Evidence of meeting #29 for Procedure and House Affairs in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was threats.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Ned Franks  Professor, Queen's University, As an Individual

11:50 a.m.

Conservative

Harold Albrecht Conservative Kitchener—Conestoga, ON

Thank you, Mr. Chair.

Thank you, Minister, for being with us today.

I would like to respond to a comment made by my colleague across the way, which was that perhaps the situation we're facing today is the 21st century version of what happened 40 years ago with an anonymous letter. I couldn't disagree more. Certainly the anonymous letter was a threat, but it was probably seen by a few people at most.

Here we have a situation in which a threat is seen by millions of Canadians, and possibly by billions of viewers worldwide. I think it's a huge difference in terms of the implications of the potential threat that we as parliamentarians open ourselves up to.

You pointed out rightly that when we enter politics, we are very much aware of the risks we take on in terms of criticism. None of us expect to do our job without criticism, and you've indicated that we develop a rather tough skin to be able to face that and deal with it.

Another colleague commented earlier and implied that because something's posted on YouTube, there's really not much we can do. I think to accept that we just have to go on as normal is perhaps too easy a way out. If threats are made, especially against a public official, is it not reasonable for us to expect that there would at least be a criminal investigation in terms of the livelihood of the person who is being threatened?

11:50 a.m.

Conservative

Vic Toews Conservative Provencher, MB

Not only do I think it's reasonable to expect it, I think our parliamentary system demands it. What steps should Parliament or a committee take if a member is being intimidated, coerced, or extorted on a public website because of his or her responsibilities and actions in the House of Commons? Maybe many of you have already heard this from constituents who are concerned about false statements being made on the Internet. How does one talk to YouTube, short of filing a legal action to get them to take it down?

I think this is something that needs to be discussed. If something clearly criminal in nature is on the Internet, especially if it relates to the duties of a public official, does the House of Commons have a responsibility to approach those who post it or provide the service and indicate that it is inappropriate and should be taken down? To what extend should that be done? Could that be properly done? I'm always mindful of the fact that we, as a House of Commons, shouldn't interfere with freedom of expression, but that, of course, has its lawful limits.

11:55 a.m.

Conservative

Harold Albrecht Conservative Kitchener—Conestoga, ON

I want to thank you, Minister, for raising this issue. You've certainly been very vulnerable. I think it's important that we address it, because it impacts on those who may be considering entering public service. As you rightly pointed out, everybody around this table entered public service to serve Canada and make it a better country for our children and grandchildren. A threat of intimidation will certainly make it less likely that many of these people will step forward to serve.

My thanks to you.

11:55 a.m.

Conservative

The Chair Conservative Joe Preston

Thank you.

Madame Latendresse may ask a short question. Then Mr. Kerr may ask a short question also.

March 27th, 2012 / 11:55 a.m.

NDP

Alexandrine Latendresse NDP Louis-Saint-Laurent, QC

I would like to go back to your opening statement. You referred to the work by O'Brien and Bosc that explains why you consider this to be a breach of your privileges. In the same book, a little further on, in chapter 3 on privileges and contempt of Parliament, O'Brien specifies quite clearly that if the person responsible for the contempt or breach of privilege cannot be identified, the practice is simply to declare that there has been a breach of privilege, but that nothing more can be done. The book explains that there have been many breaches of privilege, and provides a list. We recognize that there has been a breach of privilege. That is unfortunate, it is deplorable, but it seems the committee or the House can do nothing more. Has legal action been instituted? I think that the only authorities who could do something are those who could, with the help of YouTube or something akin to that, track down those who did this.

Concretely, the committee is trying to see what it can do. We fail to see what more we can do here. There is going to be an investigation, that is one thing, but it is not our role to conduct a criminal investigation. Can you tell us where you want us to go with this?

11:55 a.m.

Conservative

Vic Toews Conservative Provencher, MB

At the risk of repeating myself, I'm not asking this committee to become a court of criminal investigation; I am asking this committee to consider the impact of this type of activity, through the use of the Internet, on the ability of members to carry out their responsibilities. Do we simply say it is a fact of life in the 21st century that members will be intimidated in a criminal fashion, and Parliament has no remedy and can't take steps to lessen the impact of this?

11:55 a.m.

NDP

Alexandrine Latendresse NDP Louis-Saint-Laurent, QC

As Ms. Charlton was saying earlier, it is a little as though you had received an anonymous letter.

11:55 a.m.

Conservative

The Chair Conservative Joe Preston

Thank you.

Mr. Kerr may finish with one quick question.

11:55 a.m.

Conservative

Greg Kerr Conservative West Nova, NS

Thank you, Minister, for being here.

The Speaker's ruling talks about the flagrant disregard of traditions. I think we're all under attack with that in the social media and all that is taking place. More important is the attack on the fundamental privileges of members.

In that context, I'm wondering if you're suggesting or thinking about not only upgrading information and so on, but also checking with other jurisdictions as to best practices and that type of thing. The fact is that social media are changing dramatically quickly, with the advent of groups and organizations—or disorganizations, whatever you call them—that are interjecting.

Do you see that as the kind of role we should pursue?

11:55 a.m.

Conservative

Vic Toews Conservative Provencher, MB

I can hardly think that what has happened to me and to the privileges of all members in this particular case is unique. There must be other examples in other democracies, and I think it would be worthwhile for the committee to at least contact other jurisdictions to see what steps, if any, they felt were necessary in that context.

11:55 a.m.

Conservative

The Chair Conservative Joe Preston

Thank you for coming today to give us your time and help with this investigation.

We will suspend for a couple of minutes while we change our witnesses.

Noon

Conservative

The Chair Conservative Joe Preston

I call the second half of our meeting back to order.

We have Professor Franks with us today. He has been at our committee before.

It's always a great day when you're here, sir. I understand you have a bit of an opening statement. Then we'll go to questions from the members. You know how all this works.

Noon

Dr. Ned Franks Professor, Queen's University, As an Individual

I'm always surprised, sir, but it's an honour to be here. I prepared some remarks which, with the permission of the committee, I will read, because I tried to be very precise in my expression of things.

My observations on the privilege issue raised in the House of Commons by the Honourable Vic Toews, the Minister of Public Safety, on February 27, 2012, are those of a non-lawyer and an outside observer of the unfortunate events that occurred in the House of Commons in recent weeks. These events are too well known to be recapitulated here.

Mr. Toews raised three issues of privilege: one, the use of House resources for the so-called Vikileaks30 account on Twitter, which he claimed was used to attack him personally, thereby degrading his reputation and obstructing him from carrying out his duties as a member of Parliament; two, an apparent campaign to inundate his office with calls, emails, and faxes, which he contended hindered him and his staff from serving his constituents and preventing constituents with legitimate needs from contacting their member of Parliament in a timely fashion; three, the videos posted on the website YouTube by the so-called Anonymous on February 18, 22, and 25. These videos contained various allegations about the minister's private life and made specific and disturbing threats against the minister.

On the first, the Speaker ruled on March 6 that in view of the unequivocal apology of the interim leader of the Liberal Party, he was prepared to consider this particular aspect of the question closed.

On the second, the Speaker concurred with an earlier ruling by Speaker Milliken, which was that while the member had a legitimate grievance because the normal functioning of parliamentary offices had been affected, the members involved and their constituents had still maintained the ability to communicate through several means, and he thus could not find a prima facie case of privilege.

On the third issue, which to Mr. Toews was the most troubling one, the Speaker ruled that:

...when duly elected members are personally threatened for their work in Parliament, whether introducing a bill, making a statement, or casting a vote, this House must take the matter very seriously.

He concluded that the online videos did, indeed

...constitute a direct threat to the minister in particular, as well as other members. These threats demonstrate a flagrant disregard of our traditions and a subversive attack on the most fundamental privileges of this House.

The House referred the matter to the procedure and House affairs committee for investigation.

My remarks here will deal with only a few of the issues this important matter of privilege raises: first, the context and events that led to the anonymous threats against the minister; second, the issue of harm versus offence in this sort of verbal assault; third, the peculiar difficulties facing the House in pursuing this matter; and fourth, what punishment the House can impose if it makes a finding of a breach of privilege.

First is the context and events. This issue began with the introduction into the House of Commons of Bill C-30. Its long title when it was introduced and received at first reading was An Act to Enact the Investigating and Preventing Criminal Electronic Communications Act and to amend the Criminal Code and other Acts. Its short title, as introduced, was the Protecting Children from Internet Predators Act.

Mr. Toews was posed a question in the House: Mr. Speaker, the government is preparing to read Canadians' emails and track their movements through cellphone signals, in both cases, without a warrant.

How can we trust them not to use private information to intimidate law-abiding Canadians...?

In response, the minister stated:

We are proposing measures to bring our laws into the 21st century and to provide the police with the lawful tools that they need.

He added that the questioner

...can either stand with us or with the child pornographers.

Ms. Elizabeth May told the House that when the bill was first given to the opposition, its short title was the “Lawful Access Act”. The government had subsequently changed the short title to the more inflammatory Protecting Children from Internet Predators Act. Ms. May wondered if there was a point of order in this change. The Speaker found that there was not. A cynical observer might suspect that the government made the last change to the bill's title so that the minister could utter his one-liner that the questioner “can either stand with us or with the child pornographers”.

Opposition members of Parliament, much of the media, and many others found the minister's comment offensive.

Meanwhile, Vikileaks published the court record of Mr. Toews' divorce case on the web. Several government ministers accused the NDP of releasing the court document. Subsequently the interim leader of the Liberal Party, Bob Rae, informed the House that one of his party's staffers had leaked the information and that this staffer had been fired.

A point of privilege raised by Mr. Toews relates to only a very small part of this long and complicated story, which is the anonymous threat of bodily harm to the minister on a website outside the purview of Parliament. The matter that is the subject of this privilege investigation came to Parliament as one of a long series of events instigated by Mr. Toews' comment that the choice was to stand either with us or with the child pornographers. Nevertheless, it was a product of that statement.

It is worth noting that there were flaws in this bulky piece of legislation, that it deals with far more issues than child pornography, and that the original title, “Lawful Access Act”, more accurately described its contents than the title “Protecting Children from Internet Predators Act”.

Now I'll make some comments.

First, the minister's claim that a member can either stand with the government or with child pornographers, to say the least, denies the parliamentary principle that it is the duty of Her Majesty's loyal opposition to oppose and not acquiesce meekly to all proposals of Her Majesty's government. It was an unnecessary, aggressive, and inflammatory comment, in my view.

Second, I wonder whether there is a serious and identifiable harm involved in this matter or whether the threats made on the Internet are simply offensive. I take no sides on this; I do want to suggest that for an action or utterance to be found to constitute a breach of privilege, it should come closer to meeting the test of causing a harm rather than the lower threshold of being simply offensive.

Third, if the House determines that there has been a breach of privilege in this matter, what sanctions can it impose? At the time I write this, Parliament has not been able to identify the anonymous perpetrators of the web material at issue. Can the House find that there has been a breach of privilege committed by a person or persons unknown? Even if the perpetrators are unmasked and found guilty, what happens then? The House can put persons found in contempt of Parliament into custody, but this has been done rarely, and only in the distant past.

Fourth is the risk, arising from these events, of reducing public regard for Parliament and politics. The concept of and administrative studies on the tone at the top refer to how an organization's leadership creates the tone at the top and an ethical or unethical atmosphere in the workplace. The tone at the top has a trickle-down effect on employees. If top managers uphold ethics and integrity, so will employees, but if upper management appears unconcerned with ethics, employees will feel that ethical conduct is not a priority. In short, employees will follow the examples of their bosses.

In the question of parliamentary privilege examined here, the public is the parliamentary equivalent of employees. The tone at the top, as shown in the words and behaviour of MPs, affects public respect for and trust in their Parliament and parliamentarians. In my view, and I regret to say this, the tone at the top has not been entirely high in this issue.

Thank you.

12:10 p.m.

Conservative

The Chair Conservative Joe Preston

Thank you, Professor Franks.

I believe I have Mr. Reid first.

12:10 p.m.

Conservative

Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON

Thank you.

Professor, this the second March in a row we've had you back here as a witness. The last time we had you in here, the government fell. We're hoping we can have a different outcome after you've been here. I don't hold you personally responsible for that, by the way; in fact, I thought the testimony you gave last time regarding the costing of bills was very good. Of course, as you know, I approached you afterward, and I have since passed that on to other people. I thought it was very sound testimony during what were, frankly, a set of histrionic hearings, so it was much appreciated.

I wanted to get into the dividing line between offensive and threatening. That is a question that is not, I think, dependent upon the kind of technology used. Once we've dealt with that, perhaps we'll have time to talk a little bit about how technology and the use of the Internet may cause something to be different in nature, perhaps, than it was when done in a pre-Internet paper world.

With regard to the question of what is merely offensive and what is threatening, do you have any additional thoughts as to where one draws the line and how one establishes where something becomes threatening?

12:10 p.m.

Professor, Queen's University, As an Individual

Dr. Ned Franks

I can do that, but it's simply an opinion on an extremely difficult topic. What I'm trying to suggest is that there's a spectrum here. It begins with things that are obviously offensive, but only offensive at one end. At the other end, it has items that are clearly producing harm and that I believe should be regulated by the law.

The person I'm quoting is a very conservative judge in England, Lord Devlin, who said that the law should be used when the issue at stake involves feelings of intolerance, indignation, and disgust. If we apply that here, we should ask whether the remarks of Anonymous on the web about the Honourable Vic Toews engender in us, and particularly the committee members, feelings of intolerance, indignation, and disgust; any two of those, I think, would do for this.

This is obviously very subjective. We're beyond harm, but we're in an area where we do have to ask whether we should use the power of the law or whether we should leave it as something outside of it. All I can say is that the answer changes over time. It's really up to this committee to ask if they feel, as MPs, that this kind of threat produces not only indignation and disgust but a very real potential harm. Then I think that you go on.

12:15 p.m.

Conservative

Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON

I was going to ask about that. One of the thoughts that occurred to me was the distinction between being offensive and being threatening. That which is offensive is to some degree subjective, whereas that which is... As well, we see reversals of valence on this sort of thing; the 8th Army called themselves the Desert Rats. Originally that was a term of disdain, and they said that they kind of liked it.

Offensive is to some degree subjective, whereas threatening presumably is measurably objective. If I threaten to beat someone up as opposed to threatening to kill them, as opposed to threatening to burn their house down, those are three distinct types of objectively definable offences. I'm wondering about your thoughts on that.

12:15 p.m.

Professor, Queen's University, As an Individual

Dr. Ned Franks

Yes, I agree. On the other hand, there are parts of the law that protect people from offensive or potentially harmful speech acts, such as libel, sedition, or obscenity, and there are others.

What we have here is a speech act—well, calling the web “speech” is, I think, acceptable here—that issued a threat and also made other derogatory comments, as far as I can understand. The question is the threat. I have seen members threatened before. Often threats are figures of speech. One doesn't know what lies behind it, but at the minimum, it's an offensive thing to do.

The question before the committee is that if it goes beyond that, is it a breach? Clearly, in the doctrine of parliamentary privilege, threats of death against a member or any threats and efforts to intimidate a member in the performance of his or her duties are a breach of privilege.

12:15 p.m.

Conservative

Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON

The only threat that would cause the member to act other than the member would act on the basis of an objective consideration of the issues would, I think, have that effect. Obviously that doesn't include a threat to not vote for you in the next election, but it includes a threat of some sort that causes the normal thought process to be adjusted.

12:15 p.m.

Professor, Queen's University, As an Individual

Dr. Ned Franks

I agree, and I made the point here, which I really did not like making but I think has to be made, that the original statement that those who are not with us are in effect on the side of the child pornographers is certainly objectionable. It classes anybody with legitimate objections to the act, which was flawed, as somebody supporting child pornography. I don't think that statement reaches the threshold of a threat, but I find it offensive.

That's the point that I'm trying to get across here. We're in a territory where the privilege act does not stand by issue, does not stand by itself, but is a consequence of something else.

I've often wondered, looking at this, if a member had raised a question of privilege at the minister's statement that those who are not with us are with the child pornographers, whether that would not have been construed as a question of privilege as well. I find it certainly offensive to members who have legitimate disagreement with the act; whether it's a harm, I can't say.

12:20 p.m.

Conservative

The Chair Conservative Joe Preston

I believe your time is up. Maybe you can go back.

Mr. Comartin is next.

12:20 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Thank you, Mr. Chair.

Thank you, Professor Franks, for being here.

I must admit that I'm not quite clear on your position. If you could put yourself in the position of the Speaker, Mr. Scheer, having heard the arguments you heard from all sides of the House, would you have ruled that this was a breach of privilege in this case?

12:20 p.m.

Professor, Queen's University, As an Individual

Dr. Ned Franks

Yes, I think I would have said there was a prima facie breach of privilege on which I would ask the committee to give me advice. I certainly find it offensive, but if I had been the Speaker, I would have asked whether we had transgressed that boundary between offensive and harmful here.

12:20 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Okay. In terms of the role that we're now having to play as a committee in making a final determination as to whether there has been a breach of the privilege of the member, is the fact that you have threats combined with—let's assume—only offensive words not sufficient? It's very clear: “You must resign your seat and you must withdraw this legislation, or else”. Are the two combined, along with the clarity of what they are demanding as action on the part of the minister or the member, not sufficient to make a final determination of breach of privilege?

12:20 p.m.

Professor, Queen's University, As an Individual

Dr. Ned Franks

You're asking me for an opinion on something. I maintain that I'm not a lawyer. I can't give you a legal opinion on it. I can give my subjective, personal opinion.