Mr. Speaker, there are 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 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 apply only to civil cases.
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 the House of Commons to a large extent, except for the odd few in the cabinet over there. Maingot continues:
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 the 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 were 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 seem to arise out of the automatic nature of the immunity and when a member uses the privilege for personal advantage.
On November 25, 1998, a private member's motion was debated in the House. It was worded as follows:
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.
Robert Fife wrote a column about the motion entitled “Lawmakers above the law”. He cited the cases 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 Berntson 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.
Since the motion was not votable and the House did not take a decision on the issue, the privilege is in play and we should of course do what we need to do to defend it, keeping in mind the details and potential abuse.
The government House leader is raising a concern today about a B.C. Supreme Court ruling involving the member for LaSalle—Émard. He asserts that the Constitution and convention provide that it is for Parliament to state what its privileges are with respect to matters related to Parliament and its proceedings. He claims that it is for Parliament and not the courts to define what is or is not a matter of parliamentary privilege.
On Thursday, May 8, 2003, the Canadian Alliance proposed a motion, which read:
That this House call upon the government to bring in measures to protect and reassert the will of Parliament against certain court decisions that: (a) threaten the traditional definition of marriage as decided by the House as, “the union of one man and one woman to the exclusion of all others”; (b) grant house arrest to child sexual predators and make it easier for child sexual predators to produce and possess child pornography; and (c) grant prisoners the right to vote.
The same minister who is defending his colleague, the member for LaSalle—Émard, and defending the rights of Parliament against a court ruling participated in the debate on Thursday. This is what he said last Thursday:
Some members of the House have suggested that the courts are assuming a role that is not contemplated in the Constitution. That is close to ridiculous. Such comments may cause people to question the legitimacy of the courts. In a society where we value the law, comments like this coming from parliamentarians run totally contrary to the principles we are called upon to defend in this Chamber, collectively and individually...The independence of the judiciary is fundamental. Judges' independence must be respected, both individually and collectively.
When it comes to protecting children from child sexual predators, preserving the traditional definition of marriage as established by the House and defending against court rulings that allow prisoners to vote against the will of Parliament, the minister ridicules any attempt to use the authority of Parliament. When it comes to defending the next prime minister, he is on his feet pleading that the House take action.
Joseph Maingot's Parliamentary Privilege in Canada sums up the privileges of freedom from arrest as a protection from arrest for any civil process, such as failing to obey any 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 feels the circumstances are extraordinary:
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...suggests 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 the member's question of privilege is prima facie, then the House considers the case and makes a decision.
With respect to being required to attend as a witness, once again the problem is not with the idea that the House has first call on the service 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 the former minister of finance was formally charged with contempt of court, then the action should be taken seriously and the House should consider the matter. I point out again that the courts have made decisions with more serious consequences, yet the government has failed to act. Everything else seems to warrant the member for LaSalle—Émard absenting himself from the House, such as fundraisers and flipping hotdogs, but not a court subpoena. He has his priorities.