I was talking about the sub judice convention. Any examination of this matter would have violated the sub judice convention. It's this parliamentary convention that dictates that members may not comment on matters before the courts so as to avoid prejudicing or biasing these court proceedings through their debates and discussions. In this vein, Mr. Chairman, I draw your attention to chapter 13 of Marleau and Montpetit, under the heading “The Sub Judice Convention”, on page 534 of the English version. It states the following:
During debate, restrictions are placed on the freedom of Members of Parliament to make reference to matters awaiting judicial decisions in the interests of justice and fair play. Such matters are also barred from being the subject of motions or questions in the House. While precedents exist for the guidance of the Chair, no attempt has ever been made to codify the practice known as the “sub judice convention”.
On page 534 it goes on to state that:
...the sub judice convention is first and foremost a voluntary restraint on the part of the House to protect an accused person, or other party to a court action or judicial inquiry, from suffering any prejudicial effect from public discussion of the issue.
The argument presented by Marleau and Montpetit is based on both House of Commons Debates and on Beauchesne's Parliamentary Rules and Forms. I would like to quote from Beauchesne's sixth edition, page 153, citation 505, which states the following:
Members are expected to refrain from discussing matters that are before the courts or tribunals which are courts of record. The purpose of this sub judice convention is to protect the parties in a case awaiting or undergoing trial and persons who stand to be affected by the outcome of a judicial inquiry.
I will continue to quote from page 154, citation 511, which states the following:
The freedom of speech accorded to Members of Parliament is a fundamental right without which they would be hampered in the performance of their duties. The Speaker should interfere with that freedom of speech only in exceptional cases where it is clear that to do otherwise could be harmful to specific individuals.
Clearly there can be no greater prejudice than that of partisan interests in a matter of party financing. The uninformed speculation of members of the opposition parties in a highly publicized forum could, and in all likelihood would, greatly prejudice the judicial hearings or proceedings.
Due to the national nature of the media coverage arising from this committee, I am now suggesting to you that the opportunity for the parties of this legal action to engage in an unbiased trial is in serious peril should this committee commence any examination of the matter as proposed within the notice of meeting or the orders of the day.
In reference to any possible suggestion that the sub judice convention exists so as to protect and insulate the integrity of only criminal trials--I note there is a distinction between civil and criminal cases with this being a civil matter, not a criminal matter as they've stated in the orders of the day--I'd also like to read into the record a portion from Marleau and Montpetit found on page 535 of that book, which states the following:
No distinction has ever been made in Canada between criminal courts and civil courts for the purpose of applying the convention, and it has also had application to certain tribunals other than courts of law. The sub judice convention exists to guarantee everyone a fair trial and to prevent any undue influence prejudicing a judicial decision or a report of a tribunal of inquiry.
One is reminded, Mr. Chairman, of the cautionary component associated with the application of the sub judice convention. It is not in dispute that its overarching purpose is to ensure that participants in a legal suit are not influenced in any fashion by Parliament or its members.
Page 536 of Marleau and Montpetit states that:
the Chair has warned on various occasions of the need for caution in referring to matters pending judicial decisions whatever the nature of the court.
This citation is also reflected in chapter 11 of Marleau and Montpetit on page 428, which references Mr. Speaker Parent's ruling in April 6, 1995, in which he states:
The difficulty that I face as Speaker is that any attempt to determine when a comment might have a tendency to influence something can be at best speculative rather than preventative, that is, I cannot make such a determination until after the comments have been made. Hence, it has been the approach of most Chair occupants to discourage all comments on sub judice matters, rather than allow members to experiment within the limits of the convention and test Speakers' discretion.
I respectfully submit, Mr. Chairman, that there can be little question that the requested subject this committee has been called back to consider falls under the sub judice convention. I would further submit that any such study by this committee would in all likelihood have a direct influence upon and in part, perhaps, prejudice the legal proceedings before any judgment can be passed by a court of law.
I'd like to reference as well Speaker Fraser's ruling on December 7, 1987, page 11,542, where he makes it clear that even if a matter does not meet the technical requirements of Beauchesne's, it could still be declared sub judice--and I'm quoting Speaker Fraser here--“if, in the total context, the Chair felt the question was about to prejudice the rights of either of the litigants”.
Speaker Parent's ruling on November 7, 1989, is also of assistance, where he states:
There is no doubt that the House has a fundamental right to consider matters of public interest, but by our convention on matters before the courts the Chair has the duty to balance that legitimate right of the House with the rights and interests of the ordinary citizen undergoing the trial.
I can state with some confidence that within the confines of this committee room, the whole point of this meeting is to cause harm to one of the parties to this legal action, but more precisely, to the plaintiff in the action.
While the application of the sub judice convention does not rely upon the motives of the opposition members to be found to be applicable, it must be clear to those present today that the possibility of causing harm or prejudice to a specific litigant is intentional, and that this has been done for clearly partisan purposes. This fact only magnifies the reason why this matter ought to be deemed out of order.
I have several additional precedents, which I will not read to you, Mr. Chairman, but which I will simply draw to your attention. I will provide you with hard copies. For the benefit of members of this committee, I'll now read the appropriate citations so they can find them within Hansard if they wish to do so: December 7, 1987, at page 11,542; November 15, 2005, pages 9,664 and 9,665; November 7, 1989, pages 5,654 to 5,657; June 13, 2003, pages 7,280 and 7,281; March 8, 1990, pages 9,006 to 9,009; and November 5, 1990, page 15,120.
I'd ask you to exercise your authority as chair of this committee to hold that the notice of meeting is not in order. Mr. Chair, by applying the sub judice convention to this and any future meetings on this topic until such time as litigation has been resolved by the courts, we would be protecting the integrity of the legal proceedings between the Conservative Party of Canada and Elections Canada.
Moreover, I would also ask that you call out of order any comments or motions that specifically mention this topic until such time as the court case has been resolved.
And lest you think I am alone in feeling that this is the appropriate course of action, I would refer you, Mr. Chairman, to the comments made by the Chief Electoral Officer earlier today in response to a question on this subject. I'll read the question first, and then I'll read his response.
He was asked earlier today by Glen McGregor of the Ottawa Citizen, and I quote here:
Mr. Mayrand, on a different subject, could you explain your decision--the reason behind the decision to reject the Conservative candidates' claims for regional media buy expenses, and also the reasons behind your decision to refer this matter to the Commissioner of Elections?
To which Mr. Mayrand responded, and again I quote, “As you know, this matter is before the court and is also under investigation. Therefore, I will not provide any comments on this matter”.
I think that he is acting appropriately in informing the media that he will not be commenting on a matter before the courts. I think that it would be appropriate for us as well to be respectful of what the law requires of us, Mr. Chairman.
I want to thank you, Mr. Chairman, for your patience, and also all members of the committee for their patience.
