Mr. Speaker, I rise on a point of order related to the motion before the House. I want to ask for your indulgence while I say to you that the motion now before us is null and void and is therefore out of order. In legal parlance it is void ab initio . The motion should not be put to the House. The motion asks the House to waive its privileges or rights in this case with the understanding that this waiver cannot be construed as a precedent.
The motion was put on the Order Paper on December 6 in the name of the Minister of Justice, who is also the Attorney General. The motion in the name of the justice minister asks us to do something which cannot be done; it is an impossibility. The Minister of Justice knows that this motion, if it were passed, would be an order of the House. The minister knows that those rights and privileges referred to in the motion are those received and contained in section 18 of the British North America Act. It states in part:
The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof:
The minister knows that this is a fundamental part of our constitution and the law of the land. The rights and privileges referred to in the motion are fundamental constitutional matters. It is clear that this cannot be done. Any motion of the House cannot waive any other law.
I will give an example. Let us assume that on March 1, 2003, John Doe, who happens to be a member of the House, was charged with impaired driving under the Criminal Code of Canada. A motion is subsequently brought to the chamber requesting that the House waive the law of impaired driving against John Doe. It is clear we cannot waive the law of impaired driving. The Crown may decide not to proceed to lay charges or proceed in any way against John Doe, but the Crown has not waived the law concerning impaired driving. The law still exists; it still applies. It has not been waived in such case, so choosing not to apply the law is not a waiver of the law. Waiver of the law, in the case of privileges as contained in section 18, would require an express act of Parliament.
I would submit that the motion before us is identical to the example of John Doe just given. The cabinet, by this motion in the name of the Minister of Justice and Attorney General, asks the House to “waive its claims to insist upon such rights and privileges”. The cabinet is asking the House to waive its privileges as against it. It is asking the House to waive section 18 of the British North America Act, the very privileges that we were given as collective members of this House. It is asking us to waive these section 18 privileges. That is an impossibility and therefore the motion is void ab initio .
I want to give a second example. John Doe, a member of the House, makes a statement inside the chamber about an individual I will call Bill Black which, if made outside the House, would be actionable in law. A motion is laid before the chamber waiving the privileges for the statements made by John Doe in the chamber and permitting Bill Black to bring a suit arising from the statements of John Doe in the chamber.
The House could not waive the privileges of a member of Parliament by a simple vote of the majority. Such action would make mockery of section 18 of the British North America Act. The majority of members of the chamber cannot strip a member of privileges enjoyed as a member of the House in that individual's capacity by a simple vote of the majority on a resolution or a motion.
This motion purports to do what cannot be done. It purports that the collective privileges given to the chamber under section 18 will be gone. It purports to do what we cannot do in law.
Section 18 is the legislative legal authority to call the executive to account, so by waiving our privileges we live in a system of crown prerogative, that is, government by cabinet. If this motion were to pass and privilege is purportedly waived, I as a member of the House could apply to a court for a declarative order that this motion is ultra vires. The powers of this chamber would be gone. In purporting to waive our privileges, nothing would preclude a court from assuming jurisdiction with respect to this motion that has been brought to the chamber in the name of the Minister of Justice.
This chamber and we the members of the chamber would be reduced to no more than a municipal council, an elected assembly, without the powers bestowed by section 18 of the British North America Act. Without section 18 privileges, responsible government is gone.
Finally, I want to refer to a debate which occurred in the Australian parliament in 1985. It has been said about this, and I have read about it, that somehow--