Mr. Speaker, I rise today on a question of privilege regarding a matter that was raised in a previous session. On May 12 and May 16, 2003 the former government House leader raised the issue of parliamentary privilege exempting members from being called as witnesses in any court when the House is in session, specifically the decision of the British Columbia Court of Appeal on April 23, 2003 in what is known as the Ainsworth case.
The issue raised in that case was whether the Prime Minister could claim parliamentary privilege to provide legal protection against any action against him from the court for failing to attend an examination for discovery. He also raised the matter of a decision of the Ontario Superior Court with respect to another member involving Telezone Inc.
The latter was dealt with on January 6, 2004 when the Ontario Court of Appeal made a decision with respect to Telezone Inc. I believe that its decision satisfies the former government House leader, although a number of questions remain. The Ontario Court of Appeal ruled that the parliamentary privilege of a member of Parliament not to attend as a witness in a civil action applies throughout a session of Parliament and extends 40 days after the prorogation or dissolution of Parliament and 40 days before the commencement of a new session.
The case of the Prime Minister remains unresolved because the two cases are different. In the case of Attorney General of Canada, et al. v. Ainsworth Lumber Co. Ltd. (B.C.) (29842), the Supreme Court dismissed the application for leave to appeal. The Prime Minister still does not have the right to claim this privilege. The issue of whether or not he can claim this privilege remains unresolved. It is not clear whether or not the House agrees with the former government House leader in that the Prime Minister should be able to claim this privilege.
In his submission, the former government House leader on May 12, 2003 argued that in the Ainsworth decision, the B.C. court confirmed the existence of parliamentary privilege of members against participating in legal proceedings when Parliament was in session. The court recognized that this applied throughout the parliamentary session including adjournments and other periods when the houses were not sitting. However, the court ruled that there was no legal support for extending this privilege for 40 days before or after a parliamentary session.
The then government House leader felt the court's ruling raised an important issue. This is the question of whether it is the role of Parliament or the role of the courts to define what parliamentary privilege is.
On May 26, 2003 the Speaker ruled the matter was a prima facie question of privilege. He also agreed with some members that there was a need for an even-handed application of privilege with respect to the rights of other Canadians. He pointed to a suggestion that it might be appropriate for the House to revisit its current interpretation of the immunity that its privileges provide. He concluded by recognizing the special requirements of the House which make privilege necessary, that there is need to ensure that other citizens are not adversely affected by those privileges.
In particular, members had expressed concern during the debate on the question of privilege that the blind application of the rights of members, such as the right not to be compelled to appear before a court as a witness, might interfere unduly with the rights of others.
The matter was referred to the Standing Committee on Procedure and House Affairs. The committee's initial research revealed that there were two types of situations that can arise: one where a member is a party to a civil action, the case involving the Prime Minister; and one where the member is merely being asked to attend as a witness, the case involving the former member for Ottawa South.
The research claimed that while the parliamentary privilege to avoid appearing in court as a witness does not apply to the Prime Minister because he is named as a defendant in a civil action, the privilege can be claimed by Mr. Manley because he was not named as a party in the case and was simply asked to appear as a witness in the court. The recent decision from the Ontario Court of Appeal would confirm that finding.
The research also left many questions to be answered, such as whether the distinction between being a party to a civil action and being a witness is reasonable and should be reviewed. Should one privilege be extended or the other limited? How should these privileges relate to criminal matters? What is the privilege procedure for a member to claim these privileges? Given the privileges belong to the House of Commons, is the 40 day rule an appropriate length of time for the immunity of being a witness and from arrest, especially given that the parliamentary sessions in the Canadian Parliament are typically quite lengthy? Should the fact that there is a fixed parliamentary calendar for the House make a difference?
The 40 day rule arose at a time when parliamentary sessions were short. The members could not really leave the capital before, during or after a session. Should the ease of modern transportation be relevant? Should the 40 day rule be retained or shortened?
Mr. Speaker, as a result of prorogation, the terms of reference to the Standing Committee on Procedure and House Affairs has lapsed. Since a committee cannot on its own consider a matter of privilege without a reference from the House, I ask that you rule this to be a prima facie question of privilege to allow me to move the motion referring this matter to the Standing Committee on Procedure and House Affairs.