Evidence of meeting #6 for Procedure and House Affairs in the 40th Parliament, 3rd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was witness.
A recording is available from Parliament.
Liberal
Joe Volpe Liberal Eglinton—Lawrence, ON
If you don't mind, I'll speak before Mr. Walsh answers this.
That's three times that Mr. Lukiwski has used the word “accurate”.
What that householder said was “willingly participated in overtly anti-Semitic Durban I”.
Just because the ten percenter used those words does not make it accurate. So it's an accurate reflection of—
Liberal
Joe Volpe Liberal Eglinton—Lawrence, ON
The word “accurate” is what's being discussed, and I'm wondering whether Mr. Walsh will address that.
Conservative
The Chair Conservative Joe Preston
Well, this committee, Mr. Volpe, is seized with determining the accuracy, and better witnesses, I assume, will be before us then. Mr. Walsh is here to give us information on defining breach of privilege and the steps the committee may have to take.
I'm certain that we'll get to where you're going, Mr. Volpe, but we're just not going to get there with this witness, I don't think.
Let's move forward.
Go ahead, Michel.
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
Thank you, Mr. Chair.
As my colleague Mr. Lukiwski just said, we need to recognize, on a prima facie basis, that the Speaker ruled on the question of privilege raised by the two members that there was a possible breach of privilege. The next step is to assess the evidence.
Mr. Walsh, I would like to hear your comments on this issue. Mr. Volpe's objection was along those lines. We have to separate the objective from the subjective. In politics, my truth and my beliefs may differ from those of my colleagues in the other parties. We are therefore going to have to review the wording of each sentence in the mailing, word by word, and look at whether, for example, the word willingly is accurate. We will never get through it.
I would like to hear your comments on the need to distinguish between what is objective and what is subjective.
Law Clerk and Parliamentary Counsel, House of Commons
That is a good question, Mr. Guimond. As you know, the courts usually consider the issue objectively, not subjectively. However, a person may really have difficulty accepting certain comments. Earlier, I gave you the example of a person's moral character. I am not talking about the mailing in question, but about how things happen in general. Certainly, there are comments from both sides. They go back and forth. Are they true or false? It is up to you to decide, not me.
As for the objective aspect, the approach, the procedure to take to reach a conclusion, you must consider the evidence. Will witnesses provide evidence proving that harm was done or not done to Mr. Cotler? If there is no evidence, all the members may still consider that a given comment infringes on the member's privileges and impedes his ability to function as a member. That is just a committee finding. That is all. It is subjective, but the committee has the right to make that decision.
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
Mr. Stoffer's case is slightly clearer. Mr. Vellacott's mailing said that Mr. Stoffer was in favour of gun control, whereas he was opposed to it. Is that accurate?
I would like to know whether an apology from a colleague who sent such a ten percenter changes anything. The ten percenter was sent, so the damage is done, but is an apology enough to put an end to the matter?
Law Clerk and Parliamentary Counsel, House of Commons
It can be, but an apology is generally related to the damage done. It has to be determined whether the damage is alleviated by the apology. Sometimes, the plaintiff tries to obtain a court ruling confirming that what was said was false. But often the problem is that we are talking about comments made about the facts. The Stoffer case, though, is just a question of facts. The member apologized. But in this case, it is perhaps more a question of comments than facts. Is the comment justified under the circumstances? Does it affect the member's moral character to the point where he cannot face his constituents or his colleagues in the House or in committee? Is it a moral insult?
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
You know that redress for libel is one of the principles of law. A distinction needs to be made. In French, the media sometimes use the words incorrectly and say, “He committed defamatory libel.” That is simply incorrect. Libel is written, and defamation is usually verbal.
Someone who commits libel is usually asked to correct it in the same way. That is why newspapers that have not investigated thoroughly enough and have received a formal demand from someone who felt that information about them was inaccurate regularly publish corrections on the same pages, in the same spot and for the same readership, if possible.
But I remember that when Mr. Cotler testified before this committee, he wanted more than an apology about this ten percenter. He felt that his parliamentary privileges had been breached and that this mailing had violated his privileges. He called for corrective action and for the printing costs to be reimbursed. But that is not the issue.
Suppose that I live in the Town of Mount Royal and I received this ten percenter from the Conservatives, signed by our Chair, Mr. Preston.
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
How is that corrected? What is the remedy?
Law Clerk and Parliamentary Counsel, House of Commons
The remedy is another ten percenter in Mr. Cotler's riding to explain that the statement was false.
It is hard to say how what was done can be undone if the statement is false. That is why the courts sometimes award damages by way of compensation.
But this does not really make up for what was done, because a person's reputation was damaged and, in some cases, the damage remains even though compensation has been paid.
It is impossible to verify whether the situation has really been corrected after defamation has been committed and a false statement has been made. If someone has a national reputation, then an apology at the national level is necessary. If someone has a local reputation, then an apology at the local level is necessary.
NDP
Yvon Godin NDP Acadie—Bathurst, NB
Thank you, Mr. Chair.
Let us say that a statement is false and damages a member's reputation. In that case, can the House require the offending member to pay for the ten percenter?
Law Clerk and Parliamentary Counsel, House of Commons
The House has the power to take disciplinary action against a member. In my opinion, there is a hypothetical limit to what the House can do. It can impose a fine. Is that a good idea? Will it correct the situation? I do not know, but it is possible.
NDP
Yvon Godin NDP Acadie—Bathurst, NB
Peter Stoffer's case is said to be clear. Statements were made that contradicted what Mr. Stoffer had said or how he had voted in the past. In any case, that is clear.
In reality, in this case, we have to determine the same thing. That is what we must do. Are the comments true or false?
Law Clerk and Parliamentary Counsel, House of Commons
Not really, Mr. Godin.
In the case of a comment, the question is not whether the comment is true or false. When it comes to a comment, legally, what we are asking is whether it is fair and acceptable under the circumstances.
If it is a question of facts, are the stated facts true of false? But are we talking about facts or comments? That is an important question the committee has to ask itself. Are we talking about a comment or a statement of fact? The legal measures are different. It is up to the committee to consider these questions.
NDP
Yvon Godin NDP Acadie—Bathurst, NB
How is it different? If I make a comment that includes false information, the comment is false, it can—
Law Clerk and Parliamentary Counsel, House of Commons
In the case of a comment, the question is not whether the comment is true or false. The question is whether the comment is fair.
NDP
Law Clerk and Parliamentary Counsel, House of Commons
Legally, the question is whether the comment on a matter of public interest is fair under the circumstances. Okay? I do not want to make any comments about this mailing in front of the committee; I want to provide you with the legal background about comments. It is not the same thing as determining whether a statement is true or false. That is a question of facts. One can request evidence and find that the statement is true or false. It is a simple matter.