Mr. Speaker, I want to thank the leader of the government for giving me notice of his intention to raise this matter. It is an important question and it deserves our attention. In fact, I would I suggest this is an extremely important issue.
The Court of Appeal of British Columbia has taken issue with the scope of parliamentary privilege as the leader of the government has stated. The issue is the immunity of members and senators from being called to give evidence in a civil court during the period of 40 days before the summoning of the new session of Parliament and for 40 days following prorogation of a session.
I have only had a brief opportunity to read the unanimous decision of the Court of Appeal but it does raise serious questions for Parliament, and it does raise some serious questions for the government and for the member for LaSalle—Émard.
As members of the House we must protect the undoubted rights, protections and immunities that constitutionally guarantee our ability to attend in this place to debate and vote freely on the business of the Crown or that the Crown places before Parliament and to which we have been elected to serve.
Her Excellency the Governor General at the commencement of this Parliament on January 30, 2001 reinforced these protections and immunities. I want to quote those words again. They are more than pageantry; they are the heart and core of our Parliamentary constitution. Mr. Speaker said:
May it please Your Excellency,
The House of Commons has elected me their Speaker, though I am but little able to fulfill the important duties thus assigned to me. If, in the performance of those duties, I should at any time fall into error, I pray that the fault may be imputed to me, and not to the Commons, whose servant I am, and who, through me, the better to enable them to discharge their duty to their Queen and Country, humbly claim all their undoubted rights and privileges, especially that they may have freedom of speech in their debates, access to Your Excellency's person at all seasonable times, and that their proceedings may receive from Your Excellency the most favourable construction.
The hon. Speaker of the Senate answered as follows:
Mr. Speaker, I am commanded by Her Excellency the Governor General to declare to you that she freely confides in the duty and attachment of the House of Commons to Her Majesty's Person and Government, and not doubting that their proceedings will be conducted with wisdom, temper and prudence, she grants, and upon all occasions will recognize and allow, their constitutional privileges. I am commanded also to assure you that the Commons shall have ready access to Her Excellency upon all seasonable occasions and that their proceedings, as well as your words and actions, will constantly receive from her the most favourable construction.
There now appears to be a dispute within Her Majesty's courts as to the extent of our immunity from being called to give evidence in a civil case. Does it extend for 40 days before and after a session of Parliament? Clearly that is the question that should be resolved if it is in doubt. Three learned justices from the British Columbia Court of Appeal have cast doubt, so the issue should be resolved definitively.
There is another side to this matter. It is the issue of simple justice for those who seek redress from the courts. As the Court of Appeal states in paragraph 51, it is open to a member of the House to voluntarily appear and give evidence. The court is quoting from the 1983 edition of Maingot's
Parliamentary Privilege in Canada.
On page 134 the author discusses the parliamentary privilege of not being required to attend as a witness. The following appears:
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. Thus the member is not compelled to attend as a witness before any court or tribunal in Canada while the House is in session, whether in a criminal, civil or military matter.
Further, on the same page it states:
In Canada, a member of the House of Commons who has received a subpoena to appear in civil or criminal court while the House is in session may wish to attend where he feels his absence might affect the course of justice, particularly after having been apprised in advance by the party in question. However, members have the legal right to claim this privilege and while the service of a subpoena would not normally be raised in the House, the counsel who authorized the service would probably be advised by the member or by the Law Clerk of the lawful claim to this privilege.
It is clear that if the member for LaSalle--Émard wants to appear, he is completely free to do so. He is not prevented by the House from appearing. In this case the member for LaSalle--Émard is involved because he was the minister of finance, and we understand that, and on behalf of himself or the people under him, he was asked to appear.
One of the issues that should be examined is the degree to which ministers of the crown use parliamentary immunity to avoid appearing in court to answer for their actions. Even though our rights and privileges have to be protected, we must also ensure that people have the right to bring others before the courts.
Let me summarize by saying that abuses took place in the 18th century. There are quotations that show us that people questioned the rights of parliamentarians. These abuses can just as easily occur in the 21st century if members of the House hide behind the claim of immunity when they could easily appear to give evidence in the interest of justice.
We have rights and privileges but we should not abuse them. Immunities exist to protect the ability of members to attend and speak freely in the House and we must make sure that these are clarified. They should not be used by ministers to frustrate those who seek justice in the courts. I cannot believe that the member for LaSalle--Émard is so busy that he cannot find time to give evidence.