Debates of March 13th, 1996

Privilege

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Mr. Speaker, before making my comment, I would like to bring to the attention of the Chair that what the Liberals have just done to gag us, is intolerable, considering that the Speaker told us right at the beginning of the debate to be quiet, to listen calmly, that everyone would have the right to speak, that everyone could speak on the matter. Today, what does the government do? On the same day, it wants to gag us on a most vital matter. If it is that important, it must be discussed.

Second, in response to the last speaker, who says there is at least one Liberal he agrees with. So far, dialogue has meant, for the Liberals as well as for the Reformers, a sort of Siamese twin dialogue between two bodies that share one head. They agree on everything, and do you know why, because they are making political capital at the expense of Quebecers, one member in particular; they are judging the entire sovereignist movement. They have never been able to stand the fact that we have been here since October defending the interests of Quebecers. They have never been able to stand our coming here to defend the sovereignist movement, to defend what we Quebecers have wanted for a long time. That is where the problem lies.

Now, to get to my question.

[Dan McTeague, Liberal, Ontario, ON]

The question.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Hold on, I am getting to it.

[Dan McTeague, Liberal, Ontario, ON]

What is the question?

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

I must say what I have to say, despite your gag. Gagging us is what you are doing with your motions.

Now, getting to my question. I invite the hon. member to quote one place in hon. member for Charlesbourg's communiqué where there is a call for violence, for public disorder, where there is any encouragement, recommendation, advising of members of the Armed Forces to carry out any prohibited activity. Let him respond to this question.

[Jim Abbott, Reform, Kootenay East, BC]

Mr. Speaker, this is really a kind of star spangled night. Not only can I agree with the Liberal member, I can agree with the member from the Bloc, if in fact he is correct which my colleagues tell me he is, that the Speaker has said that we were going to have the opportunity to have freedom of speech in this House of Commons for a change, unlike what the Liberals usually do to us and have actually gone back on their word. So it is really no surprise to be able to have that agreement.

I will quote from the communiqué. The Quebec military will "respect the people's decision and will transfer their loyalty to the new country whose security they will ensure". I repeat, transfer their loyalty. Those are the words from the communiqué. Loyalty is defined as allegiance, faithfulness, devotion, fidelity, attachment and patriotism. On the other hand, sedition is defined as revolt, rebellion, revolution, insurrection, mutiny, unrest, riot, uprising, defiance and disobedience. I suggest that on the words of defiance and disobedience we have a case made for mutiny and sedition.

[Nick Discepola, Liberal, Parliamentary Secretary to Solicitor General of Canada]

Mr. Speaker, as important as this debate is, I find it deteriorating to some extent. We are deviating totally from the motion. We in this House seem to be already prejudging an act that one of our colleagues made.

The member for Kootenay East has asked several times why this government has not acted before. As I only have a few seconds, I would like to ask the member for Kootenay East a question his colleague from Vegreville tried asking. I refer to page 29, citation 115 of Beauchesne. Since this question and debate has emanated from a question of privilege, citation 115 clearly states: "A question of privilege must be brought to the attention of the House at the first possible opportunity. Even a gap of a few days may invalidate the claim for precedence in the House".

As much respect as I have for the Chair for having ruled on that, why is-

[The Deputy Speaker]

Order. The hon. member for Kootenay East.

[Jim Abbott, Reform, Kootenay East, BC]

Mr. Speaker, the answer lies in the hon. member's question. The Speaker of the House said that this is such a serious issue that the delay is a moot point. That is a ruling of the Speaker and as such it becomes a precedent in this House. I suggest the member be careful that he not question the rulings of the Chair.

[Ted McWhinney, Liberal, Parliamentary Secretary to Minister of Fisheries and Oceans]

Mr. Speaker, in intervening in this debate I must record that I at times felt I was attending one of Verdi's latter day operas, high opera. Marked sometimes with opera bouffe I find to some extent the levity that was introduced in the matter concerning the potential loss of privileges of a member of Parliament rather disquieting. I take it that it relates to the intensity and the passion of the debate.

I will focus on the roles and missions of Parliament today, which I believe is the issue we should be debating. This includes what the House is competent to do and what it is not competent to do.

The alleged remarks of the hon. member were not made in Parliament, nor were they made by legal definition within the rayon of Parliament which by extension has been known to include government departments and the like. They would probably not be covered by an argument of parliamentary privilege. To express my own opinion, they would not be covered by parliamentary privilege if the member was prosecuted in the ordinary courts.

One of the issues here concerns whether this is a matter for the ordinary courts. In the case of a member of Parliament it would be the civil courts. In the case of members of the armed forces, with whom it is alleged there was some species of collusion, it would be the military courts. I will return to that in a moment.

There has been a great deal of misunderstanding based perhaps on a too rigid and unimaginative reading of old precedents concerning the role of Parliament today. The phrase high court of Parliament has been used but without an understanding of its historical origins or the need to interpret it in the light of contemporary developments in Parliament and in other institutions that borrowed from the same British parliamentary model we borrowed from.

There was an extensive review of Parliament's criminal powers at the time of the impeachment issue in the United States, the so-called Watergate scandal. I was consulted in a pre-parliamentary capacity by the Senate Committee on Campaign Activities, the Watergate committee. I gave opinions which were published at the time. The great advantage of the Watergate scandal for our purposes is the opportunity for discussion of the inherited criminal powers of Parliament which the United States received as part of its general reception of British law.

The basic point revolves around this issue of the impeachment power which was written into the United States' constitution. There is no doubt that in medieval times these were opportunities for political fishing expeditions. There was no real pretence of a criminal offence or anything else involved. It was a judgment exercised by Parliament on the king's ministers in which the subjective evaluation of their motives in exercising their powers was at the core of the decision.

I mention this simply to say that the vestigial powers of Parliament as the high court of Parliament are essentially limited today by the evolution of the precedents and also by Parliament's own deliberate legislative act of passing legislation it is limited to the cluster of offences grouped around impeachment. There is a reason for this. It is the tyranny of the majority that caused successive Parliaments deliberately to limit by law the power to expel members of Parliament.

There is legislation. It sets it out. It sets out the necessity for convictions before the ordinary civil courts for specified offences,

but limited offences, what in contemporary terms we could still call the felonies as they were understood under the common law.

The correct procedure for a legislative body today would see the power of expulsion being limited to acting on a conviction made by the regular civil courts for a specified offence meeting the test of a felony as it existed under the old common law. This has been done simply to discipline the otherwise unregulated use of a majority's power to expel people it did not like. We saw examples of this in continental Europe between the two wars in the last days of the Weimar Republic when it was used disgracefully.

Impeachment as such is not available in the case of a member not being a government minister. Even if we go back to that, it is limited to officers of the crown. I was asked by a senator the other day, I presume not frivolously, whether it still availed. The answer is yes but it is limited to government ministers. In the British Parliament it has not been used since 1840 but is still there.

As to other matters, they are matters for the ordinary courts, but Parliament can act and properly will act if so inclined on the decisions of the civil courts. If a verdict of guilty were to be returned in such a process, Parliament could be seized and exercise its powers, including the powers to expel.

The problem that one sees in the present case is simply that one understands the matters were taken up with crown counsel. It would surprise me if they have not been because I received letters from constituents asking me if there was a prima facie case. I simply said consult or refer to crown counsel. They were referred to crown counsel and apparently crown counsel have decided not to pursue the matter.

If that is so, and it is beyond correction by senior crown counsel, then it seems to me Parliament cannot retry the matter. It is not simply a matter of the limits of competence of members of Parliament to decide difficult issues of the law of evidence and the like. It is a matter that the executive power has been used and exercised to the full, and that is the end of the matter.

I support the reference of this issue to the committee on procedure and House affairs mainly because I believe it will avoid further debates of this sort, which sometimes seem to be without any clear direction. A restatement by the committee of Parliament's power to discipline its own members stated clearly and concisely would be a help to this House.

I hope the committee will not assume it is its function to act as a court of law. I do not think it would do the job very effectively. If there are still remedies before the civil courts then it would be possible for opposition members to utilize those remedies and take the steps themselves. As far as Parliament is concerned, it is my

own opinion that we should obtain legal opinion at defining the constitutional role of Parliament today.

My personal opinion, as expressed in the past, is that Parliament's criminal law powers are limited to impeachment, narrowly construed. In the case of the attempted Nixon impeachment I came to the conclusion that judgment on political acts was no longer part of the impeachment power. These things became moot with the decision of the president to resign and the matter never proceeded.

There are advantages in going to the committee on procedure and House affairs. It may be that the committee, in spite of the opinions I have expressed, will decide that Parliament should resume criminal law powers, in effect control of members that have lapsed effectively with the transfer of erstwhile powers of Parliament to the ordinary courts.

In that case, I would be prepared to read the report and discuss it on its merits. But under the present circumstances I think it has been beyond Parliament's competence to discuss the merits of the alleged act. I think it is not a proper use of our functions. I therefore would welcome constitutional advice, a ruling from the committee on procedure and House affairs.

[Jean H. Leroux, Bloc, Shefford, QC]

Mr. Speaker, I listened very carefully to our honourable colleague, who gave us an interesting and very different viewpoint. I think, in the present matter, we have to ask ourselves what rights members have. A member should be entitled to speak and to act. Time is also a consideration.

I think what is happening is that the rest of Canada did not understand what was going on in Quebec at the time: the members of the Bloc Quebecois elected to this House are getting ready for the big day. The big day is the day Quebec becomes sovereign, fully sovereign. We are getting ready. We are involved in committees of the House of Commons of Canada. We are learning about defence, a federal jurisdiction at the moment. We are learning.

I remember, when I was on the joint committee on national defence, going to Edmonton when we were touring Canada to hear witnesses. I asked three eminent professors, experts in the field of defence, Canadian anglophones: "Do you think a sovereign Quebec should have its own army?" Two of the three agreed that Quebec should have its own army. The other said it depended. According to him, there could be agreements between Canada and Quebec and perhaps there could be a shared army.

I would like to ask my eminent colleague whether he thought that the member for Charlesbourg said things in his communiqué that were contrary to what one ought to expect?

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I will limit my answer to Parliament's jurisdiction. I said that the statements made in the member's communiqué had been made outside of the House, and therefore were not covered by parliamentary privilege. He can be prosecuted in civil court.

I only said that it had nothing to do with Parliament. In other words, we are limited to the old impeachment process, which is interpreted in a very restrictive manner nowadays.

The merits of his conversation, of his discourse, have nothing to do with this House today. He is subject to civil court. It is up to him to invoke his parliamentary privilege. I for one believe that his parliamentary privilege does not apply when he is outside of the House or of the parliamentary precinct. This is why I said that this debate, by emphasizing what he said, is going beyond the mandate and powers of Parliament.

[Jim Hart, Reform, Okanagan—Similkameen—Merritt, BC]

Mr. Speaker, I am listening very carefully to the debate and I appreciate very much the hon. member's intervention this afternoon.

On the question of whether or not it is in the purview of Parliament to deal with this, I would point out that the communiqué was written on the letterhead of the official opposition. That makes it very much an issue that this Parliament should deal with.

The Speaker of the House ruled yesterday that it, in fact, does. I would like to point out a couple of citations that may help the member. I would like to say first that Parliament does whatever it wants in the context of contempt of Parliament.

Citation 28 of Beauchesne's sixth edition states:

Parliament is a court with respect to its own privileges and dignity and the privileges of its Members.

Citation 49 states:

It is not necessary for the courts to come to a decision before the House acts. In 1891 charges were laid in the House against Thomas McGreevy relating to scandals in the Public Works Department. The Committee on Privileges and Elections examined the evidence and concluded that the charges were amply proven-The House judged Mr. McGreevy to be guilty of contempt of the House as well as certain of the charges and ordered his expulsion.

This House ordered his expulsion.

There are other references to support the right of Parliament to charge a member with whatever it wants. I would refer the House

to Joseph Maingot's "Parliamentary Privilege in Canada" at page 192, which states:

While privilege may be codified, contempt may not-there is no closed list of classes of offences punishable as a contempt of Parliament.

I would refer the House to the Speaker's ruling of October 29, 1980, which stated:

The dimensions of contempt of Parliament is such that the House will not be constrained in finding a breach of privilege of its Members or of the House. This is precisely the reason that, while our privileges are defined, contempt of the House has no limits.

I hope that helps the hon. member in his deliberations this afternoon.

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I thank the hon. member for his question and also for the dispassionate way in which he presented it in a debate which has become too heated on all sides of the House. I will try to respond in the same spirit.

I agree, if the facts which the hon. member cites are correct, that if letterhead was used for a non-parliamentary purpose, that there is a breach of the privileges of the House. However, it probably would come within the nature of trivial abuse; no more serious than perhaps the way in which many members misuse parliamentary letterhead. It would not bring in the gravamen of the offence being alleged against the hon. member.

I have noted the precedent of 1891. I would tell the House that it would meet the classic test of something committed within the rayon of Parliament in the capacity of the minister in the public works department. It simply brings back the issue that in dealing with old precedents they have to be re-interpreted creatively in the light of changed circumstances and the evolution of the concepts of what Parliament can and should do to its members, including opposition members. The precedents have to be interpreted in the light of their creative growth. The trend is clearly to restrict parliamentary powers, not to extend them.

The hon. member said, and I hope he will not mind my correcting him, that Parliament can do whatever it wants. I think the best answer to that is the answer which Chief Justice Coke gave to King James I, that one is under God and the law. One is bound by the constitutional law of Parliament. That is what we are trying to decide today. That is what this debate is all about.

Frankly, the committee on procedure and House affairs would do us a service if it set out coolly, clearly and without passion the limits of parliamentary power today. If it thinks those powers should be restated, let it indicate, on the basis of expert opinion, how it thinks that should be done. However, it would commit a grave error if it attempted to set itself up as a court of law hearing the substance of the alleged offence. That would be beyond the precedents as they now exist, properly interpreted.

[Pierre De Savoye, Bloc, Portneuf, QC]

Mr. Speaker, I would like my hon. colleague across the way to comment on what I am going to say. I think that the problem we are facing because of the third party has to do with our freedom of speech.

I will come right out and tell you that what my colleague from Charlesbourg did in writing, many of us in the Bloc Quebecois have done verbally. Some of those soldiers questioned me on the draft bill introduced by Mr. Parizeau's government and I told them something similar to what the hon. member for Charlesbourg wrote in his communiqué.

Preventing me from doing that would amount to depriving me of my freedom of speech. Can this freedom of speech be tested before a committee of the House or does it go beyond the powers of this House right up to the constitutional level? I would like to hear what our hon. colleague has to say about this.

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I think that focusing on freedom of speech is leading the debate away from the issue of Parliament's constitutional law. For example, I have very often said things that my audience was not too pleased to hear, but I understand that I must comply with civil law when I make remarks or comments.

Outside this House, members become subject to civil law and they become accountable. Up until now, no attempt had been made to sue this member for what he said outside the House. That is what we are dealing with here. As far as Parliament is concerned, except in circumstances which are so rare now, given how the constitutional law of Parliament has evolved, there is no substantial issue for Parliament to decide. In my opinion, we are limited to the scope of our privileges, as it stands today.

[Ken Epp, Reform, Elk Island, AB]

Mr. Speaker, I have many questions but I will restrict myself to one, which the member is eminently qualified to answer since he is a constitutional expert.

I believe the role of Parliament is to make laws which the courts subsequently enforce.

Our original motion stated we should include the kind of actions that were undertaken by the member as being under the definition of seditious. Members on the other side as well as the members of the official opposition missed that point. What we want to do is clearly define sedition and counselling sedition.

Talk about losing your freedom of speech, it was taken away from us by the Liberal amendment which deleted every word before the word "that" and every word after the word "that". I think that is the essence. Can we in Parliament pass such a law?

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Mr. Speaker, the hon. member can be assured that Parliament has the competence to enact whatever law it wishes subject only to the limits imposed by the Constitution and the charter of rights.

We were discussing the roles and missions of Parliament. The correct arena for the honourable member would be to take up with the House justice committee the question of possible amendments to the Criminal Code in terms of the offence of sedition. That would be a correct route to take and to present reasoned amendments.

It is not for Parliament itself to go backwards to the 17th century and try to set up a parallel system of criminal law covering matters that are properly within the ambit of the Criminal Code.

The member should go to the justice committee if he has views on this and present a project for amendment and see what happens. This is not the correct arena.

[Suzanne Tremblay, Bloc, Rimouski—Témiscouata, QC]

Mr. Speaker, during my 35 year career at university, I have always been able to recognize intelligence.

[An hon. member]

Did it often happen?

[Suzanne Tremblay, Bloc, Rimouski—Témiscouata, QC]

It is very rare, but I would like to commend the member for Vancouver Quadra for his remarkable performance in this House.

[Some hon. members]

Hear, hear.

[Suzanne Tremblay, Bloc, Rimouski—Témiscouata, QC]

The member for Vancouver Quadra understands the real problem and its significance. He first said that, given the fact that our colleague issued a communiqué on October 26 outside Parliament, outside the House, he was no longer entitled to his privileges, and that this matter must therefore settled in court.

For the information of the member for Vancouver Quadra, who may not have followed all the news-and I am not criticizing him for that-the matter was brought before the courts twice, once in Quebec and once in Ontario, in proceedings against our colleague from Charlesbourg. In both cases, the action was dismissed. In one case, the judge even said that he considered our colleague's communiqué as a job offer. The issue, therefore, is clear. Taking this to a civil court of law would not be very successful.

If civil proceedings do not work, and if the House is not concerned-since he said in his last answer to our Reform Party colleague whose riding I forgot that the House of Commons is the wrong place to debate the question, having even told him to go to the justice committee or introduce a bill-I hope the member for Vancouver Quadra will not disappoint me tomorrow-since the government has announced that it would gag the House-and will in fact oppose the Reform Party's motion and, consequently, of course, also oppose his party's amendment, which was cooked up on the sly with the Reform Party's complicity. It is not something to brag about, but I knew he was intelligent enough to avoid voting on this amendment.

Now, I think it is also important to realize that the Reform Party's motion is flawed. We were just told that the real intent of the motion was to give a new definition of the word "sedition". As I had some time this afternoon in the House, listening to all the high flown rhetoric, I checked in the dictionaries we have here.

First, I discovered there were two meanings to the word "sedition". There is plain sedition and military sedition. Those are two very different things.

[René Laurin, Bloc, Joliette, QC]

And that of the Reform Party.

[Jean-Marc Jacob, Bloc, Charlesbourg, QC]

And that of the Reform Party.