Mr. Speaker, it is an interesting debate and I am glad to be involved in it. I have a deep interest in the issue having been served with several documents to go to court. It kind of comes home when one does these things.
I want to read the motion because I am actually that close to where the hon. member is from with just a minor deviation from it:
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 court of law should be abolished.
In the recent Sun column of November 6, 1998 titled “Lawmakers above the law”, Robert Fife comments on this motion and points to two cases that prompted the sponsor to introduce this motion. He cited the case when in 1989 NDP MP Dave Barrett claimed parliamentary immunity to avoid a summons in a case involving non-payment of his leadership debts and when Conservative Senator Eric Bernston used the privilege to excuse himself from answering a subpoena in a trial involving a fraud ring that operated in the Tory caucus of former Saskatchewan Premier Grant Devine.
While Motion No. 53 only addresses one privilege, there are actually three privileges dealing with the attendance of members and the potentiality for a conflict between duty to parliament and duty to obey a court order. These three privileges are freedom from arrest, freedom from giving evidence and freedom from serving on a jury.
It should be noted that these privileges do not involve cases of criminal matters or breaches of provincial statutes that involve the summary jurisdiction of the Criminal Code. They only apply to civil cases as was earlier said.
Historically, and according to Joseph Maingot's Parliamentary Privilege in Canada “the first privilege accorded to parliamentarians in England was an assurance that the barons and other lords were not impeded on their way to the council with the monarch because of civil process”. We have run out of barons and lords in this House of Commons to a large extent, except for an odd few in the cabinet over there. “The concern was to secure the attendance of members, and it remains to this day the principal reason for the privilege of freedom from arrest, from attending as a witness in a court or elsewhere than parliament, and from serving on a jury. This is because the most important body in the country, the Parliament of Canada, has first call on the services of its members and parliament will not tolerate impediments to members who are on their way to attend the sittings”.
It seems reasonable that a member could ignore an order to appear before court if called to attend a vote in the House if that vote was considered important. If a member was to be charged with contempt of court in such a case, it seems reasonable that the House should protect that member. In such a conflict, the duty to parliament clearly outweighs the duty to the courts.
The potential for the abuse of these privileges seems to arise out of the automatic nature of the immunity and when a member uses the privilege for personal advantage. This automatic immunity should be abolished. At the same time, the House should maintain first call on the services of its members and should be able to exercise authority in extraordinary cases.
I want to talk a bit about freedom from arrest. Joseph Maingot's Parliamentary Privilege in Canada sums up the privilege of freedom from arrest as a protection from arrest for any civil process, such as failing to obey an order or judgment of the court in a civil matter, including civil contempt. A member of parliament does not have immunity from arrest in criminal matters and may be imprisoned for a criminal or quasi-criminal offence, including criminal contempt of court.
On the other hand, page 158 suggests that the House has the authority to intervene if it felt the circumstances were extraordinary. It says:
While neither House of Parliament has waived or would likely waive its right to intervene if and when Members are convicted and committed for contempt (of court), and thus could in theory consider each case on its merits, it is unlikely that either House of Parliament would take any matter into consideration relating to the civil process unless the circumstances were extraordinary. It is also unlikely that Parliament would actually interfere in a criminal arrest of a Member, including criminal contempt of court. While cases may arise, the position of the House of Commons is that the House will at least investigate every such matter brought to its attention in order to be assured that the privileges of Parliament are not affected.
Therefore if the House has the authority to intervene in extraordinary cases to protect its privileges, then members do not need an automatic privilege of freedom from arrest. This would be consistent with most other cases involving members' privileges.
When members feel that their privileges have been breached, they first raise it with the Speaker who determines whether or not there is a prima facie case of privilege. If a member's question of privilege is prima facie, then the House considers the case and makes a decision.
What about the privilege of not being required to attend as a witness? Here we get into the specific privilege referred to in Motion No. 53. Once again the problem is not with the idea that the House has first call on the services of its members, but the automatic immunity granted to a member. As it stands now, the House would likely uphold a member's privilege of freedom from giving evidence without question. The House should instead consider the circumstances and decide based on the merits of the case.
If we abolish a member's individual privilege of freedom from giving evidence, to be consistent we should probably ensure that the House maintains the authority to intervene in extraordinary cases. That should prevent individual members from abusing the privilege but at the same time preserve the right of the House to first call on the services of its members.
What about privilege of exemption from jury service? Freedom of jury duty is in keeping with the principle of the House having first call on the services of its members. While this exemption from the law is less offensive than the others, it still puts members above the law compared to other citizens.
To be consistent, we could apply the same standards to this freedom as the other freedoms mentioned beforehand. The right of immunity should be taken away from individual members and placed in the hands of the House itself.
These are things the Standing Committee on Procedure and House Affairs should probably look at.
The privilege of freedom of speech is another issue. The privilege of freedom of speech is in a totally different category and is probably one of the most essential freedoms enjoyed by members. According to Maingot the privilege of freedom of speech is not so much intended to protect the members against prosecution for their own individual advantages, but to support the rights of the people by enabling their representatives to execute functions of their office without fear of either civil or criminal prosecutions.
According to Bourinot, freedom of speech is one of the first and greatest of a member's privileges. He says that one of the advantages of legislative bodies is the right of exposing and denouncing abuses by means of free speech.
Often in debate and question period cabinet ministers, including the Prime Minister, will accuse the opposition of abusing their freedom of speech. It happens here once in a while. These comments are not only misguided and inappropriate but they strike at the centre of the problems facing this government. The government tolerates free speech as long as it is not being criticized by it. Freedom exercised in this way is viewed by the government as an abuse.
On page 25 of Joseph Maingot's book on parliamentary privilege he talks about the origins of freedom of speech:
Until the 19th century, in the U.K. reporting what was said in parliament was treated as contempt; until then, members required this privilege only for the purpose of avoiding prosecution by the king.
As members were once afraid of the wrath of the king, today backbench members of parliament bear the wrath of the Prime Minister who sometimes thinks he is a king. The Prime Minister cannot prosecute members but he does have ways of punishing and controlling them. It is unfortunate that we do not have a privilege protecting us from the Prime Minister.
In conclusion, in regard to privileges relating to the services of members to the House, members for the most part should be treated like any other citizen before the law. At the same time parliament should maintain its right to first call on the services of its members.
Therefore, any privilege applied should not be automatic, with the exception of freedom of speech, but should be subject to the judgment and decision of the House.
With this modification, members would not be above the law unless the majority of lawmakers felt it necessary to resolve a legitimate conflict regarding the public demand on the services of members of parliament.