Evidence of meeting #20 for International Trade in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
6:45 p.m.
Conservative
The Chair Conservative Lee Richardson
Well, we're going to ask the committee for their agreement. If there is agreement, we'll proceed.
6:45 p.m.
Conservative
The Chair Conservative Lee Richardson
I've heard your point of order.
We have a question. May I ask the committee if they're in agreement that I should have Mr. Miller replace me here at this time?
6:45 p.m.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
I've asked you to please consult the clerks. That's why they're here, Mr. Chair: so we don't get into the kind of trouble we're already in--
6:45 p.m.
Conservative
6:45 p.m.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
--about violating the fundamental Standing Orders that we're governed by. We're already in trouble enough, Mr. Chair--
6:45 p.m.
Conservative
6:45 p.m.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
I think the report is in difficulty. There's no doubt about that--
6:45 p.m.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
So the Standing Orders say very clearly that you have a president, a vice-president--
6:45 p.m.
Conservative
The Chair Conservative Lee Richardson
Those in favour of allowing Mr. Miller to replace me in the chair for a couple of hours, please raise their hand.
6:45 p.m.
NDP
6:45 p.m.
Conservative
6:45 p.m.
Some hon. members
Oh, oh!
6:45 p.m.
Bloc
Jean-Yves Laforest Bloc Saint-Maurice—Champlain, QC
We are opposed, Mr. Chairman. We voted against this. So, no, we are not in favour.
6:45 p.m.
Conservative
The Chair Conservative Lee Richardson
Okay. There you go.
Monsieur Laforest, before I leave the chair, I'm going to turn the meeting back to you. You are speaking on a question of privilege.
6:45 p.m.
Bloc
Jean-Yves Laforest Bloc Saint-Maurice—Champlain, QC
I am to continue to address the breach of privilege, Mr. Chairman.
I believe that, before leaving the Chair, the Chairman said that he was inviting me to continue to make my comments; that is what I understood. Before we were called to the House for a vote, I was discussing rulings by former Speaker Parent. In fact, with respect to what you were saying earlier, Mr. Chairman, which was that my comments are redundant and repetitive, I invite you to consider the fact that I am currently referring to the Standing Orders of the House. If I am repetitive, it is because the Standing Orders are as well, and I believe they govern our proceedings as a whole. Therefore, I consider your comment to be rather cavalier.
Speaker Parent also emphasized the need for Members to use great care in exercising their right to speak freely in the House.
[...] paramount to our political and parliamentary systems is the principle of freedom of speech, a member's right to stand in this House unhindered to speak his or her mind. However, when debate in the House centres on sensitive issues, as it often does, I would expect that members would always bear in mind the possible effects of their statements and hence be prudent in their tone and choice of words.
Speakers have also stated that although there is a need for Members to express their opinions openly in a direct fashion, it is also important that citizens' reputations are not unfairly attacked. In a ruling on a question of privilege involving an individual who is not a Member of the House, Speaker Fraser expressed concern that the person had been referred to by name: “But we are living in a day when anything said in this place is said right across the country and that is why I have said before, and why I say it again, that care had to be exercised, keeping in mind that the great privilege we do have ought not to be abused”.
That was also quoted in a ruling by Speaker Parent.
In a later ruling, Speaker Fraser observed that the use of suggestive language or innuendo with regard to individuals or an individual's associations with others can provoke an angry response which inevitably leads the House into disorder. Specifically referring to individuals outside the Chamber, he agreed with a suggestion that the House consider restraining itself “in making comments about someone outside this Chamber which would in fact be defamatory under the laws of our county, if made outside the Chamber. As Speaker Milliken noted in 2003: Speakers discourage members of Parliament from using names in speeches if they are speaking ill of some other person because, with parliamentary privilege applying to what they say, anything that is damaging to the reputation or to the individual is then liable to be published with the cover of parliamentary privilege and the person is unable to bring any action in respect of those claims.
Under the sub judice convention [which is a paragraph under the heading “Freedom of Speech”], there are other limitations to the privilege of freedom of speech, most notably the sub judice [“under the consideration of a judge or court of record”] convention.
It is accepted practice that, in the interests of justice and fair play, certain restrictions should be placed on the freedom of Members of Parliament to make reference in the course of debate to matters awaiting judicial decisions, and that such matters should not be the subject of motions or questions in the House. Though loosely defined, the interpretation of this convention is left to the Speaker. The word “convention” is used as no “rule” exists to prevent Parliament from discussing a matter which is sub judice […] The acceptance of a restriction is 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. While certain precedents exist for the guidance of the Chair, no attempt has ever been made to codify the practice in the House of Commons.
The sub judice convention is important in the conduct of business in the House. It protects the rights of interested parties before the courts, and preserves and maintains the separation and mutual respect between the legislature and the judiciary. The convention ensures that a balance is created between the need for a separate, impartial judiciary and free speech. The practice has evolved so that it is the Speaker who decides what jurisdiction the Chair has over matters sub judice. In 1977, the First Report of the Special Committee on the Rights and Immunities of Members recommended that the imposition of the convention should be done with discretion and, when there was any doubt in the mind of the Chair, a presumption should exist in favour of allowing debate and against the application of the convention. Since the presentation of the report, Speakers have followed these guidelines while using discretion.
We move now to the authority of the Speaker.
A further limitation on the freedom of speech of Members is provided by the authority of the Speaker under the Standing Orders to preserve order and decorum, and when necessary, to order a Member to resume his or her seat if engaged in irrelevance or repetition in debate, or to name a Member for disregarding the authority of the Chair and order him or her to withdraw.
Let us now look at waiving the privilege of freedom of speech.
The House determines how it exercises its privileges and if it wants to assert these privileges or not. There have been instances where the House has been asked to waive, in particular, its privilege of freedom of speech to allow its proceedings and transcripts of proceeding to be examined in courts or elsewhere. On two occasions, in 1892 and in 1978, at the request of a judicial body, the House chose not to insist on its privilege of freedom of speech. In the late 1880s, Thomas McGreevy, (Quebec West) was accused of abusing his position by taking bribes and offering to use his influence to help the firm of Larkin, Connolly & Co. secure a dredging contract for the harbour of Quebec City.
Just what kind of member of Parliament was he anyway! We have seen similar things recently, it seems to me.
The matter was referred to the Standing Committee on Privileges and Elections where Mr. McGreevy was asked about his relationship with the firm. The Member refused to answer. Mr. McGreevy was subsequently expelled from the House and charges of conspiracy were contemplated against both Mr. McGreevy and Nicholas Connolly. In order to obtain the warrant to formally charge the two men, the Crown prosecutor filed the transcripts of the committee evidence with the magistrate. The magistrate refused to consider the transcripts on the grounds that the evidence was protected by parliamentary privilege. On a judicial review, the High Court also indicated that the House could choose to waive its privileges. On April 12, 1892, the House of Commons resolved to allow the evidence to go before the magistrate, stipulating that in allowing this limited use, it was not giving up any of its privileges.
In 1978, the Standing Committee on Justice and Legal Affairs held hearings into alleged wrongdoings by members of the RCMP. In the course of its proceedings, certain witnesses requested and were granted permission to testify in camera. Months later, a commission of inquiry was established to investigate the allegations and, in the course of its inquiry, the Commission requested access to the tapes and transcripts of the in camera proceedings. On December 14, 1978, the House of Commons ordered that “the Committee be authorized to make such evidence adduced in camera available to the Commission of Inquiry [...] under such terms as may be established by the committee”. The Committee was concerned about releasing its evidence given that it had assured the witnesses that they would be able to testify in camera. The Committee wrote to each of the witnesses, requesting their permission to allow the Commission to examine their testimony. Upon receipt of the witnesses' permission, the Committee released the transcripts to the Commission, on the condition that they be examined in camera and returned to the Committee forthwith.
In 2004, the House of Commons was again asked to waive its privilege of freedom of speech. A commission of inquiry (know as the Gomery Inquiry after its commissioner, Justice John Gomery) had been established to investigate and report on questions raised in the November 2003 Report of the Auditor General with respect to the sponsorship and advertising activities of the Government of Canada. Questions had arisen as to whether counsel at the commission could cross-examine witnesses on the basis of their statements before the Standing Committee on Public Accounts during its hearings into the Report. The Standing Committee on Public Accounts considered the request and presented a report to the House on the matter on November 5, 2004. The Committee recommended that the House resolve to reaffirm all of its privileges, powers and immunities, as provided by section 18 of the Constitution Act, 1867, section 4 of the Parliament of Canada Act, and Article 9 of the Bill of Rights, 1689, as well as the extension of those privileges to committees of the House and to anyone participating in their proceedings. In addition, the Committee recommended that the question of when privilege may be waived, and whether it may be waived in the case of the Gomery Inquiry, be referred to the Standing Committee on Procedure and House Affairs. In its Fourteenth Report presented to the House and concurred in on November 18, 2004, the Standing Committee on Procedure and House Affairs recommended that the privileges and immunities as set down in the Third Report of the Standing Committee on Public Accounts be reaffirmed and that the proceedings, evidence, submissions and testimony of all persons testifying before the said Committee continue to be protected by the House. In particular, the Committee stated:
Some witnesses who appeared before the Standing Committee on Public Accounts were given written or oral assurances and others could assume that their testimony would be protected by parliamentary privilege. To withdraw such protection after the fact would be unfair to them as individuals. Moreover, as a matter of principle, it would be contrary to the best interests of Parliament and parliamentary rights. Members of Parliament and other persons participating in parliamentary proceedings must be assured that there is complete freedom of speech, so that they are able to be as open and forthright as possible.
In 2007, the House was again asked to waive its privilege of freedom of speech in order to allow the testimony of a witness who had appeared before the Standing Committee on Public Accounts with respect to its inquiry into the administration of the RCMP's pension and insurance plans, to be admitted as evidence in a criminal prosecution. The Committee considered the request and recommended that the House reaffirm the parliamentary privileges and immunities of freedom of speech, which preclude the use of testimony before a parliamentary committee in any other legal proceedings or process, including investigations undertaken for possible criminal prosecution. In addition, the Committee recommended that the House not waive parliamentary privilege in this particular case. The House concurred in the report the same day.
The Parliaments of the United Kingdom, Australia and New Zealand have each established committees to consider whether or not, and to what extent, a legislature could waive the protections of Article 9 of the Bill of Rights, 1689. All three committees concluded that, absent clear authority, the privileges could not or should not under any circumstances be waived: The provisions of Article 9 are a matter of public importance and were enacted for the protection of the public interest and, absent statutory amendment, cannot be waived; To allow waiver by a simple majority, the question could be open to abuse by a majority at the expense of a minority or a single Member; A waiver could stifle free speech since at the time of testifying, the person will not know whether at some future date the protection of the privileges of the House will not be withdrawn; A waiver could lead to further and more frequent requests for waivers; and The provisions of Article 9 do not only constitutionally grant the right of free speech to the House but also constitutionally restrict the jurisdiction of courts and other places. It is not certain that the House alone, by waiving its privileges, can enlarge the constitutionally circumscribed jurisdiction of the courts.
Mr. Chairman, I have mentioned these various points in support of my question of privilege. Indeed, I believe that my freedom of speech has been infringed. I stated that at the very beginning of my comments. Having read all of the observations made in this document, which is like the bible for parliamentary institutions, the federal government, the federal Parliament, committees and the House, I consider that my question of privilege is perfectly relevant and that my right to freedom of speech has been infringed. The fact is that, a little earlier, the Chairman called the vote on a motion which had been introduced, without recognizing our privilege to express an opinion. He prevented both myself and Mr. Guimond from expressing our views. It is for that reason, Mr. Chairman, that I believe my privileges have been breached, and I would ask that you rule on this issue because such a flagrant deviation from the democratic process is completely unacceptable.
Thank you.
7 p.m.
Conservative
The Acting Chair Conservative Larry Miller
Mr. Laforest, I am going to rule on it. I've only been here for 15 minutes and I think you seem to be the only one who has been speaking, so I certainly don't agree that your freedom of speech has been impeded in any way while I've been here or before that.
7 p.m.
An hon. member
[Inaudible--Editor]