Procedure and House Affairs Committee on March 30th, 2010

[The Chair, Conservative, Joe Preston]

We'll call the meeting to order, please.

This morning we are in public, pursuant to the order of reference of Monday, March 15, for a question of privilege relating to the mailings sent to the ridings of Mount Royal and Sackville--Eastern Shore.

Committee, if I can just share with you, from the start we have Mr. Walsh here for about the first hour of our meeting today to answer questions about the matter we're about to head into. Our second hour is committee business.

Mr. Walsh, it's very good to have you here today. We're going to let you give an opening statement and then we'll ask you a bunch of questions. I hope we can get all our answers in that hour.

Mr. Walsh, it's up to you.

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chair.

I don't have a prepared statement to make, as I was not sure what approach the committee was looking for in asking me to be here, but let me offer this as a framework in which committees might want to approach the question before the committee. It's a breach of privilege relating to a ten percenter handed out in member Cotler's riding. He objects to certain statements made in that ten percenter. In his point of privilege, he indicated that they were offensive to him and his community, and impaired his ability to carry on his duties as a member of Parliament. That's the critical consideration here.

As you know, the Speaker, in his ruling, said that based on what was presented to the Speaker in the interventions made in the House, the mailing constituted

interference with [the member's] ability to perform his parliamentary functions in that its content is damaging to his reputation and his credibility

Of course, we have to remember that the Speaker's ruling is prima facie; that is to say, as he himself pointed out, I believe, in that ruling, he cannot examine representations made before him. He must take every representation at face value and determine, on a prima facie basis, whether there are the makings here or the basis here for a point of privilege warranting further consideration, in particular by a committee if the House so directs. And of course, that is what happened.

I mention it only to say that, in my view, the committee is not bound by the Speaker's ruling. It is simply an indication of the prima facie point that the Speaker, from what he heard in the House, thinks that prima facie there is a breach of privilege here.

The House, in due course, directed this matter to the committee. Now it's the committee's task to determine, on further inquiry, whether in fact a breach of privilege occurred here.

In that regard, I think members may be well served to read the O'Brien-Bosc text on breaches of privilege. In particular, you may recall that the Speaker quoted from page 111 of that text.

I would draw particular attention to that portion of the text at page 111 where the O'Brien-Bosc text points out that,

A Member may also be obstructed or interfered with...by non-physical means.

And it says,

If, in the Speaker's view, the Member was not obstructed in the performance of his or her parliamentary duties and functions, then a prima facie breach of privilege cannot be found.

Broadly speaking, at some point it would seem to me that the test for the committee is whether the member was obstructed in the performance of his duties as a member of Parliament by the ten percenter of which he complains.

So what constitutes obstruction? It would also appear from the material that establishing representations damaging to the member's reputation or providing misleading information would in and of itself constitute an impediment to a member performing his parliamentary functions. That, in my view, is a matter for the committee to consider. Do you need to hear evidence of the impairment or impediment to the member's function, or is it appropriate that you simply establish that there was a misrepresentation offensive to the reputation of the member and that, ipso facto, gives rise to an impairment to his ability to do his job as a member of Parliament?

There is a quote on page 111, not cited in the Speaker's ruling, from a ruling by Speaker Fraser. Speaker Fraser, in 1987, said the following—and I think it's worth reading this out for the record:

The privileges of a Member are violated by any action which might impede him or her in the fulfilment of his or her duties and functions. It is obvious that the unjust damaging of a reputation could constitute such an impediment. The normal course of a Member who felt himself or herself to be defamed would be the same as that available to any other citizen, recourse to the courts under the laws of defamation with the possibility of damages to substitute for the harm that might be done. However, should the alleged defamation take place on the floor of the House, this recourse is not available.

Well, this defamation, if it's that, did not take place on the floor of the House, so arguably there is an action in defamation available to the member relative to the misrepresentation of which he complains. However, it is also the case that this kind of communication can be the subject of a breach of privilege, so it has been brought forward by the member and accepted on a prima facie basis by the Speaker and the matter referred to this committee.

I read that citation from pages 111 and 112 to the committee because its reference to defamation gives rise to whether the committee wants to hear from me on the comparable situation between what you're looking at and what the courts do when they look at a defamation action and the kinds of requirements the courts need to see before they will find a defamation. I won't go into that now, because it may not be of any interest to committee members. If it is, I'm prepared to do that.

Let me summarize by saying there are two dimensions to a breach of privilege question. You might call it objective and subjective. The objective one is whether the facts are there to support the basis for a breach of privilege, and that's what I'm referring to here in Marleau and Montpetit, or O'Brien and Bosc as it's now called. The subjective one is along the lines of beauty is in the eye of the beholder. What is a breach of privilege at any time is what the House thinks is a breach of privilege in the circumstances of each case.

So while you're not bound by precedents, they can be persuasive. There's the case of Mr. Masse in 2005 that the committee may want to look at. The facts are sort of comparable to what you're dealing with here.

But really it's up to the committee, in a subjective sense. If the committee feels there was a breach of privilege, then that's the view of the committee and that's presumably how the committee will report to the House. If, on the other hand, the committee does not feel that, that's the end of the matter, I suppose. Objectively, some criteria that are available to you, as set out in O'Brien and Bosc, may offer some guidance to the committee.

I have no further statements at this time, Mr. Chair.

[The Chair, Conservative, Joe Preston]

Super. Thank you very much.

We'll go to questions from members.

Mr. Volpe, it's great to have you here today. We'll let you lead off.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Thank you very much, Mr. Preston.

Having been one of those people who received one of those percenters--I think it was from you--I'm kind of wondering whether I'm speaking to you or speaking to Mr. Walsh.

[The Chair, Conservative, Joe Preston]

Give us both a shot.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Well, no, but...I wanted to give you a different shot when I received the communication.

Mr. Walsh, I took a look at some of the definitions for breach of privilege, and I think that's what this committee is looking at. It really isn't looking at anything else.

The breach of privilege is an issue, in layman's terms, that impedes the ability of the member of Parliament to perform his or her duties in the context of the expectation of the public that there is an honourable and honest job being done. So when a communication comes out that says, or infers, or implies—I guess the word is “implies”—that this is not in fact the case with a particular member of Parliament, then the member's ability to address his or her duties is therefore impaired.

Is that the way you see this particular definition unfolding?

[Rob Walsh]

I'm afraid to say this, but typically, as you might expect a lawyer to say, it's a little more complicated than that.

Members of Parliament, as you well know better than I, are subject to comments challenging their fitness for their role as members of Parliament. It's part of the public debate.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

That's true, but as one member of Parliament to another in the House; we're talking about something that happens outside the House.

[Rob Walsh]

Correct, but even outside the House criticisms are made by one member of another about the person's suitability to perform his duties as a member of Parliament.

But I take your point seriously. I'll go to an example, which is purely hypothetical. If a...

I don't mean to make any comment on this particular householder, Mr. Chairman. It's not my place to comment on whether this householder is or is not a breach of privilege. This is a purely hypothetical examination.

Let's go to the question of inferences. The question of whether the facts stated are true or not you can look into and examine whether the statement is factually true or not. Even if it's factually true, you have the question of inference. Is there an inference by that statement of a kind that impairs the member's ability to do his duty?

Let's go to a different fact pattern. It's a silly example, I suppose, but it illustrates the point. You have a householder that says member so and so plays with little children. Well, hell, if he's a grandfather or a father, good for him. They're lucky to have grandchildren to play with. But if the next line is “Help stamp out child abuse”, clearly the inference from the earlier statement, which itself is quite true and rather innocuous, in my view would be that the member is part of the problem of child abuse.

The important consideration there, in my view, is that it's not a political statement about the member, it's a personal statement. It goes to the personal character of the member as a human being, whether he's a public office-holder or not. It goes to the personal character. And it may have the result that, if there's thought to be any truth to the inference, he's shunned by his colleagues in caucus, or he's shunned by fellow members of Parliament because he's a persona non grata in a moral sense, or, in an electoral sense, he's shunned by the constituents in his riding.

It seems to me there's an example of where a comment is made that is prima facie innocuous but context is not innocuous, and it reflects on the personal character of the member. That arguably, in some circumstance, could give rise to the inability of the member of Parliament to carry out his duty as a member of Parliament.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

So in your studied estimation, then, a householder that goes out, or a ten percenter that goes out, laden with the potential inferences, maybe perhaps specifically designed to raise inferences that are not partisan, per se, but really address the individual--the individual approach, from there, flowing back on a partisan issue--has crossed the line in terms of impacting on the member's ability to do the job.

There's no debate following it. I mean, once something is out there, it's out there in the public domain. One can't go out there and speak to another 10,000 households and say that this is wrong. There would appear to be a clear preponderance of fact and innuendo in one direction that obviously the individual cannot possibly fight back on in a debate environment. It's clearly impossible. So the intent would appear to be to cause the inference to explode beyond control.

[Rob Walsh]

There are number of issues in what you have said there.

I don't want to comment on intents here, because that's a matter of self-inference as to what was or was not the intent. But it shouldn't happen that, with or without intent, an inference is available from what is said of a kind that reflects unfavourably on the member.

The legal approach is to ask whether that lessens the reputation of the individual in the mind of the reasonable thinking person. That's what the courts say themselves relative to a defamation. Does it lessen the estimation of that person in the mind of a reasonable thinking person? Everyone, of course, is entitled to their reputation in the public sphere—and the private sphere as well.

It depends on what you're saying. It depends on the nature of what is said or what is inferred as to what the impact is upon the individual who is being referred to. Is it of a kind that will make everyone think less of the member to the point where he is impaired in doing his duty, or is it of a kind that might be seen as a criticism that may be unfavourable but is part of the political debate?

In this context, I think you have to think in terms that there could be a political criticism arising in the context of a political debate and be hurtful of the member's position politically, or it could be that plus a personal inference of a kind that causes the member to be seen as disreputable or dishonourable or in some manner not to be trusted or unworthy of consideration in his community or in the House or at committee. Is it a lessening of the regard people have for the member, whether it's other members, or constituents, or private citizens? In other words, whoever reads this, do they think less of the member as a person--not less of him as a Liberal member of Parliament, but less of him as a person--as a result?

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

From a legal perspective, then, given that kind of a context, would a direct statement or an inference that someone would be—I don't know—anti-Semitic or anti a particular other group cause an individual to be cast in the light that you have just described as being unfavourable and therefore unsuitable for a particular activity?

[The Chair, Conservative, Joe Preston]

Your time is up on that one.

I'll let you answer the question.

[Rob Walsh]

I'll answer just briefly without commenting on the particular householder before the committee.

Let's go to a different label. Let's say that the statement was that member so and so is sympathetic to al Qaeda and the terrorist agenda of al Qaeda. Now, that might be something that is not merely a matter of political significance; it may have a personal impact on the standing of the member in his community and in the House, that he would be attributed to having this kind of sympathy toward terrorism.

Perhaps that helps, Mr. Chair.

[The Chair, Conservative, Joe Preston]

Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you, Mr. Chair.

I appreciate that you got Mr. Volpe's and Mr. Walsh's answers in there, though they extended a little past seven minutes. I hope we'll have a bit of latitude as well.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

No.

[Some hon. members]

Oh, oh!

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I know we have lots of questions on this. Let's face it, the determination of breach of privilege is a serious matter.

I want to go back to an examination, Mr. Walsh, of what you were talking about concerning the objective versus the subjective.

In the case of Mr. Cotler, if we're looking at the veracity of statements in the ten percenters in question, I think without debate—although I'm sure there'll be an attempt at debate here—all of those statements were accurate, and they're a matter of public record.

In the ten percenter of Mr. Stoffer, on the other hand, the statements made were inaccurate. So I think, quite frankly, on an objective basis there can be a case of breach of privilege to Mr. Stoffer, because the ten percenter contained information that was simply not true.

In Mr. Cotler's case, even though the information would be upsetting to him, there is nothing in there that I would contend. I can certainly verify the veracity of all these statements with articles on the public record. So if the statements are objectively true, then it would come down to the subjective. The statements, although highly critical of the Liberal Party, did not name Mr. Cotler personally in any of that literature.

It's your contention that if the committee found on a subjective basis that Mr. Cotler's reputation was harmed, or he found it difficult or was impeded in his ability to do work, this committee could then still find a breach of privilege. Is that accurate?

[Rob Walsh]

Yes. The committee can do what it wants relative to whether there was or was not a breach of privilege.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

And that is regardless of the veracity or accuracy of the statements.

[Rob Walsh]

That's correct.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

My question is, then....

It's a pretty thin line, and in a committee structure such as this, where we have the opposition parties, for example, outnumbering the government, it may simply come down to the fact that the opposition will vote one way and the government will vote the other. But it should really go beyond the partisan nature of this committee, because it is an entirely serious matter.

Let me frame it this way. If this literature were put out in the middle of a campaign, I don't think—this is my own personal view—that Mr. Cotler or anyone else, if it were directed to Mr. Volpe or anyone else, would have a case to sue for defamation, because all the literature does is point out accurately the position and statements made by members of the Liberal Party. But since it was not in the middle of a campaign, Mr. Cotler seems to have suggested—not suggested, but he stated—that this was injurious to his reputation and impeded his ability to do his job as an MP.

How do you square that circle? If one of his political opponents during the next campaign, whenever that will be, were to put out a campaign piece of literature exactly like this, with accurate statements, what recourse would Mr. Cotler have?

[Rob Walsh]

You raise an interesting question here.

First of all, breach of privilege, as you're probably well aware, or the rules of privilege don't apply during an electoral period. After all, Parliament has been dissolved. There is no Parliament, and the electoral period is a different situation; however, you can still sue for defamation for something that's said during the course of an election campaign. Now, you run into different issues, to some extent, because then the defendant will invite the court to consider whether what was said was a matter of fair comment on a matter of public interest. I can explain to you what that means.

The defendant typically might say, in any defamation action, that what was said was true, or, if it's not a matter of whether the facts were true but is a matter of comment, that it was a fair comment. You have to remember the distinction between facts and comment: there are facts, and then there's comment about the facts. The question with fair comment is whether the fair comment was made honestly and in good faith on a matter of public interest.

Saying something publicly about something that relates to a person's private life would arguably, prima facie, not be a matter of public interest. But certainly, if it's a public debate—let's say the recent debate regarding reproductive services to women—and all of a sudden there was a charge made against a member regarding his support for one type of service over another, and the charge had implications for that individual, given his riding and his religious faith and all the rest of it, then maybe there would be a basis for an action for defamation by the member.

But it also is a matter of public interest; it's a large public debate. In a matter of fair comment, the law says basically that there are five things that have to be shown. One is that it's a comment, not a fact; secondly, that it was based upon facts that are true; thirdly, that the comment was made honestly and fairly; fourthly, that there was no malice; and finally, that it was on a matter of public interest. If you establish those, you have a defence of fair comment, and in the context of an election, that may be available.

However, let me point one thing out to you. Recently—I think it was in the last election, or the election before—a member of Parliament went to court during an election campaign and obtained an order of the court, an interim injunction, to stop the distribution of a certain householder that had false representations made in it. Now, as the earlier member was saying, in a sense that householder was distributed, may have had an impact on the riding, and so on, but the court did accept that, in that situation, it was false, and would cause damages that would be irreparable. So an injunction was granted to the member, ordering not the pulling back of what was distributed but no more distribution of the flyer.

So there is legal recourse available to a person in the course of an election campaign.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I appreciate the clarification of that. What I'm struggling with is simply this: the first step in any determination of a breach of privilege or a non-breach is the Speaker's ruling of its prima facie character, which just says, basically, that there is some indication that something might have happened; then it's up to the committee to determine after that.

My concern--I think it could happen to any one of us here--is that we are obviously in a profession that encourages partisan debate and partisan rhetoric at times. We're certainly all guilty of it, if you want to frame it as such. But the problem I have and the concern I have is that if any member of Parliament sends out a householder that is completely accurate in its content into another member's riding, and that member says, “Look, this has embarrassed me. My constituents are now asking what the heck my party is doing, and if this is true. It's hurt my ability to do my job.”

I mean, any one of us could make that argument, and in fact a committee could say, yes, right, there's a breach of privilege.

Then where's that line? It would never happen in a campaign. We have determined that. So how are we supposed to guide ourselves?

Frankly, I'd like to come back to you on this, Mr. Walsh, because I think this is something that the committee needs to take very seriously. If accurate comments are made, and yet you could still be found in breach of privilege--