moved:
That, in the opinion of this House, members of the House of Commons and senators should be treated equally before the law and therefore the parliamentary privilege that allows members of the House of Commons and senators to refuse to give evidence in a Canadian courts of law should be abolished.
Mr. Speaker, I thank my colleague, the member for Regina—Qu'Appelle, for seconding this motion.
I am pleased to speak on this motion today, particularly since I drafted it two years ago as a result of some unfortunate circumstances in my home province of Saskatchewan but which could continue to have some importance as efforts to discover the extent of government's involvement in the APEC issue unfold.
MPs and senators do not have to obey a subpoena to testify in court, ever. I think that is wrong, as do many other Canadians. So I moved Motion No. 53 to remove that absolute privilege. I would like to explain why.
Motion No. 53 seeks to eliminate the privilege of members of the House of Commons and senators to evade an obligation to testify before a court or civil proceeding. It is a privilege I am not sure many new MPs realize they have. The principle behind the privilege not to attend a court of law and give evidence is that attendance at the House of Commons or the Senate is the first call on a member's or senator's time. There are practical reasons for this principle and historic reasons for the rule being written in such an absolute fashion.
But there is a competing principle that parliamentarians should not be above the law. We need to reconsider how we reconcile these two principles and allow for some time in MPs' schedules to show up in court if they are needed.
In October 1996 when I drafted this motion we were in the middle of a series of trials in Saskatchewan regarding allegations of fraud, theft of public funds and breach of public trust. The charges dated back to the period from 1986 to 1991 and involved members of a previous provincial government, both cabinet members and members of the legislative assembly.
In January 1995, 11 current and former MLAs, including former deputy premier and now Saskatchewan Senator Eric Berntson, were trying to evade testifying in a preliminary inquiry into charges against former PC caucus communications director John Scraba. The Court of Queen's Bench ruled that they had to testify.
By October 1996 one staffer and twelve former Conservative MLAs had been charged. By then five had been convicted, three were acquitted and one committed suicide. At that time former Lloydminister MLA Michael Hopfner was on trial. He called Senator Berntson as a witness. A subpoena was issued but police could not serve it on the senator on the Parliament Hill precincts because of his parliamentary privilege. The senator in any event was not required as a matter of parliamentary privilege to answer or to even acknowledge the subpoena.
Senator Berntson would not discuss his reasons for this action with the media, but the Senate's legal counsel, in a letter to the senator's personal lawyer Clyne Harradance, apparently confirmed that Senator Berntson was entitled to refuse the subpoena all together as part of his parliamentary privileges and immunities.
I will go into the specifics of the privilege issue shortly. To continue the story, the issue was raised at that time by several members of parliament, myself included. It was the subject of media stories and several columns and editorials. There was a public outcry against the way the senator seemed to be hiding behind his parliamentary privilege. There was even a suggestion in some quarters that by appointing him to the senate, the former prime minister was deliberately availing Senator Berntson of this potential cover.
Three weeks later the senator wrote an open letter claiming he was not trying to evade testifying by invoking his Senate privileges and he eventually took the stand. Mr. Hopfner was convicted and sentenced to 18 months in jail. Three months later, on January 24, 1997, Senator Berntson was charged with breach of trust and two counts of fraud. Five other individuals were also charged that day, bringing the total number of individuals charged to some 20 people. Senator Berntson resigned the next day as deputy leader of the opposition in the Senate and also from the Tory caucus pending both the preliminary hearing held this time last year and his trial before a judge which it was recently announced will commence January 11, 1999.
Senators and members of parliament do not have the privilege to avoid arrest or even to escape criminal charges but they may not be compelled to appear in court as witnesses or to serve on a jury, according to Beauchesne's sixth edition, citations 89 and 90. Citation 89 refers to the privilege I would like to abolish, namely that no member may be compelled to appear in court as a witness.
Beauchesne's sixth edition was published in 1989. Citation 91 states: “Neither the House nor its members have ever made any specific claims to freedom from service of process within the precincts”. No sooner was it published than the situation changed. In March 1989 Edmonton MP David Kilgour, now a Liberal cabinet minister, was served with a subpoena in his constituency office to testify—