Thank you, Mr. Chair.
I should start with a bit of a disclaimer. I believe I was asked here today because I have represented the House of Commons as your counsel in a number of cases that raise parliamentary privilege issues. However, I don't currently have a solicitor-client relationship with the subcommittee. So today I won't be providing you legal advice as your counsel, but rather I'm appearing as an individual, and to the extent that I have expertise that may be helpful to you in fulfilling this important mandate I'm very happy to provide that to you.
One of the parliamentary privilege cases I worked on that's relevant to your mandate today was the the Supreme Court of Canada's decision in the Vaid appeal. Some of you may remember that case. Mr. Vaid had been the chauffeur to the Speaker and he had filed a complaint under the Canadian human rights code, alleging both discrimination and harassment on the basis of race against the Speaker and against the House.
The Supreme Court held that parliamentary privilege attaches to the employment relationship between the House and some of its employees, but not all of its employees, and Mr. Vaid, as a chauffeur, didn't have a role that was so central to the constitutional functions of Parliament to fall within the privilege. Therefore, he could make a complaint under the Canadian Human Rights Act by filing a grievance under a statute that applies specifically to parliamentary employees.
At the same time, the Supreme Court did say that the Canadian Human Rights Act does not apply directly to internal affairs of the House that properly fall within privilege. For example, the Supreme Court said:
It would be intolerable...if a member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary courts that the Speaker’s choice violated the member’s guarantee of free speech under the [Canadian Charter of Rights and Freedoms]. These are truly matters “internal to the House” to be resolved by its own procedures. Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper.
However, the Supreme Court went on to say:
In matters of privilege, it would lie within the exclusive competence of the legislative assembly itself to consider compliance with human rights and civil liberties.
That really is your mandate today. You're clearly dealing with a relationship that falls within privilege, the relationship between two members of Parliament. Yet, in exercising your privileges, it's completely within the competence of the House of Commons to determine that you want to voluntarily comply with certain human rights obligations that can't be applied by an external body, but where to the extent that it's not inconsistent with your constitutional functions, you could choose to comply with human rights obligations to the greatest extent that is consistent with proper functioning of the House, including ensuring that investigations are done by someone who understands the unique features of the legislative functions.
I reviewed the very helpful and informative evidence given by Mr. Denis, the deputy law clerk, and also by Mr. Parent, as the chief human resources officer of the House, at your last meeting. In the discussions at that meeting, there were two categories of parliamentary privilege that seemed to create some concerns about the extent to which human rights obligations could be applied to the House.
The first was freedom of speech and the second was the exclusive jurisdiction of the House to discipline its members. I'm happy to discuss these further in response to questions, but I would just say, briefly, in relation to freedom of speech, one option that the subcommittee may want to consider is to define harassment in the context of speech in the House or in committees as being conduct that demeans, belittles, or causes personal humiliation or embarrassment to a member and that is based on a ground of discrimination that is prohibited by the Canadian Human Rights Act.
Those would be race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, physical or mental disability, or conviction for an offence for which a pardon has been granted.
The Standing Orders already prohibit offensive words against a member and harassment of a member would also be a breach of privilege in itself, yet if you wanted to, you could make a statement about the significance of human rights and the fact that any of these grounds that are prohibited under the Canadian Human Rights Act, such as a racial slur or a sexist comment, is not something that adds to a debate in the House of Commons or that is in any way necessary to the proper functioning of the House. That might be one way of ensuring that freedom of speech is preserved, yet offensive comments that are certainly not necessary to debate are clearly not prohibited by the Standing Orders.
On the exclusive jurisdiction of the House to discipline members, I would simply mention that the House does have the ability to circumscribe its own privileges, so to the extent that you were to determine that, you would have an external expert body make decisions about proper discipline to ensure that confidentiality is preserved. You could choose to do that even though it is limiting a privilege that the House currently has. In exercising its own power, the House can make its own delegation or circumscribe its own privileges, to the extent that you find that's an appropriate step.
Those are my statements. Thank you.