Information & Ethics Committee on May 13th, 2008

[An hon. member]

It could have been done in five minutes.

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

Oh sure, no debate--no debate.

Mr. Chairman, the reason I raised that issue—

[The Chair, Liberal, Paul Szabo]

Order.

Mr. Tilson, take a little breath here.

I understand it's a serious issue, and everybody understands that, and there is a difference of opinion. We do have to respect all honourable members. So let's listen to the member who has the floor.

Go ahead, Mr. Tilson.

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

Anyone who has been a counsel in a court of law knows that there are from time to time issues of conflict—on all kinds of matters. Counsel may have acted for someone connected with some corporation that the person on the other side is involved in, and it's deemed to be a conflict. That person has to recuse himself. If he or she doesn't recuse himself, the judge kicks you off and says you're not allowed to represent that person. It's as simple as that.

I have seen cases of possible conflicts in which the judge has had to recuse himself from the bench. I have seen matters in boards, quasi-judicial boards, where the same thing has occurred.

One could say that this isn't a quasi-judicial matter, that it isn't a judicial matter. One could say that, but we are making decisions on things in this committee. There was a move by the opposition to make some decisions about the former Prime Minister of this House. We are making decisions. Justice must be done. And to use an old expression, justice must appear to be done. Mr. Zed, I'm sure, has heard that expression many times. It's called “the appearance of fairness”.

Members of Parliament are not above the law. They can't come in this place and say absolutely anything and then go and say or do something outside the House of Commons and expect nothing to happen to them. They're not above the law. We're not above the law. We're people who have been elected to this place to represent constituents. We are not above the law, and we cannot act as if we are.

I'm disappointed in Mr. Martin. I respect him greatly, even though we come from different political stripes. I've sat on a number of committees with him, and I respect the way he handles himself and the issues he raises. Mr. Martin has been the great protector of accountability, insisting on the accountability of members of Parliament. He has said this in the House, in this committee, and in other places.

What's next? Maybe a member has a financial interest in something that would normally prevent him or her from voting. If you have a financial interest in something, you're supposed to declare it to the clerk and not participate. That's what the code says. Is that next? Are we going to say that's stopping a member from speaking in this place?

I'm going to read a portion of the decision of Mary Dawson, the Conflict of Interest and Ethics Commissioner, in what is known as the Thibault Inquiry. This isn't with respect to Mr. Thibault; it's with respect to her observation on this issue of the word “liability” and “potential liability”. It says:

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”. I am of the view that lawsuits claiming damages that have been instituted against an individual constitute a liability. That liability will be contingent until judgment awarding damages against that individual is rendered. Should a court render judgment against the individual, the liability would become an actual liability. Both are liabilities for the purposes of the Code.

I would submit, with due respect to Mr. Martin—and I hold him in great respect—that what he's doing with this proposed amendment is lowering the bar. He's lowering the bar for the members' code, as compared with the Senate, the provinces, and the other territories.

This code needs to be looked at as a whole, and not be picked on by individual clauses. I, for example, took exception to Commissioner Dawson's report as well. The whole reason I raised this issue in the early stages of the Mulroney-Schreiber hearings, Mr. Chairman--and you made a ruling and that was that--and the whole reason for my doing that was so the commissioner could make a decision.

You do not have the jurisdiction to tell a member of this committee to leave; I don't believe you do. You may be able to comment as an aside, but I don't think you have the jurisdiction to order a member of this committee to leave.

My whole intention of making that complaint to the Ethics Commissioner was that she would make a decision before this committee rendered its report. Well, it didn't happen. It happened a month or two after. And we sat for over two months. My whole purpose in doing that was scuttled.

Mr. Thibault simply proceeded and carried on as if there was nothing wrong. I had problems with that, considering that was my purpose, to put pressure on him to recuse himself. I also found it very strange, in the decision.... And it may be the code needs to be reviewed; it may be that we need to review the code and look at a number of issues, but not one by one. Maybe we need to consider this provision. Maybe we need to consider a whole number of provisions.

She found him guilty of three counts--no sanctions. Wasn't that strange? No sanctions. I appreciate this has nothing to do with the motion before us, other than to say that Mr. Martin's motion may be a point for discussion if this committee reviews the whole issue of the code.

Let's talk to the people in the Senate. Let's talk to the people in the other provinces. Why are we lowering the bar for the House of Commons compared to the provinces, the Senate, the territories? Why are we doing that? Only Mr. Martin can answer that.

Mr. Chairman, with due respect, I believe this is an attempt to make the member of Parliament above the law. And we're not invincible. We're not.

[An hon. member]

[Inaudible--Editor].

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

Mr. Chairman, you know, they're going to get excited, but that's their life, I suppose, it's to get excited.

I'm simply saying this motion should be defeated, Mr. Chairman, and I would maybe encourage Mr. Nadeau to vote against it.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Wallace, please.

[Mike Wallace, Conservative, Burlington, ON]

Thank you.

Can I start with a couple of questions to you and the clerk to clarify things for me?

The motion actually says “report to the House that the Standing Orders...be amended”. To me, this isn't a request or a recommendation; this is a direct requirement. Do we have that authority, as a committee, to direct the House to do that?

The report would say that the standing committee orders be amended. It doesn't say “recommended to be amended”; it says “be amended”. My question is whether we have the authority to do that--yes or no?

[The Chair, Liberal, Paul Szabo]

That's a very good question. We did raise it. In fact the notices of motions from members usually include some editorial preamble and then the actual motion.

If you look at Mr. Martin's motion, the actual amendment being proposed is to section 3(3). It starts at the words “in section 3(3)” and goes to the very end. That's the actual motion for the House. But in the preamble, it's that our committee report to the House that the conflict of interest code be amended. The recommendation specifically starts with the word “in”.

On your question about whether we can change the Standing Orders, in terms of having a vote here and reporting to the House, the answer is no. There could be a concurrence motion moved in the House. There could be a debate in the House and a vote in the House. But as you know, there are long-standing practices. Matters of amendments to the Standing Orders, in our normal practice, are through the Standing Committee on Procedure and House Affairs for appropriate review, or by special committee established by the House.

[Mike Wallace, Conservative, Burlington, ON]

I don't know where you're reading from, but what I have in front of me says:

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 s. 3(3) of Appendix 1

That's not our full name, but we know who we're talking about.

It says “be amended”; it doesn't recommend that it be amended. Am I wrong? Does he have the word “recommended” anywhere in this? I don't see it anywhere.

[The Chair, Liberal, Paul Szabo]

We cannot amend. It can only be a recommendation.

[Mike Wallace, Conservative, Burlington, ON]

That is my next question, Mr. Chair. Is a report a recommendation in itself? Does the report itself have the recommendation in it? If the report says “Mike Wallace is a great guy”, is that a recommendation? I'm just using an example here, if that's okay.

[The Chair, Liberal, Paul Szabo]

The motion you and I are reading from is the one that was circulated to the committee on May 9.

[Mike Wallace, Conservative, Burlington, ON]

Let's say this passes and there's a report that gives us direction. It's not a recommendation; it's a requirement. There's no concurrence on this report. Does that just become law then? Does it change, or what happens to it after that?

[The Chair, Liberal, Paul Szabo]

A report to the House that is not concurred in simply dies.

[Mike Wallace, Conservative, Burlington, ON]

It just simply dies. Thank you very much.

Now, on the issue, first of all I have to take some exception to Mr. Zed's language. I'm sure he didn't mean it on purpose, but the Ethics Commissioner did not interfere in this case. The Ethics Commissioner was asked to review the law as it stands now in the Standing Orders, based on the information she provided, based on an inquiry from another member of Parliament who happens to be with us here today. She did a professional job in reporting back on the law as it stands today. I do not call that interference, and I think that was a poor representation of the commissioner doing her job. I'm sure he didn't mean it that way, but that's the way it could have come across.

That being said, I am not going to support the motion as it comes forward. I've been listening to the conversation here. I think there are limits. Just because you're a member of Parliament doesn't mean you can be libellous of somebody. It doesn't give you that right. In my view, this has that opportunity. For a wild example—and this is obviously a wild example—what if somebody is libelling me as a cheat and a liar from across the way? Based on the law now that if I can prove and have proof, I guess, that it is not correct that I've stolen money from a bank or whatever it is, I have the right as a Canadian to take that person to court. If they happen to be a parliamentarian who says that about me, based on this change they can continue to say this as long as they want, as far as I can see. I'm not positive about that, but I don't see where there are some limitations.

There should be limitations on all Canadians, including parliamentarians, on what they can say about individuals or organizations. Just because you got elected should not exempt you from all pecuniary interest you have on this. This could do that. The ruling from the Ethics Commissioner isn't whether he had the right or not to say that to the individual, but it was a pecuniary interest they had because they would have to pay out and it affected their pocketbook based on the lawsuit. It was the lawsuit that drew the pecuniary interest, the financial implication to the individual.

I'm concerned that if we give a carte blanche to anybody to say anything they want in any forum, as long as they're a member of Parliament, it's a very dangerous precedent for us to set. I'm not in favour of this change. I think we have lots.... I was surprised, as a new member of Parliament, how much immunity we have to say whatever we want in committee and in the House of Commons. That immunity should not continue on outside, whether you are talking to your friends at CBC or CTV or Global. There have to be some limits to it.

The fact of the matter in the particular case that's in front of us is that Mr. Thibault spoke outside the realm where he has protection as a member of Parliament, which we all share, and that's what got him into trouble--not what he was saying in the House, not what he was saying in committee, but what he was saying to the television cameras and print reporters. That's how they were able to bring that action against him.

I think we have a tremendous amount of protection as members of Parliament to speak on behalf of our constituents, both in the House and at committee. But there still needs to be a line drawn for what we can say in public, to the press, at public meetings, or wherever it might be. I think the law as it stands now protects not only the member of Parliament but also those who might be damaged by those comments. So I will not be supporting the motion that's in front of us.

[The Chair, Liberal, Paul Szabo]

I understand Mr. Martin and Mr. Holland both have very brief comments. Did you want to be the last speaker, Mr. Martin?

[Pat Martin, NDP, Winnipeg Centre, MB]

No, I just want to raise one big point of clarification. If I could do it now, it would be useful.

Mike, what you're failing to understand is that nothing in my motion would say you can't be sued for saying something libellous. You would continue to be vulnerable to a lawsuit if you were silly enough to go out and say something libellous. It just means you can't be silenced for being sued. So you could continue then. Hopefully you wouldn't be dumb enough to go out and say the same thing again and invite being sued again, but you could ask questions about the same issue or make comments about the same subject matter and continue to do your job.

It's an important clarification, because I would not have put forward a motion that gave us some blanket permission to go and say wild things about anybody we wanted, inside or outside Parliament. That's not what this motion does.

[The Chair, Liberal, Paul Szabo]

All right.

Mr. Holland had a very brief comment to make, I think.

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

I think that has to be underscored, because there's a real attempt here to pervert what's at issue. We have the courts that determine libel and slander. That is their domain. The concern is that for $1,000 you can silence anybody. And that's all it will take for years, because if you launch a frivolous and vexatious lawsuit--it will cost you $1,000--you can shut an MP up on any specific issue.

[Mike Wallace, Conservative, Burlington, ON]

That's outside of the House.

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

Well, of course.

You can imagine, as a member of Parliament, trying to conduct your job. If what you're trying to say is that our job is strictly limited to these chambers and that's the only place we conduct business, that we should no longer have conversations with media or anyone outside of this place for fear of a chill that would then stop us, by the way, from even asking questions in the House or in committee, that is absurd. And I think we have to think about this.

No one is saying you would be blocked from saying things that are slanderous. You wouldn't. The courts would deal with that. This is dealing with the fact that you'd be able to speak at all, and that's the concern.

[The Chair, Liberal, Paul Szabo]

We're getting into a little bit of repetition.

Mr. Hiebert, please.

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

There's a lot of misinformation flowing here.

I've heard Mr. Martin say that MPs can't be silenced. I've heard Mr. Holland say that for $1,000 somebody can be silenced. That's nonsense. That's absolutely ludicrous. That's not what Mr. Martin's motion does. All Mr. Martin's motion does is prevent a member of Parliament from asking questions in the House or in committee about a specific party. That's all it does.

MPs can speak their minds on any other subject, and they can speak their minds even on this particular party in public. The only thing he's trying to prevent is having a member of Parliament attack or question a party, whether it's a corporation or an individual, while they're at committee or in the House of Commons on that subject. There's no silencing here whatsoever.

To suggest that people are being silenced, to suggest that for $1,000 you can silence anybody, is absolutely ridiculous. That's not what this motion will do at all.

[The Chair, Liberal, Paul Szabo]

Thank you.

I want the committee to know that I also consulted with the Clerk of the House of Commons on the admissibility, and the clerk was in agreement that the matter was out of order with regard to the mandate of this committee.

The Standing Committee on Procedure and House Affairs still has opportunities. They have had some agreement to do some work. There may be a way for this to be dealt with.

We have a motion now, at least. I think it's clear that there is some disagreement. I would like to now put the question.

With the concurrence of members, Madame Lavallée would like the reference that pursuant to Standing Order 108(2), this be reported to the House. So we can assume that is part of the intent.

Mr. Wallace is quite right about the word “recommending”. According to the clerk, after looking at Mr. Martin's copy, it should read “report to the House recommending that the Standing Orders be amended”. We don't change them, and we know that. So I think we want to put in the words that we are recommending to the House that it be changed, with the amendment. The actual amendment for the House to consider starts with the words “in s. 3(3)” and goes right to the end.

With that clarification of Standing Order 108(2) recommending the amendment and that it be reported to the House, I'm going to put the full question right now. Is that all right?

(Motion as amended agreed to) [See Minutes of Proceedings]