Information & Ethics Committee on May 13th, 2008

[The Chair, Liberal, Paul Szabo]

Good afternoon, colleagues.

Our order of the day is the reform of the Privacy Act, and we have two witnesses.

The members have been made aware of a motion, and some discussions have been held. I believe it is the wish of the committee that we deal with the motion first.

Mr. Hiebert.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

There is agreement.

[The Chair, Liberal, Paul Szabo]

I understand Mr. Martin would like to move his motion. Mr. Martin, please read the motion.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair.

I will read the motion first. Then I would like to explain the rationale of it. Is that understood?

[The Chair, Liberal, Paul Szabo]

Let's read the motion.

[Pat Martin, NDP, Winnipeg Centre, MB]

I submitted this on May 8, so I believe it is in order in respect of timeliness.

I move that the Standing House Committee on Access to Information, Privacy and Ethics report to the House that the Standing Orders of the House of Commons be amended so that in section 3(3) of Appendix 1, Conflict of Interest Code for Members of the House of Commons, the word “or” is dropped after the word “public” in subsection (b), and in its place the following words be added:

(c) if the private interest consists of being named as a defendant in a lawsuit regarding matters then before Parliament or a Committee of Parliament; or

and to re-letter the remainder of the subsection accordingly.

[The Chair, Liberal, Paul Szabo]

At this point, I want to make a ruling on the motion of Mr. Martin. The committee will know that on March 3 I rose in the House on a point of order related to the mandate of committees. The Speaker made a substantive ruling on March 14—that famous ruling regarding anarchy in committees. The substance of my point of order had to do with committees adopting work beyond the scope of their committee mandate as outlined in the Standing Orders.

I want to point out to members that under the Standing Orders of the House of Commons, 108(3)(a), the mandate of the Standing Committee on Procedure and House Affairs is laid out. Standing Order 108(3)(a)(iii) authorizes

the review of and report on the Standing Orders, procedure and practice in the House and its committees;

Standing Order 108(3)(a)(viii) authorizes

the review of and report on all matters relating to the Conflict of Interest Code for Members of the House of Commons.

The Conflict of Interest Code for Members of the House of Commons is included in the appendix to the Standing Orders.

I have in the past stated that the chair must reflect the Standing Orders and that the chair should defend and uphold the Standing Orders as they are. In the Speaker's ruling, he repeated that the committee is the master of its own work order and agenda, but that there are possible consequences, and that among these is the ruling out of order, by the Speaker, of any report of the committee on a matter not within its mandate.

Accordingly, to be consistent with my past rulings and representations, I must rule Mr. Martin's motion out of order.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

I'd like to challenge the ruling of the chair for the following reasons.

[The Chair, Liberal, Paul Szabo]

I want to remind all members that a challenge to the chair is in order, but that it is not debatable. A vote must be taken immediately. At this point, then, I am going to take a vote on sustaining the decision of the chair.

I call the question to sustain the ruling of the chair.

(Ruling of the Chair overturned)

[The Chair, Liberal, Paul Szabo]

The chair has been overruled, and the motion is now in order in front of the committee.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chairman. I'm glad to have the opportunity to explain my motivation for putting this motion forward on May 8.

I believe that an unintended consequence of the Standing Orders conflict of interest codes has been recognized and reported to us by the Conflict of Interest and Ethics Commissioner. It is that an unacceptable libel chill has been created among members of Parliament, and if we don't nip this in the bud there will be so many lawsuits flying around here you'll think you're in a snowstorm, believe me. Good people are going to be silenced by strategic lawsuits against public participation, or SLAPP suits. The oldest corporate trick in the book is to silence dissidents or protestors with a SLAPP suit that threatens them with a lawsuit and prevents them from doing their jobs.

I raise this today with the utmost urgency and full knowledge that you would rule this out of order because it is properly before the procedure and House affairs committee. But that committee has been logjammed by a filibuster that has gone on for months and months by the Conservative Party. They've made the procedure and House affairs committee unable to do their job and protect the parliamentary privilege of members of Parliament by making the necessary changes to the standing order.

On this motion I've put forward today, I know the language is kind of legalese, but let me simply say all it does is make it abundantly clear that a member of Parliament is not in a conflict of interest just because they find themselves as a defendant in a libel suit on a matter pertaining to their work in Parliament or in committee.

There would still be exceptions, if a member of Parliament is embroiled in a lawsuit on a piece of real estate or shares he owns in a company, when they would and should be barred from taking part or asking questions. But if it's a matter of the ordinary business of a member of Parliament in the context of their work, you should not be able to be silenced by some vexatious and frivolous SLAPP suit that's clearly designed to shut you up.

I was shocked to learn--and members here would be shocked to learn--that you don't even have to be served papers before you're silenced. All the other party has to do is file the statement of claim, and from that moment on you are barred from making any comment on that subject matter in the House of Commons or at a committee. This is what happened to our colleague Mr. Thibault. No had even served him with notice that a civil suit had been launched against him when, according to Madam Dawson, he was in that situation where he was unable to speak.

So let me simply say we cannot let this continue. I believe it is clear that the motion urges the committee to recommend reporting to Parliament--I hope in the strongest possible terms--that the conflict of interest code as it pertains to members of Parliament has to be amended immediately. I hope we can make a report to that effect to the House of Commons as early as tomorrow. I hope you, Mr. Chairman, can stand up in the House of Commons and explain what an impossible situation we find ourselves in here. Believe me, if it can happen to Mr. Thibault, it can happen to you or you.

For instance, if I were to criticize one of the big drug companies and accuse them of gouging because they were extending their drug patent laws, and one of them slapped a frivolous lawsuit at me saying that I had been speaking untruths about their company, that would prohibit me from asking any questions about that industry sector in the House of Commons until the suit was settled. That could be 18 months down the road, or at the end of this Parliament. That would put me in the terrible situation of possibly losing my home trying to defend myself in a frivolous lawsuit, because not all lawsuits are picked up and covered by the Board of Internal Economy.

We have to protect ourselves from this situation. If this motion I put forward today gets passed, I believe the Board of Internal Economy would be more likely to support members of Parliament with their legal costs, should such a scenario happen. I know one of my colleagues here today finds himself in that situation and may want to add some comments as well.

Colleagues, we can do this quickly. We have witnesses here waiting, and this shouldn't take more than a few minutes. You either agree or you disagree with this fundamental change to the Standing Orders and the conflict of interest codes for members of Parliament, to make it abundantly clear that we are not in a conflict of interest just because somebody slaps us with a lawsuit in a matter pertaining to our ordinary business as a member of Parliament.

Thank you.

[The Chair, Liberal, Paul Szabo]

I have Mr. Hiebert, Mr. Holland, Madame Lavallée, Mr. Zed, Mr. Tilson, and Mr. Wallace.

Mr. Hiebert, go ahead, please.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Mr. Chair, first of all, I think it's absolutely ridiculous that this motion has been allowed to stand, and that the challenge to the chair was upheld by the opposition parties, because this is not a partisan issue. This is a non-partisan issue. Any member of Parliament could have been subject to this situation. To suggest otherwise is simply absurd.

To pretend that this committee can now take over the responsibilities of the procedure and House affairs committee is absurd. It's absolutely ludicrous, as you stated in the House of Commons when you spoke to this issue not that long ago. There are natural limitations to what this committee can do. We can't rewrite history. We can't change the weather. We can't stop time, and we can't change the rules that the procedure and House affairs committee has authority over. It's simply absurd to suggest that we can now take this upon ourselves.

[Pat Martin, NDP, Winnipeg Centre, MB]

I'm recommending that it be done by Parliament.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

You might be upset, Mr. Martin, about what the procedure and House affairs committee is doing with their agenda, but we can't simply take over that responsibility, whether we want to or not.

Let's talk about the substance of this matter for just a moment. What are we talking about? We're talking about a change to the Standing Orders that would provide additional power to members of Parliament to beat up on individuals who are perhaps rightfully suing them for libel. We're not talking about some hypothetical situation. We're talking about situations in which somebody has said something very offensive and very egregious outside of parliamentary privilege. We're not talking about what happens in committee. We're not talking about what happens in the House of Commons. We're talking about some other statement that was made outside of parliamentary privilege that has offended somebody to the degree that they are willing to take it to court.

First of all, we know there is no real history of this happening. These kinds of suits are rare. They are the exception to the rule.

Second, there are counter-measures that a member of Parliament can use. They can counter-sue if they think it's frivolous. A judge might rule a case completely out of order and force the frivolous plaintiff to cover the costs of the defendant. There are all kinds of natural consequences that prevent these kinds of frivolous things from happening, which is why we don't have a history of this happening. This is very rare.

In addition to that, let's contemplate what consequence this ruling might have had on our very committee had the Ethics Commissioner ruled in advance of our completing our duties. What would that have meant? It would have meant that Mr. Thibault would have been prevented from asking questions on an individual who had him in a lawsuit.

Does that mean Mr. Thibault is not allowed to do his job as a member of Parliament? Of course not. There are any number of Liberals who would have taken his place, and in fact many did during our hearings of Mr. Mulroney. Substitute Liberals came in and asked the tough questions. There was no limitation on the type or thoroughness of our investigation at that time. To suggest otherwise is nonsense. Mr. Thibault does not speak as the sole person for the Liberal Party. Other members can do the same. As we see here, other members are taking the place of normal members as well. There's no impact on our committee's work.

In terms of his parliamentary work, he can go about participating in debates, voting, if he would choose to--which I won't go into--on any number of issues as a representative of his constituents. The only thing he's prevented from doing is raising a particular issue about a particular individual in this committee, and only for the duration of the lawsuit. It's hardly menacing, and it's hardly a constraint on his function as a member of Parliament.

Mr. Martin asked what would happen if a drug company wanted to sue him--would that not prevent him from speaking about these issues? Of course it wouldn't, because the code of conduct has a rule of general application that says that laws of general application are exempt. If it's a law of general application, it applies not just to Mr. Martin, but to all Canadians or to a large population, and he can continue to ask those questions. I would invite him to review the code of conduct more thoroughly. There's no constraint on him asking questions of a general nature about drug company pricing or anything like that. He would be prevented from asking questions of a specific drug company if they were related to the lawsuit he's engaged in.

So there's no limitation here on dealing with the substantive issues in question. What he's proposing is providing a bully pulpit for members of Parliament to attack their litigious plaintiffs, which I think is unjustified. I don't think Canadians want members of Parliament to be able to throw stones from behind the wall without facing the consequences like every other ordinary Canadian, and that's exactly what he is proposing.

I think it's ironic that the opposition is attempting to rewrite this code. I think we all recognize that the code's place is to prevent members of Parliament from using their public office to perpetuate or benefit their private interest. I think the ethics ruling is correct, that when somebody faces litigation, it's tantamount to a liability, and if an individual can have an influence on an outcome of a case, certainly that's an advantage they have that an ordinary Canadian doesn't.

So I think in terms of procedure it's out of order. It's ludicrous that we're considering it. In terms of substance, I think it's not appropriate, and I would ask this committee to simply put this issue aside and let us get back to our work.

[The Chair, Liberal, Paul Szabo]

Mr. Holland, please.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Thank you, Mr. Chair.

Mr. Chair, I had the occasion to speak with the Ethics Commissioner, and I was shocked, frankly, after having the conversation with her, to hear just how dangerous this ruling is and the extent to which this precedent is one that must be expunged immediately. I'll give you a few examples that I ran through with the Ethics Commissioner.

It was said by Mr. Hiebert a second ago that you can make general statements about an industry, but not specific ones about a company. Now, you can imagine, when we were dealing with Taser International—and I'm not saying anything for or against Taser International, but it certainly was a big issue before Parliament—if a member of Parliament had expressed concerns about Taser's technology or practices, they could simply launch a lawsuit that would cost them, by the way, just $1,000, and you wouldn't be able to say anything else.

I think all of us know, as members of Parliament, that in conducting our business it is imperative that we don't just speak in committee and in the House, but we also speak out of the House, to reporters or to our constituents, whatever the case may be. That's a continuum that occurs. If you're going to say something in the House, you're going to get asked about it outside the House. And what are we supposed to say? That our role as members of Parliament is now limited to saying things only in the House lest we be terrified by a lawsuit that's costing somebody only $1,000 to drop on us to totally silence us? I think all of us, as parliamentarians, need to take a pause here and to think about the serious ramifications of this.

Look, the government members were in opposition for a long period of time. They asked some tough questions, tough questions that I may have thought inappropriate or thought crossed the line or didn't like, of a minister or of a particular individual within government. But the idea that after a member is getting successful, maybe after a year of working on a file, putting in all of that time and effort, all you'd have to do to silence them, to shut them up, would be to spend $1,000 and initiate a lawsuit, send a letter--you don't even need to take them to court. After you file your statement of defence you can let the thing drag out as long as you want, for up to two years. So with minimal expense you can shut people down for two years, and just start going through the list. And why not?

I don't think we should look at this on the basis of Mr. Thibault, or even me, being in a similar circumstance. Ask the question about what the precedent is that's established here, and where it's going. And yes, absolutely, we as parliamentarians should at the first opportunity decry this, say that this is outrageous, it impedes our ability as parliamentarians to do our job and attacks our very democracy. Because if you say that parliamentarians are not able to ask legitimate questions, questions of importance of the day, simply because somebody has brought a frivolous or vexatious lawsuit, or maybe even a lawsuit that turns out to carry.... The courts determine that. But to shut us down....

I think we should all be jumping at the first opportunity to send something before Parliament to change this to ensure that doesn't occur, because it scares the heck out of me, and frankly, it should scare the heck out of us all.

[The Chair, Liberal, Paul Szabo]

Madame Lavallée, s'il vous plaît.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Thank you, Mr. Chair.

The position of the Conflict of Interest and Ethics Commissioner has really bowled me over. I was absolutely shocked to see how a situation that had never happened in the past resulting from... Mr. Tilson's complaint would ensure that the rich and powerful would now be able to silence any member dealing with any issue in order to keep the public in the dark.

This is really scary, all the more so since this Conservative Government has established a precedent by suing the Leader of the Opposition for what he said in the Cadman controversy. I wonder if these will be the new rules of the game. They will be the rules of the rich and powerful who have the means to hire squads of lawyers to sue anyone who might say or think something that would be against their interests. Because they have the money to hire lawyers, the rich will become powerful, if they are not already so.

During those testimonies, I was really astonished to see Mr. Mulroney's bunch of lawyers scrutinize everything we were saying or doing. Remember how many lawyers' letters we all received at the time. It was incredible. There were so many that at one time I told the researcher in the Leader's office that I would send him all those letters because I did not want to read them anymore. They were only aimed at distracting and intimidating us. I felt they wanted to intimidate us. When I learned that they wanted to sue Mr. Thibault, I thought that we would all be sued. I thought that would be part of their tactics.

You will understand that I cannot agree with the Conflict of Interest and Ethics Commissioner's interpretation. I cannot approve the new position that has been established. I believe that we must eradicate this interpretation immediately and move the debate to the House.

That is why I would like to amend Mr. Martin's motion. I would like to reinforce the fact that we will indeed report the matter to the House.

Therefore, I move that the motion be amended by adding the following at the beginning, before the word “That”

Pursuant to Standing Order 108(2)...

That is all, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

Thank you, Madam.

Colleagues, the amendment is to the effect that pursuant to Standing Order 108(2), the matter be reported to the House at the earliest possible time. It doesn't affect the intent of the motion, but it does reinforce or clarify the reporting request of the committee. We will deal with both of those separately, but I think the amendment is fairly straightforward.

We have Mr. Zed, Mr. Tilson, and Mr. Wallace. That will be it, I think.

Mr. Zed.

[Paul Zed, Liberal, Saint John, NB]

Thank you, Mr. Chair.

Mr. Chair, I'm not a regular member of this committee, but I have served on this committee in the past. In fact, in the 1990s I chaired the ethics committee. That was part of a basket of issues, including the whole area of the ethics counsellor, when he was a counsellor and not a commissioner, and the Lobbyists Registration Act.

I find the recent ruling of the Ethics Commissioner very troubling. I could not have imagined in the 1990s, when we, as parliamentarians of all stripes, came together to develop a series of ethical standards, that we would have ended up in the situation we are in today with the commissioner's ruling.

Mr. Hiebert, I just want to say to you that there is indeed a strong chill. As a lawyer who practises in the area of corporate and commercial law, as many of the people around this table can tell you, lawyers who bring what I consider almost Republican legal tactics into the British parliamentary tradition are really altering the fundamentals of how we should be conducting ourselves as Canadian parliamentarians. I find it very litigious and I find it disruptive of why we are, in fact, sent to Parliament.

We are encouraged to express points of view. We are leaders of our communities. And we are not like every other Canadian. Respectfully, Mr. Hiebert, I would disagree with you. We have been elected by the people of constituencies throughout Canada. And to play the wordsmith game about this word and that word, I think, is very dangerous.

I must say that I'm ashamed, as a parliamentarian, to find that other committees aren't working. I'm a full member of the Standing Committee on Transport, Infrastructure and Communities, and I can tell you that our committee works very well. We have very serious issues before us, and we deal with those issues on a regular basis.

I'm ashamed, as a parliamentarian, to hear that the Standing Committee on Procedure and House Affairs, which I also chaired in the 1990s, when we shared very difficult, not dissimilar issues, is being disrupted by tactics that are not intended to advance the public's rights.

The libel chill and the chill generally that's occurring with this kind of ruling by the Ethics Commissioner is very deeply troubling to me. My four kids talked about it this weekend when I was home. We had a conversation about how crazy this kind of situation is. We end up having parliamentarians not even able to speak their minds about serious issues, whether it's tasers, drugs, or a variety of other subjects, and the ultimate consequences of where they could lead.

I'm not suggesting that we have more rights than other Canadians, but we obviously speak to our rights. We speak more frequently and in a more public way about a variety of issues. Surely we're guided by the same principles of libel. We're guided by the same principles of due process and guided by the same principles of Canadian common law. But, and I emphasize the “but”, by interfering with our rights as members of Parliament, I think the Ethics Commissioner has gone way too far.

Mr. Chairman, I don't think we can pretend that our opinions are not relevant. Our opinions, as they relate to standards and ethics and having them interfered with by the Ethics Commissioner in this fashion, I think require urgent public discussion, reporting, and change, whatever that change is, in the House of Commons.

I agree with you, Mr. Hiebert, that it's unfortunate the procedure and House affairs committee is not seized with this. Maybe it's more appropriate. But I agree and commend Mr. Martin for bringing this matter urgently to this committee, and I would support getting it reported back, as I expect would all members of the House, who should be equally ashamed of having this troubling matter before us today.

Thank you.

[The Chair, Liberal, Paul Szabo]

Mr. Tilson, please.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Yes, Mr. Chairman.

There are some members in this place who are lawyers or who have been lawyers in the past: Mr. Zed, I believe, Monsieur Nadeau—I'm not sure—Mr. Hiebert, myself.... He's not? Okay, he's a teacher. I don't know if that's a compliment or not; it's probably not a compliment.

[Some hon. members]

Oh, oh!

[David Tilson, Conservative, Dufferin—Caledon, ON]

Well, you know, I'm going to have to suck someone up, because I can tell you people have made up your minds, and we're going to talk a little bit about this issue.

I'm disappointed that you brought it at this time, because I came here to talk about privacy issues. We invited some witnesses to come and speak at this meeting, and you decided to bring this at this particular time. Well, sir, I really think we invited our guests and you've pre-empted them. You ought to be ashamed of yourself.