosen to take place in the House with respect to his attempt to change the conflict of interest code. I am concerned that members will not have had adequate time to consider whether the proposed change is necessary and whether it has been properly drafted.

The conflict of interest code has been the subject of careful review by parliamentarians dating back over 35 years when the Trudeau government tabled a green paper on this subject in 1973. Since then, parliamentarians have studied numerous initiatives to develop a code of conduct.

For example, in 1978 the Trudeau government introduced the independence of Parliament act. In 1988 the Mulroney government introduced the members of the Senate and House of Commons conflict of interest act. In 1993 the Mulroney government introduced the conflict of interest and public office-holders act.

In 1995 a special joint committee chaired by the current Speaker and by Senator Oliver was established to develop a code of conduct. The special joint committee recommended a code of conduct for parliamentarians in its 1997 report.

The Chrétien government tabled a draft code for parliamentarians in 2002 based on the joint committee's 1997 report. This draft code was referred to the procedure committee through a careful study by parliamentarians.

The procedure committee examined the code and held extensive consultations with members of Parliament. The committee tabled a report with a code which reflected the comments of the members of the committee as well as input from members of the House.

In its report, the procedure and House affairs committee stated:

The result of our consultations and intensive study is, we believe, a document in which all Members of the House can have confidence. We are convinced that it is a very credible step forward in the self-regulation of this House.

This report was adopted in 2004 and forms the basis for today's conflict of interest code.

The reason that I have gone through this brief history lesson is to remind members that the drafting of the code involved careful consideration and consultation by members over a great number of years. Its provisions should not be taken lightly. The code needs to be effective to ensure Canadians have the highest level of confidence in Parliament and its members. At the same time, care must be taken to ensure that the code does not unduly restrict the privileges of members of the House.

Given the importance of the code, it is not surprising that extensive deliberations took place by parliamentarians before the code was finalized. It therefore follows that changes to the code should not be done in haste without any proper consideration or consultations.

Even minor changes can have unforeseen consequences. Given the implications the code may have for members of Parliament, any changes should be carefully considered before it is adopted by the House.

Instead, the member for Scarborough—Rouge River is proposing that a change be made to the code after only a few hours of debate in the House. In my view, it would be more appropriate for the procedure and House affairs committee to hear from experts on this issue, including the Ethics Commissioner herself.

One of the issues that I think should be explored by the procedure committee is whether the proposed change achieves the member's objectives. For example, the proposed amendment refers to “actions of the member as a member of Parliament”. This begs the question, what are the actions of a member as a member of Parliament?

I do not believe that the member for Scarborough—Rouge River intends to refer to proceedings in Parliament, as parliamentary privilege adequately protects members of Parliament in this regard. For example, a member cannot be subject to a lawsuit for his or her statements in the House or in committee. He said that. I must therefore conclude that the member for Scarborough—Rouge River is referring to actions by members of Parliament outside the House.

What actions outside the House constitute actions as a member of Parliament? How do we distinguish between the actions of a member of Parliament as a private citizen versus actions as a member of Parliament? What statements that members of Parliament make to the media constitute actions as a member of Parliament?

In this regard, it is not clear whether this amendment would actually achieve the objectives the member for Scarborough—Rouge River is seeking. In the case of the member for West Nova, the lawsuit that he faces is a result of statements that he made to the media outside the House. It is not clear to me that the member for West Nova was acting as a member of Parliament in making those statements to the media as any activity outside the House is not a parliamentary proceedings. There is a distinguishing factor.

In fact, very little of the functions of a member of Parliament outside the House or committee can be considered a parliamentary function. For example, in the second edition of Parliamentary Privilege in Canada, Joseph Maingot states at page 84:

A clear distinction should be drawn between those things a Member does in the exercise of his capacity as a Member, only one of which is to take part in a “proceeding in Parliament,” and those he does because he is a Member: the latter are much wider and are not necessarily protected.

He further states at page 102:

The uttering of slanderous words by a Member of Parliament to a journalist outside the floor of the House is not protected by absolute privilege.

It will be ultimately up to the Conflict of Interest and Ethics Commissioner to interpret the proposed change. We cannot predict how she would apply this provision. On the other hand, the procedure committee would have to have been able to ask the commissioner's view on this change and receive her advice of what changes, if any, should be made to the code.

Instead, members are being asked to make a change to the code today without the benefit of such consultation. I would also note that the member for Winnipeg Centre put forward at the ethics committee different wording to change the Conflict of Interest Code.

In his motion at the ethics committee he made reference to excluding, as a private interest under the code, being named as a defendant in a lawsuit regarding a matter then before Parliament or a committee of Parliament. That was, at least, a lot more precise than the motion before the House today.

The motion before us would exclude where a member is a party to a legal action. This could include a situation where a member has commenced the lawsuit as a plaintiff, and plaintiffs of course are parties to a lawsuit. Therefore, this would allow a member to commence an action in the courts and then be allowed to participate in parliamentary proceedings dealing with the subject of the suit and be allowed to participate in those proceedings and use them to advance the member's court case, and even intimidate the party the member was suing.

This shows the need for this matter to be studied much more closely by us as parliamentarians and not dealt with as a result of a hasty, short, one day debate. This also demonstrates there are alternative ways to accept to change the code, if that is necessary, and it would be appropriate to have the procedure committee examine these issues more carefully.

Members may respond by arguing that the procedure committee is not currently meeting and that therefore, today's opposition motion is the only way for the House to respond to the ethics committee's report. However, the procedure and House affairs committee is not meeting because of the tyranny of the majority of that committee which overturned a sound reading by the chair and ultimately removed the chair from his position. This is an example of the situation that the Speaker referred to on March 14 when he stated, “committees have found themselves in situations that verge on anarchy”.

I agree that we need to find a solution to the impasse at the procedure and House affairs committee and I believe that the solution is simple. When the chairs of the committee make a sound procedural ruling that is supported by the clerk of the committee, the committee has to uphold and respect that ruling. All members of Parliament should follow the rules and respect the Standing Orders.

If members think that the ethics committee's report is of urgent importance, then they should agree to work constructively in committee and respect the rules of Parliament. In that way the procedure committee can review the Ethics Commissioner's report and recommend any action it deems necessary.

This is not the first time the opposition has tried to circumvent our normal procedures to implement a change that has not been properly thought out to the Conflict of Interest Code. For example, opposition members on the access to information, privacy and ethics committee tried to ignore the Standing Orders by tabling a report recommending a change to the code. The Speaker rightly ruled the report was out of order as it was clearly beyond the mandate of that committee.

The member for Scarborough—Rouge River has also raised a question of privilege on this issue but has chosen to move forward with his motion without waiting for a ruling by the Speaker. The Speaker noted on May 15, “In my view, there are other mechanisms available to debate and resolve the matter at hand”. In this respect, I would remind all members that section 28(10) of the code allows a member to move a motion to concur in the report. I note that the member for Winnipeg Centre already has a motion on the order paper pursuant to this section. Presumably then, the House could amend the motion to express its opinion on the Ethics Commissioner's report.

In addition, section 28(13) of the code makes provision for the House to refer the ethics committee's report back to the commissioner for further consideration with instructions. Since the Conflict of Interest Act already contains provisions that allow the House to respond to the commissioner's report, I believe it is misguided to change the Conflict of Interest Code at this time.

I would also note that it is not an urgent need to make quick changes to the code. In her report, the commissioner states:

Concerns have been raised about the use of lawsuits, more particularly libel suits, to prevent a Member from performing his or her duties in the House of Commons. I cannot predict whether this may indeed become a problem and I hope it does not.

By stating she cannot predict whether this may become a problem in the future, the commissioner is implying that the use of lawsuits is currently not a problem or a significant barrier to the ability of members to perform their duties in the House.

I would also note that members of Parliament have legal remedies to respond to lawsuits. If a member feels that a lawsuit is frivolous or vexatious, they can ask the court to dismiss the case. The court has a wide range of remedies it can apply, including, most important, dismissal of the case, plus possible damage costs awarded, which would result even in disciplinary action against any lawyer who is acting for a party commencing in such a frivolous or vexatious lawsuit against a member, especially if it was motivated to interfere with a member of Parliament's duties and privileges.

However, the court is the best place to make that determination. If the court finds that a lawsuit is valid, members should not be able to use their parliamentary privilege to advance their legal position. There is therefore no compelling need to make immediate changes to the code. Instead, it would be worthwhile to have the procedure committee examine the issue to determine whether there is a problem that needs to be fixed, and if so, how to remedy the situation.

In fact, when the code was first adopted, the procedure committee recognized the need to periodically review the code's effectiveness. The committee report stated:

We realize that any document such as the proposed Code is, in effect, a work in progress. We fully expect that time and experience will indicate where changes need to be made, and we have provided for both ongoing oversight by this Committee, and a comprehensive review of its provisions and operations every five years.

Section 33 of the code, therefore, requires the procedure and House affairs committee to undertake a comprehensive review of its provisions and operations within five years after its coming into force. The code came into force at the beginning of the 38th Parliament on October 4, 2004, and therefore, a comprehensive review of the code is mandated to take place by October 2009. This would be an appropriate opportunity for the procedure committee to examine the implications of the commissioner's recent report.

I will sum up by saying that the Conflict of Interest Code was developed in a non-partisan fashion with the consensus of all parties. Given the importance of the code, parliamentarians undertook years of careful scrutiny and consultations before finalizing these measures. When tabling a draft code of conduct, former deputy prime minister John Manley stated in the House on October 23, 2002:

A code for members must be non-partisan and must serve all members in all parties. The Milliken-Oliver code, on which this document is based, was prepared by an all party committee.

He also went on to state:

The Prime Minister has stated that the government is open to considering changes which maintain an effective code and serve the interests of members and their constituents. That is why we have tabled these documents in a draft form to give the committee flexibility on these matters.

I am pleased to work the committee and all parliamentarians on these important matters.

The member for Scarborough—Rouge River was a member of the government that recognized the need to engage parliamentarians and build consensus in the development of the Conflict of Interest Code, so I wonder why today the opposition has changed its approach on these issues.

Given that other avenues exist to respond to the Ethics Commissioner's report, and given that there is no clear need to take any immediate action, I do not understand why the opposition members would want to use one of their few opposition days on this subject. I also do not understand why the opposition would not agree to let the procedure committee work within the Standing Orders of the House of Commons so that the Ethics Commissioner's report can be properly considered.

Instead of making changes that have not been properly thought out, I would ask members to oppose this motion and allow the procedure committee to do its work in accordance with the Standing Orders.

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

11 a.m.

Liberal

Michael Ignatieff Etobicoke—Lakeshore, ON

Mr. Speaker, I listened with attention to the speech of a distinguished parliamentarian who mounted a masterful defence of delay and inaction, but the matter before the House, in my view, is a very direct infringement of the privileges of a sitting member, an attempt to deny him the possibility in this House of speaking on a matter of urgent public interest, namely, the Mulroney-Schreiber affair.

This is not a partisan matter. If our situations were reversed, I am sure that members on the opposite side would be outraged at the inability of a member to stand up and speak clearly on the Mulroney-Schreiber affair. If this stands, libel chill will silence privileges in this House.

The injunction to delay and send it to a committee that is not sitting does not provide a remedy. I want to know in fact whether he agrees with a notable statement made by a member of his own party, the Conservative MP for Edmonton—St. Albert, who said:

Lawsuits for statements made by an MP outside the House are one thing. Denying MPs the right to speak in the House on matters of public interest is outrageous.

[The decision by the commissioner], if allowed to stand, is a dangerous infringement on the protection of freedom of speech in Parliament which is enshrined in the Bill of Rights (1689) (U.K.) and forms part of the Constitution of Canada.

It seems to me that member of Parliament from the Conservative Party has got it exactly right. I wonder why the member chooses a policy of delay and denial of the severity of the issue and why his party is not prepared to support an urgent matter to correct what is clearly an infringement of the rights of all parliamentarians.

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

11:05 a.m.

Conservative

David Tilson Dufferin—Caledon, ON

Mr. Speaker, where I differ, with respect to the hon. member, is I do not believe members have the unfettered right, and the member for Scarborough—Rouge River made quite a big deal of it in his excellent speech, to say things in this place. My goodness, the Speaker can rule us out of order and if we do not withdraw our comments or apologize, the Speaker has the right to turf us out of here. Therefore, we do not have the unfettered right.

Second, if members of Parliament have an interest in a corporation or some sort of investment with which the House is dealing, the code says that they have to go to the Clerk and tell him or her that they may have an interest. The member for West Nova did not even do that. He went on his willy-nilly way.

There are situations where a member of Parliament does not have the unfettered right. In other words, the principle of George Orwell does not stand in our country. He said that all people were created equal. However, some people are more equal than others. Does that mean members of Parliament have more rights than everybody else in the country? The answer is, no, they do not.

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

11:05 a.m.

NDP

Pat Martin Winnipeg Centre, MB

Mr. Speaker, I honestly believe the member for Dufferin—Caledon is too good a lawyer and too good an MP to honestly believe the speech he was sent here to read just 10 minutes ago. He is either using some kind of wilful blindness or he is simply buying into his party's excessive use of the ability to silence another MP, and he is putting his own judgment to the side.

Would he not admit that the Conservatives have found an effective to silence any nuisance MP who might be harping on an issue that is embarrassing to their government? Tragically, our colleague from West Nova is not here to speak on his own behalf because he is barred from speaking on this subject by the Ethics Commissioner under the current court ruling. Does he not agree that what the Conservative Party is engaged in, in an increasingly frequent way, is the time honoured tradition of the corporate SLAPP suit, where one slaps a lawsuit on nuisance critics to shut them up, even if one knows full well that lawsuit is frivolous?

Does he not think we are on the slippery slope, where that will become a frequent thing in the House, since there will be lawsuits flying in both directions, willy-nilly? There will be so much paper flying around we will think we were in a snowstorm, just to silence MPs from being a nuisance, or in other words, doing their job?