Mr. Speaker, I am pleased to speak on Motion M-53, introduced by our colleague for Regina—Lumsden—Lake Centre, on abolition of the parliamentary privilege that allows members of the House of Commons to refuse to give evidence in a Canadian court of law.
I would like to point out first of all that the motion being addressed by this debate raises several fundamental principles of parliamentary practice: the separation of powers and the primacy of parliament over legal institutions, as well as the matter of parliamentary privilege.
I am one of those who feel that the workings of parliament and the work of legislating are, and must remain, the principal duty and foremost obligation of a member of parliament. Moreover, the primacy of parliament over the judiciary has been guaranteed, since the earliest days of parliamentarism, in order to ensure that the business of the House runs smoothly. The sovereign did not tolerate that members could be prevented from assembling in parliament.
A summons to testify in court did not constitute for the crown a valid reason for preventing a parliamentarian from taking part in a sitting. This underlying principle and the ensuing parliamentary privilege have down come through the centuries and are still valid today. I will quote from Joseph Maingot, in his Parliamentary Privilege in Canada , at page 161:
Since Parliament has the paramount right to the attendance and service of its Members, any call for the Member to attend elsewhere while the House is in session is not in law a call that need be answered.
The aim of this privilege is to enable us parliamentarians not to arbitrarily escape the administration of justice, but to properly acquit ourselves of our duties, with no outside obstruction or interference of any sort. To put an end to this would mean that we recognize the primacy of the judiciary over the legislative, whereas the judiciary arises from the legislative power, which precedes it.
In addition, Standing Order 15 on member attendance, provides, and I quote:
Every Member, being cognizant of the provisions of the Parliament of Canada Act , is bound to attend the sittings of the House, unless otherwise occupied with parliamentary activities and functions or on public or official business.
Clearly, our presence in Parliament is not only desirable but required. Moreover, the obligation of testifying at a trial is not specifically included in the list of valid reasons for not attending sessions of the House. This parliamentary privilege, based on a long tradition, and on totally defensible principles and arguments, is embodied in the letter of our Standing Orders.
I have no intention here of discrediting or minimizing the importance of the role of Canadian courts. Our legal institutions are cited as examples worldwide. They ensure compliance with the laws passed by Parliament. Those who have committed offences or crimes must be brought before the courts and punished, as appropriate.
Should members by chance witness illegal acts, it is appropriate for them to participate in the operation of the judicial system by appearing, as required and when circumstances permit, as witnesses. But we must not for all that forget that our prime obligation is to perform the functions for which we were elected.
Appearing as a witness when summoned is part of everyone's civic duty. The parliamentary privilege the member for Regina—Lumsden—Lake Centre is proposing to abolish does not, however, exempt us as parliamentarians from this civic duty. Privilege simply means that, in the event of conflict between our civic duty to appear as a witness and our parliamentary duties, the latter should take precedence.
The second point I wish to raise concerns parliamentary privilege specifically.
All the protections that we enjoy in this House and that we inherited in 1868 when the Parliament of Canada declared that it was adopting the privileges of the House of Commons in London come to us through the long and rich parliamentary tradition of Britain.
Over time, there has been a slow but inexorable erosion of parliamentary privileges. This phenomenon can certainly be attributed in part to the increasing concentration of powers in the executive branch to the detriment of the legislative branch. But we have also seen parliament become increasingly reluctant or unable to defend its privileges effectively.
Decisions in recent years has been particularly telling. I need only point to the way the infamous flag affair was dealt with by the Standing Committee on Procedure and House Affairs. It would therefore be improper for this House to knowingly and willingly help to undermine the privileges it enjoys.
Before I go further, I believe it is appropriate to agree on the meaning of parliamentary privilege. I will cite the 6th edition of Beauchesne's Parliamentary Rules and Forms , which defines it as follows at page 11, and I quote:
—the sum of the peculiar rights enjoyed by each House collectively as a constituent art of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions—
Motion No. M-53, in suggesting equality between members and senators and our fellow citizens in the obligation to respond to a summons to appear as a witness, indicates to me the subordination of the legislative to the judiciary. Let me explain.
As parliamentarians, we are first charged with introducing bills, amending other laws and voting on laws. We form what is called the legislative power. Under such a motion, a member of Parliament could at any time and in any place be summoned to appear before a Canadian court without regard to his role.
Thus the judiciary could, with a summons to appear, govern our activities and interfere in the functioning of this House, something that cannot be allowed to happen under the principle of the separation of powers.
Thus the motion under consideration at the present time would prevent parliamentarians from carrying out their duties effectively, and would mean that henceforth the judiciary would take precedence over the legislative.
Our presence in Parliament, as Joseph Maingot said, is a vital one. Our fellow citizens have made us their legitimate representatives so we can express their concerns here in this House. This status confers upon us inalienable privileges that are necessary to the performance of our duties.
In the eyes of the law, we are not superior to our fellow citizens. We merely enjoy certain rights and protections which enable us to be more effective in representing them.
I am concerned at the erosion of parliamentary privileges. In this connection, even if Motion M-53 is non-votable, the mere fact that it was introduced is indication of what is, at the very least, a lessening of the respect for parliamentary heritage to which I referred earlier.
All our parliamentary practices, as outlined in the Standing Orders and in other pertinent documents of jurisprudence, have demonstrated what parliamentary precedence is all about, what parliamentary privileges are, and why they exist. I know very well that we are familiar with those great principles, but it is a good idea to go over them from time to time.
I do, however, view with alarm the fact that we have reached the point of believing that the roles can in fact be reversed, and that the legislative can, on occasion, be subordinated to the judiciary, as this motion implies.
Finally, I deplore the lack of respect being shown at times for our parliamentary system. On the one hand, this motion reduces our parliamentary privileges. On the other hand, it is converting our committees from quasi-judicial parliamentary bodies into entities under the control of the executive, which makes government members toe the party line, thus taking away the committees' independence to make decisions.
It is high time we turned more to the rich British parliamentary tradition for our inspiration.