I was speaking therefore about a similar precedent, which was raised by the member for South Surrey—White Rock—Langley in October and involved a federal agency, CSIS, and its direct and indirect activities in proceedings against her.
The Chair took this case under consideration, noting that it appeared at first glance to be a serious question of privilege and of contempt of parliament. The matter I put to you today may be compared with the earlier case, but appears to me more serious still, because it concerns not a former employee of the Senate, but a sitting senator whose actions involve the Senate directly in an attack on the authority and dignity of the House of Commons, or tends to produce such results.
The matter at issue arises from a civil suit brought against my by a senator who took offence at a bulk mailing of 16 pages on the Senate to my fellow citizens in April. The mailing of 48,000 copies, distributed by the House of Commons services, was intended solely to inform the public on the Senate. The document upset the senator to the point that she took action against me for defaming the Senate.
The strangest part of the matter is that the petition gives the impression that this is a simple suit by a senator against a member of parliament, which is not the case. Much more is involved. In fact, the suit involves the Senate directly, putting it in a position of hostility and aggression with respect to the House of Commons.
First, the senator speaks on behalf of the Senate. She defends the institution as if she had been given a very clear mandate to do so. She then makes provocative and disparaging remarks about the House of Commons and the elected members sitting there, something I consider entirely inappropriate and unacceptable.
This case arises from a civil suit brought against me by a senator. Although the appearances may lead you to believe that it is simply a lawsuit concerning an MP and a senator, it is much more. In fact, the lawsuit involves the Senate directly, placing it in a hostile position toward the House of Commons. The senator speaks in the name of the Senate, for the institution as a whole, as though she had a clear mandate to do so. In so doing, she makes a number of provocative and derogatory comments concerning the House of Commons and its elected members, which I consider to be totally inappropriate and unacceptable.
A personal libel suit must be limited to the factors that have a truly personal impact.
In Ms. Hervieux-Payette's suit, the personal is buried in a huge number of allegations that have nothing personally to do with the senator. Ninety per cent of the allegations do not involve her personally, but rather the Senate as a whole and its relations with the House of Commons.
For example, she feels that the comment made in my document to the effect that “the Senate is an archaic and undemocratic institution” is defamatory. She accuses me of making false and erroneous claims concerning the costs of that institution and the particular services enjoyed by senators. She feels that my statement to the effect that the Senate sits few hours and few days per year is defamatory. Finally, she considers that my comments are contemptuous when I state that the Senate is an institution that lacks transparency, or that senators can find themselves in conflict of interest situations since they sit on boards of directors that can sometimes bring them in excess of $400,000 per year.
All these allegations are not of a personal nature. She is speaking on behalf of the Senate. In fact, she is not only speaking on behalf of the Senate in her application, but also in her examination, which took place on August 19 and where she said “I am speaking on behalf of the institution” It could not be any clearer. I will table a copy in French and an English translation of that examination and of the application.
In speaking on behalf of the Senate as she is doing—and this is my first point—is the senator not involving the Senate as an institution in her lawsuit against me? Is the Senate not directly or indirectly involved in a lawsuit against a member of this House? Is the Senate not prosecuting a member of parliament through a senator?
At this time, I can assure you, based on the comments made by the senator during her examination that the Senate has played an active role in the preparation of that legal action. Is this not evidence that the Senate is behind the application made by Mrs. Hervieux-Payette?
What is important here is to recognize that in speaking for the Senate, the senator forces me to violate the spirit of parliament. In order to defend myself, in order to be assured of having a just and equitable trial, I am compelled to contest the immunity of senators and to convene a number of them by subpoena duces tecum. I have no other choice. To prove my innocence, I must fight the Senate, somewhat like David against Goliath. Obviously, it is an unfair and excessive burden, a task requiring resources that far exceed those available to a single, solitary member of parliament. Does that not in itself constitute an attack on my status and role as an elected MP?
As I have said, in order to defend myself, I will be forced to call senators, Senate staff, and even senior House officials by subpeona duces tecum for questioning about the Senate's budget, costs and operations.
I will even be forced to call senators by subpeona duces tecum to testify about their travel, telephone and office expenses, and even about their lobbying activities and possible conflicts of interest, given their role as directors of several large Canadian and foreign corporations.
The senator is thus speaking on behalf of the Senate, implicating the Senate directly, and several other senators. But she does not stop there. And this bring me to my second point.
In addition to implicating the Senate, the senator also attacks the House of Commons by drawing a series of provocative parallels between the House of Commons and the Senate. For instance, she compares respective costs and functions, leading us to believe that senators are less costly and therefore more efficient than we are as elected MPs. The remarks are made with the same spirit that pushed Senator Nolin to accuse the House of Commons of becoming a circus since we have introduced televised debates. If such provocative remarks are included in a senator's civil suit against an MP, does that not in itself constitute a serious case of contempt of the House of Commons and of its role as the voice of democracy in the country?
Therefore, not only am I forced to tackle the entire Senate alone in order to defend myself, but I must also defend the integrity of the House of Commons alone as well. Do I have a mandate from the House of Commons to speak in its name as the senator seems to have for the Senate?
Again, I will be forced to call a certain number of members, and even certain ministers, to testify in defence of the House. It would even be appropriate to have each political party send a delegate to defend its rights with respect to the matters raised.
As members can see, I am not implicated in a personal attack so much as I am a victim of an attack by the Senate against the House of Commons.
I find myself caught, as it were, between two different institutions, which are sometimes hostile towards one another, having to battle the first and defend the second, simultaneously and on my own, because I have so far received no assistance from the House of Commons, despite the magnitude of this affair, which I feel is completely immoral and unfair. I am in an impossible situation.
This brings me to my third and final point. This civil suit is well beyond my means as a member. When a senator, with the support of the Senate and/or the government in power, as is the case here, brings a suit against a member, the battle is an unequal one. A member of parliament, particularly an opposition member, does not have access to the resources a senator does who is appointed to the Senate for more than 20 years and who can have her legal costs met by a whole set of agreements with the Senate spread out over ten or fifteen years, to which can be added some attractive contracts from the government in power.
Because of the exaggerated nature of this case and its clear attempt to muzzle MPs that dare criticize the Senate openly, my rights to freedom of speech is being jeopardized, and so is the freedom of speech of most other elected members of this House.
Because of the exaggerated nature of this case and its clear attempt to muzzle MPs that dare criticize openly the Senate, my right to freedom of speech is being jeopardized, and so is the freedom of speech of most other elected members of the House. Let me explain.
As soon as this business began, when the senator sent me her formal notice, alleging that my 16-page document contained defamatory material, I contacted the House legal advisers who advised me to send out a mailing to all my constituents in Québec East making several minor corrections, in order to ward off any possibility of a lawsuit and to cool off any other senators. The House legal advisers wrote up the correction notice, and although I feel it is extremely generous in certain points, it was sent out as drafted by the House.
I co-operated fully, and to the letter, with the House legal advisers in order to avoid any lawsuit. The Senator did sue me, however. Moreover, the House legal counsels told me clearly that, if there were a lawsuit, the House would very likely agree to meet the cost of representation by counsel, since I had acted readily and in good faith, particularly when the alleged errors had been committed in the performance of my parliamentary duties, in a householder mailing. In other words, I had every reason to believe that the House of Commons would back me up if there were a court case.
Members can therefore imagine my amazement to learn that the House of Commons is refusing to meet the costs of representing me in this lawsuit. I am all the more surprised since the House of Commons generally meets the legal costs of MPs when the actions for which they are sued were committed in the performance of their duties. This is a justified practice because a member of parliament is a public figure subject to all manner of lawsuits, justified or unjustified. That is, moreover, why this is a common practice for provincial and municipal administrations as well.
In your letter of October 29, you give no reason for the refusal by the Board of Internal Economy. In an earlier letter, however, you had written that the board was “hesitant to intervene in a dispute between parliamentarians of both Houses”. If that explanation still holds, it strikes me as rather discriminatory, and seriously threatens my freedom of speech as a parliamentarian.
First, why would the House of Commons be so hesitant to intervene in a dispute between a member and a senator? Is the House of Commons not the House of the elected representatives? And is the House not obliged to defend elected representatives, before senators, who are not elected?
The Speaker of the House of Commons is first and foremost Speaker of the House of Commons, not of the Senate. Does he not have a moral obligation toward the elected members of the House before those of the non-elected Senate?
Every credible organization in the western world comes to the defence of its own members first before those of any other organization. It is a question of respect in the most primitive sense.
MPs in the House, therefore, cannot be placed on an equal footing with the senators over there. We are the elected members. We speak for taxpayers and must answer to them every four or five years. We carry the flame of democracy. Without us there is no democracy. Without us the voice of the people is silent.
Senators are not elected. They are appointed to age 75 and, accordingly, are not accountable to the public every five years. Their role is not essential to the democratic process. Our democracy does not depend on the senators. Our system could do without them, but not without MPs.
So, how can we equate an elected MP with a non elected senator? This is serious discrimination against me as an MP and where my freedom of speech is compromised, like that of all the other members of this House. Nothing is more serious, as Beauchesne writes in comment 75 in the 6th edition, and I quote:
The privilege of freedom of speech is both the least questioned and the most fundamental right of the member of parliament
To compromise members' right to speak is to compromise the very foundation of democracy and its exercise in this House.
Accordingly an excessive, exaggerated lawsuit such as this one is a forceful attempt to muzzle MPs who wish to criticize the Senate.
In refusing to cover the legal costs in my defence, the Board of Internal Economy not only assures the pre-eminence of senators over MPs but gives senators the freedom to sue MPs even for the most ludicrous reasons, knowing full well that henceforth they are vulnerable. I would remind the House that a lawsuit is not necessarily reasonable or justified because it comes from a senator. Their intentions can also be mischievous and malicious.
MPs will then be subject to forms of blackmail by senators who are non-elected and who represent particular or private interests. When governments elsewhere are reducing the advantages granted to those who are non-elected in Canada, non-elected senators are taking precedence over the House of Commons in making elected MPs toe the line. What a travesty of justice. What a travesty of democracy.
Regardless, the board may try to weaken me by refusing to cover my legal costs, contrary to custom. It may protect the interests of the Senate first and permit me to be sued to the limit of my human and financial capabilities. I will, however, never give up my right to speak. So long as I am an elected member of this House, I will continue to speak of the waste and the abuse in the Senate. Not only have I the right to do so, I have the duty. Dead or alive, as the old Panamanian adage says, but never on my knees.
I will never give up my freedom of speech. Never shall I cease to criticize the waste and abuse of the Senate. As long as I am an elected member I will continue to criticize it because it is not only my role but my responsibility toward taxpayers.
Too often elected members are criticized for not respecting the will of the people. Here is the golden opportunity to put into application the views of the vast majority of Canadians and Quebecers who are opposed to the Senate as it exists today and who want it either abolished or reformed.
For all these reasons, I would ask the Chair to exercise all its influence to reverse this decision by the Board of Internal Economy and give me the money I need to cover legal costs in this matter so that my defence and that of the House of Commons, currently under attack, may be properly assumed.
