Mr. Speaker, I am pleased to have the opportunity to debate the motion of the hon. member for Regina—Lumsden—Lake Centre.
Motion No. 53 proposes to abolish a parliamentary privilege that permits members of the House and the other place to be exempted from appearing in a court of law as witnesses, and the member rightly stressed that. It is appearance as witnesses that we are discussing.
I believe this motion should not be supported. The concept of privilege has a long history in our system of parliamentary government. It was developed during the 14th and 15th centuries, as the member mentioned, to ensure that the authority and liberties of the British House of Commons should not be challenged by the monarch.
I point out that Canada is one of several countries that have developed parliamentary privileges. They are also available in parliaments in jurisdictions abroad. Both the United Kingdom and Australia recognize the priority of the attendance of members in their houses of parliament over their appearance before a court.
Exempting members from appearing in court as witnesses is closely related to the privileges that exempt members from jury duty and the freedom from arrest and molestation. I suggest to my hon. colleagues that it continues to be needed today.
First, this basic principle for the good functioning of the government in Canada is recognized in the Constitution Act of 1867, but also in section 4 of the Parliament of Canada Act. The Constitution Act provides that: “The privileges, immunities and powers to be held, enjoyed and exercised by the Senate and by the House of Commons and by the members thereof respectively shall be such as are from time to time defined by the Act of Parliament of Canada”.
The Parliament of Canada Act recognizes these privileges as: “Part of the general and public law of Canada and they shall, in all courts in Canada and by and before all judges, be taken notice of judicially”.
Privilege is based on the pre-eminent claim of the House to the attendance and service of its members. That means members themselves do not have privilege. Only the House of Commons has privilege. Members are covered by this privilege insofar as they are serving as members of this House.
While privilege is intended to ensure that members are not obstructed in the performance of their duties, it does have limitations on its use. It is not intended to be used to impede the course of justice. It does not protect members from criminal prosecution. For example, it does not stop members of parliament from being sued.
In other words, privilege ensures that this House will function effectively. Members must be able to carry out their responsibilities and duties as legislators of public policy and in the service of all Canadians. As noted by Maingot, “parliament has the paramount right to the attendance and service of its members”.
The work of this House depends on the input of all members from all regions of this country. I would suggest that their participation is even more important given the fact that we now have five official parties comprising the legislature in the House of Commons.
Second, parliamentary privilege supports the House by protecting individual members from frivolous or vexatious attacks which would keep them from their duties.
As the hon. member may know, a former leader of his party used this protection while serving as a member of this House. The motion before us, in other words, is inconsistent with the action of a former leader of the member's party.
We need to be vigilant in preserving parliamentary privilege against frivolous attack.
Third, the member's motion responds to a problem that does not exist. I am not aware of any public criticism in this area, nor am I aware of any significant abuses that need to be addressed. In other words, I do not understand what the point of this motion really is.
Indeed, I believe Canadians would agree that this privilege is required so that members may carry on their legislative and House duties. It is a necessary privilege that members not be impeded in their work in the service of their electors.
While members may claim this privilege, they must also be guided by their consciences. Given these considerations in the modern context, members rarely invoke their privilege to be exempt from appearing as a witness. However, as noted in Bourinot's Parliamentary Procedure and Practice , the Commons generally gives leave of absence to members to attend elsewhere as witnesses when it is shown that the public interest would not suffer by their absence.
In conclusion, it is for these reasons that Motion No. 53 as proposed by the hon. member for Regina—Lumsden—Lake Centre should not be supported. If there are specific matters of privilege that the member wishes to examine, I would suggest that this is a matter that might more properly be considered by the Standing Committee on Procedure and House Affairs of which my hon. colleague is a member and of which I am the chair.
I hope that he and I can continue to work together on that committee to further strengthen this parliament.