Debates of June 5th, 2008

Opposition Motion--Conflict of Interest Code

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, the member has offered an excellent perspective on the envelope. I have not thought it through a whole lot, and I am not necessarily the smartest guy in the world either, but at this point in the debate I would not want to disconnect the voting right from the right to speech. All of us feel the right to vote is pretty fundamental. Our only ammunition as MPs is our tongue and our vote. That is it.

I would not want to disconnect the right to free speech from the right to vote, although there may be cases where there is an evident personal interest involved in a vote. I think our rules adequately cover that. I do not propose to change that.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, I am pleased to rise today in respect to the debate on the motion that has been raised by the member for Scarborough—Rouge River.

I believe that the motion would reaffirm our privileges and immunities. It would amend the conflict of interest code for members of the House of Commons. It would refer the report of the Conflict of Interest and Ethics Commissioner concerning the member forWest Novaback to the commissioner for reconsideration. The motion would affirm the confidence of the House in the Conflict of Interest and Ethics Commissioner.

My concern with respect to the motion is the amendment of the conflict of interest code. I really do object to the process which the member has chosen to take place in the House with respect to his attempt to change the conflict of interest code. I am concerned that members will not have had adequate time to consider whether the proposed change is necessary and whether it has been properly drafted.

The conflict of interest code has been the subject of careful review by parliamentarians dating back over 35 years when the Trudeau government tabled a green paper on this subject in 1973. Since then, parliamentarians have studied numerous initiatives to develop a code of conduct.

For example, in 1978 the Trudeau government introduced the independence of Parliament act. In 1988 the Mulroney government introduced the members of the Senate and House of Commons conflict of interest act. In 1993 the Mulroney government introduced the conflict of interest and public office-holders act.

In 1995 a special joint committee chaired by the current Speaker and by Senator Oliver was established to develop a code of conduct. The special joint committee recommended a code of conduct for parliamentarians in its 1997 report.

The Chrétien government tabled a draft code for parliamentarians in 2002 based on the joint committee's 1997 report. This draft code was referred to the procedure committee through a careful study by parliamentarians.

The procedure committee examined the code and held extensive consultations with members of Parliament. The committee tabled a report with a code which reflected the comments of the members of the committee as well as input from members of the House.

In its report, the procedure and House affairs committee stated:

The result of our consultations and intensive study is, we believe, a document in which all Members of the House can have confidence. We are convinced that it is a very credible step forward in the self-regulation of this House.

This report was adopted in 2004 and forms the basis for today's conflict of interest code.

The reason that I have gone through this brief history lesson is to remind members that the drafting of the code involved careful consideration and consultation by members over a great number of years. Its provisions should not be taken lightly. The code needs to be effective to ensure Canadians have the highest level of confidence in Parliament and its members. At the same time, care must be taken to ensure that the code does not unduly restrict the privileges of members of the House.

Given the importance of the code, it is not surprising that extensive deliberations took place by parliamentarians before the code was finalized. It therefore follows that changes to the code should not be done in haste without any proper consideration or consultations.

Even minor changes can have unforeseen consequences. Given the implications the code may have for members of Parliament, any changes should be carefully considered before it is adopted by the House.

Instead, the member for Scarborough—Rouge River is proposing that a change be made to the code after only a few hours of debate in the House. In my view, it would be more appropriate for the procedure and House affairs committee to hear from experts on this issue, including the Ethics Commissioner herself.

One of the issues that I think should be explored by the procedure committee is whether the proposed change achieves the member's objectives. For example, the proposed amendment refers to “actions of the member as a member of Parliament”. This begs the question, what are the actions of a member as a member of Parliament?

I do not believe that the member for Scarborough—Rouge River intends to refer to proceedings in Parliament, as parliamentary privilege adequately protects members of Parliament in this regard. For example, a member cannot be subject to a lawsuit for his or her statements in the House or in committee. He said that. I must therefore conclude that the member for Scarborough—Rouge River is referring to actions by members of Parliament outside the House.

What actions outside the House constitute actions as a member of Parliament? How do we distinguish between the actions of a member of Parliament as a private citizen versus actions as a member of Parliament? What statements that members of Parliament make to the media constitute actions as a member of Parliament?

In this regard, it is not clear whether this amendment would actually achieve the objectives the member for Scarborough—Rouge River is seeking. In the case of the member for West Nova, the lawsuit that he faces is a result of statements that he made to the media outside the House. It is not clear to me that the member for West Nova was acting as a member of Parliament in making those statements to the media as any activity outside the House is not a parliamentary proceedings. There is a distinguishing factor.

In fact, very little of the functions of a member of Parliament outside the House or committee can be considered a parliamentary function. For example, in the second edition of Parliamentary Privilege in Canada, Joseph Maingot states at page 84:

A clear distinction should be drawn between those things a Member does in the exercise of his capacity as a Member, only one of which is to take part in a “proceeding in Parliament,” and those he does because he is a Member: the latter are much wider and are not necessarily protected.

He further states at page 102:

The uttering of slanderous words by a Member of Parliament to a journalist outside the floor of the House is not protected by absolute privilege.

It will be ultimately up to the Conflict of Interest and Ethics Commissioner to interpret the proposed change. We cannot predict how she would apply this provision. On the other hand, the procedure committee would have to have been able to ask the commissioner's view on this change and receive her advice of what changes, if any, should be made to the code.

Instead, members are being asked to make a change to the code today without the benefit of such consultation. I would also note that the member for Winnipeg Centre put forward at the ethics committee different wording to change the Conflict of Interest Code.

In his motion at the ethics committee he made reference to excluding, as a private interest under the code, being named as a defendant in a lawsuit regarding a matter then before Parliament or a committee of Parliament. That was, at least, a lot more precise than the motion before the House today.

The motion before us would exclude where a member is a party to a legal action. This could include a situation where a member has commenced the lawsuit as a plaintiff, and plaintiffs of course are parties to a lawsuit. Therefore, this would allow a member to commence an action in the courts and then be allowed to participate in parliamentary proceedings dealing with the subject of the suit and be allowed to participate in those proceedings and use them to advance the member's court case, and even intimidate the party the member was suing.

This shows the need for this matter to be studied much more closely by us as parliamentarians and not dealt with as a result of a hasty, short, one day debate. This also demonstrates there are alternative ways to accept to change the code, if that is necessary, and it would be appropriate to have the procedure committee examine these issues more carefully.

Members may respond by arguing that the procedure committee is not currently meeting and that therefore, today's opposition motion is the only way for the House to respond to the ethics committee's report. However, the procedure and House affairs committee is not meeting because of the tyranny of the majority of that committee which overturned a sound reading by the chair and ultimately removed the chair from his position. This is an example of the situation that the Speaker referred to on March 14 when he stated, “committees have found themselves in situations that verge on anarchy”.

I agree that we need to find a solution to the impasse at the procedure and House affairs committee and I believe that the solution is simple. When the chairs of the committee make a sound procedural ruling that is supported by the clerk of the committee, the committee has to uphold and respect that ruling. All members of Parliament should follow the rules and respect the Standing Orders.

If members think that the ethics committee's report is of urgent importance, then they should agree to work constructively in committee and respect the rules of Parliament. In that way the procedure committee can review the Ethics Commissioner's report and recommend any action it deems necessary.

This is not the first time the opposition has tried to circumvent our normal procedures to implement a change that has not been properly thought out to the Conflict of Interest Code. For example, opposition members on the access to information, privacy and ethics committee tried to ignore the Standing Orders by tabling a report recommending a change to the code. The Speaker rightly ruled the report was out of order as it was clearly beyond the mandate of that committee.

The member for Scarborough—Rouge River has also raised a question of privilege on this issue but has chosen to move forward with his motion without waiting for a ruling by the Speaker. The Speaker noted on May 15, “In my view, there are other mechanisms available to debate and resolve the matter at hand”. In this respect, I would remind all members that section 28(10) of the code allows a member to move a motion to concur in the report. I note that the member for Winnipeg Centre already has a motion on the order paper pursuant to this section. Presumably then, the House could amend the motion to express its opinion on the Ethics Commissioner's report.

In addition, section 28(13) of the code makes provision for the House to refer the ethics committee's report back to the commissioner for further consideration with instructions. Since the Conflict of Interest Act already contains provisions that allow the House to respond to the commissioner's report, I believe it is misguided to change the Conflict of Interest Code at this time.

I would also note that it is not an urgent need to make quick changes to the code. In her report, the commissioner states:

Concerns have been raised about the use of lawsuits, more particularly libel suits, to prevent a Member from performing his or her duties in the House of Commons. I cannot predict whether this may indeed become a problem and I hope it does not.

By stating she cannot predict whether this may become a problem in the future, the commissioner is implying that the use of lawsuits is currently not a problem or a significant barrier to the ability of members to perform their duties in the House.

I would also note that members of Parliament have legal remedies to respond to lawsuits. If a member feels that a lawsuit is frivolous or vexatious, they can ask the court to dismiss the case. The court has a wide range of remedies it can apply, including, most important, dismissal of the case, plus possible damage costs awarded, which would result even in disciplinary action against any lawyer who is acting for a party commencing in such a frivolous or vexatious lawsuit against a member, especially if it was motivated to interfere with a member of Parliament's duties and privileges.

However, the court is the best place to make that determination. If the court finds that a lawsuit is valid, members should not be able to use their parliamentary privilege to advance their legal position. There is therefore no compelling need to make immediate changes to the code. Instead, it would be worthwhile to have the procedure committee examine the issue to determine whether there is a problem that needs to be fixed, and if so, how to remedy the situation.

In fact, when the code was first adopted, the procedure committee recognized the need to periodically review the code's effectiveness. The committee report stated:

We realize that any document such as the proposed Code is, in effect, a work in progress. We fully expect that time and experience will indicate where changes need to be made, and we have provided for both ongoing oversight by this Committee, and a comprehensive review of its provisions and operations every five years.

Section 33 of the code, therefore, requires the procedure and House affairs committee to undertake a comprehensive review of its provisions and operations within five years after its coming into force. The code came into force at the beginning of the 38th Parliament on October 4, 2004, and therefore, a comprehensive review of the code is mandated to take place by October 2009. This would be an appropriate opportunity for the procedure committee to examine the implications of the commissioner's recent report.

I will sum up by saying that the Conflict of Interest Code was developed in a non-partisan fashion with the consensus of all parties. Given the importance of the code, parliamentarians undertook years of careful scrutiny and consultations before finalizing these measures. When tabling a draft code of conduct, former deputy prime minister John Manley stated in the House on October 23, 2002:

A code for members must be non-partisan and must serve all members in all parties. The Milliken-Oliver code, on which this document is based, was prepared by an all party committee.

He also went on to state:

The Prime Minister has stated that the government is open to considering changes which maintain an effective code and serve the interests of members and their constituents. That is why we have tabled these documents in a draft form to give the committee flexibility on these matters.

I am pleased to work the committee and all parliamentarians on these important matters.

The member for Scarborough—Rouge River was a member of the government that recognized the need to engage parliamentarians and build consensus in the development of the Conflict of Interest Code, so I wonder why today the opposition has changed its approach on these issues.

Given that other avenues exist to respond to the Ethics Commissioner's report, and given that there is no clear need to take any immediate action, I do not understand why the opposition members would want to use one of their few opposition days on this subject. I also do not understand why the opposition would not agree to let the procedure committee work within the Standing Orders of the House of Commons so that the Ethics Commissioner's report can be properly considered.

Instead of making changes that have not been properly thought out, I would ask members to oppose this motion and allow the procedure committee to do its work in accordance with the Standing Orders.

[Michael Ignatieff, Liberal, Etobicoke—Lakeshore, ON]

Mr. Speaker, I listened with attention to the speech of a distinguished parliamentarian who mounted a masterful defence of delay and inaction, but the matter before the House, in my view, is a very direct infringement of the privileges of a sitting member, an attempt to deny him the possibility in this House of speaking on a matter of urgent public interest, namely, the Mulroney-Schreiber affair.

This is not a partisan matter. If our situations were reversed, I am sure that members on the opposite side would be outraged at the inability of a member to stand up and speak clearly on the Mulroney-Schreiber affair. If this stands, libel chill will silence privileges in this House.

The injunction to delay and send it to a committee that is not sitting does not provide a remedy. I want to know in fact whether he agrees with a notable statement made by a member of his own party, the Conservative MP for Edmonton—St. Albert, who said:

Lawsuits for statements made by an MP outside the House are one thing. Denying MPs the right to speak in the House on matters of public interest is outrageous.

[The decision by the commissioner], if allowed to stand, is a dangerous infringement on the protection of freedom of speech in Parliament which is enshrined in the Bill of Rights (1689) (U.K.) and forms part of the Constitution of Canada.

It seems to me that member of Parliament from the Conservative Party has got it exactly right. I wonder why the member chooses a policy of delay and denial of the severity of the issue and why his party is not prepared to support an urgent matter to correct what is clearly an infringement of the rights of all parliamentarians.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, where I differ, with respect to the hon. member, is I do not believe members have the unfettered right, and the member for Scarborough—Rouge River made quite a big deal of it in his excellent speech, to say things in this place. My goodness, the Speaker can rule us out of order and if we do not withdraw our comments or apologize, the Speaker has the right to turf us out of here. Therefore, we do not have the unfettered right.

Second, if members of Parliament have an interest in a corporation or some sort of investment with which the House is dealing, the code says that they have to go to the Clerk and tell him or her that they may have an interest. The member for West Nova did not even do that. He went on his willy-nilly way.

There are situations where a member of Parliament does not have the unfettered right. In other words, the principle of George Orwell does not stand in our country. He said that all people were created equal. However, some people are more equal than others. Does that mean members of Parliament have more rights than everybody else in the country? The answer is, no, they do not.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I honestly believe the member for Dufferin—Caledon is too good a lawyer and too good an MP to honestly believe the speech he was sent here to read just 10 minutes ago. He is either using some kind of wilful blindness or he is simply buying into his party's excessive use of the ability to silence another MP, and he is putting his own judgment to the side.

Would he not admit that the Conservatives have found an effective to silence any nuisance MP who might be harping on an issue that is embarrassing to their government? Tragically, our colleague from West Nova is not here to speak on his own behalf because he is barred from speaking on this subject by the Ethics Commissioner under the current court ruling. Does he not agree that what the Conservative Party is engaged in, in an increasingly frequent way, is the time honoured tradition of the corporate SLAPP suit, where one slaps a lawsuit on nuisance critics to shut them up, even if one knows full well that lawsuit is frivolous?

Does he not think we are on the slippery slope, where that will become a frequent thing in the House, since there will be lawsuits flying in both directions, willy-nilly? There will be so much paper flying around we will think we were in a snowstorm, just to silence MPs from being a nuisance, or in other words, doing their job?

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, the member and I sit on the ethics committee. He will recall how this all got going. I follow the principle that justice must be done and justice must appear to be done.

I submitted at the beginning of the hearings in the committee that, quite frankly, the member for West Nova should have recused himself from the committee. Why? Because he had a potential conflict of interest. He was being sued for approximately $2 million. That is an enormous amount of money. It would pay him to embarrass the plaintiff, who was a major part of the Mulroney-Schreiber hearings, if he could use his influence as a member of Parliament.

He was the lead with respect to the Liberals. He voted on motions. He participated in debate. He even cross-examined the plaintiff, Mr. Mulroney, in his personal lawsuit.

Anybody who is a lawyer in this place knows that could never happen in a court of law. I repeat the saying that justice must be done and justice must appear to be done. By the member for West Nova continuing to stay in that committee, justice was not done and it certainly did not appear to be done.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Mr. Speaker, I just listened to my colleague's comments, and I have a question for him.

I am a young MP—I was elected during the last election—but I believe that I was clearly told that anything discussed in a parliamentary committee could not then be used in a court of law. However, in his speech, my colleague said the opposite, that the member in question could use proceedings from the parliamentary committee in his legal case.

Is the member saying that there are judges in Canada who would agree to evidence being used in their courtroom that comes from a parliamentary committee subject to parliamentary privilege?

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, of course I am not saying that. I am saying that the member for West Nova used the proceedings in the committee and in the House to further his lawsuit. The member is quite right. He can find out information. However, facts that are obtained in this place and in a committee cannot be used in a legal proceeding. He can sure use it as an examination for discovery, which would benefit his lawsuit. Those are the pre-hearings where people question plaintiffs or defendants, whatever their opposing side is, on information they have available.

The member forWest Nova did exactly that. He used the committee proceedings and the proceedings in the House to benefit his defence against a lawsuit. He has no right do that.

I am not challenging the use of the parliamentary privilege that exists in this place. I am saying the member for West Nova put himself to an advantage over a private citizen of our country. He, as a member of Parliament, has no right to do that.

[Tom Lukiwski, Conservative, Parliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, my question is as a result of comments made by the hon. member for Etobicoke—Lakeshore, who suggested, in the Mulroney-Schreiber committee hearings, that if the motion was not adopted, it would prevent the public interest from being represented fully, because the member for West Nova would be unable to question Mr. Schreiber or Mr. Mulroney.

First, many other members of the Liberal Party of Canada could have fulfilled that role. Therefore, it is not quieting the entire Liberal party, only that one member who has a direct interest in this case.

We have sections of our code and in the Standing Orders that say, quite explicitly, all MPs should fulfill their duties to the highest standards and avoid any real or perceived conflict of interest. That is what we must do. Clearly, the member for West Nova has a real conflict of interest.

Because of that conflict, does my hon. colleague agree that he should have recused himself from the proceedings?

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, I agree and the Ethics Commissioner agree that he should have done that. Quite frankly, if he participates in this debate, he will continue to do that.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, I am pleased to speak to this motion on this Liberal opposition day.

First of all, I would like to inform my Liberal colleagues that the Bloc Québécois will support this motion.

I listened to the last speaker from the Conservative Party, the member for Dufferin—Caledon, who spoke of the tyranny of the majority and who referred a number of times to the Standing Committee on Procedure and House Affairs, of which I am the vice-chair. As members know, the work of this committee has been stalled. As there is no chair, the committee cannot meet. That is not the purpose of my speech, but if I have enough time at the end, I will be able to correct the nonsense being spouted by the Conservative member.

The motion moved today by the Liberal Party deals with something that is at the heart of our work as parliamentarians. We are talking about parliamentary privilege. Parliamentary privilege derives from British parliamentary law, which serves as our reference, since this Parliament was inspired by Britain's, as was the Parliament of each province, including the Quebec National Assembly.

Over the centuries, parliamentary privilege has had to be protected repeatedly from attacks by courts, by members and by various lobby groups that did not agree that members should enjoy parliamentary privilege. Parliamentary privilege is vital, however, because if we as members have no parliamentary privilege, we could find ourselves at the mercy of any sort of interference. We could be deprived of our right to speak, our freedom of speech and our freedom to move within the parliamentary precinct without threat or aggression.

I have had occasion in the past to invoke my parliamentary privilege. A few years ago, I was the Bloc Québécois transport critic when we were looking at the merger between Air Canada and Canadian Airlines. At the end of the transport committee hearings, I had slightly rattled one witness, Mr. Schwartz, who wanted to proceed with the merger of Air Canada and Canadian Airlines, which could have meant moving Air Canada's headquarters, which is in Montreal—which suited the Bloc Québécois. Fortunately, as things turned out, Canadian Airlines was absorbed into Air Canada and not the reverse. We had had a fairly forceful, but polite exchange.

Mr. Speaker, you know my style. I am a model of patience and civility in this House. If everyone were as even-tempered as I am, things would probably go much better.

When the hearings ended, a lobbyist for Canadian Airlines started berating me. He began challenging the way I had questioned Gerald Schwartz, who had a stake in Canadian Airlines. I have to say that that lobbyist for Canadian Airlines found out what parliamentary privilege was all about. I went to see the committee chair and the sergeant-at-arms, who was then Mr. Cloutier. The lobbyist was denied access to the parliamentary precinct, the Centre Block, where the committee met. He was prevented from attending any more meetings, because he had acted to constrain a parliamentarian.

When I speak here, no one can stop me unless I say something that is out of order or contrary to public policy. As a parliamentarian—just like each and every one of us—I have the right to express myself freely.

I want to turn my attention from the Standing Committee on Transport, Infrastructure and Communities and come back to what the hon. member for West Nova did. He expressed himself, but by all accounts, some people did not like what he said. Allow me to put this into context: he made comments on Mike Duffy's program, probably here in the foyer of the House.

Nevertheless, the purpose of the action taken by the Conservative member who spoke earlier was obviously to deny the hon. member for West Nova his parliamentary privilege. We cannot accept that no matter who it comes from or which side of the table it comes from. I am not a fan of the hon. member for West Nova or of any member of the Liberal Party, but I am a democrat and I respect these hon. members because they were democratically elected.

I ask them to accept me as well for the same reason. No one at home voted at gunpoint. I have been elected five times because the people in my riding decided they wanted me to speak on their behalf in this chamber. That is the case for the hon. member for West Nova as well.

The Conservative Party's tactic of muzzling an hon. member because his comments did not please the party is dangerous for society. Is that the kind of Canada Canadians want? Is that the kind of Quebec we want? No, we want parliamentarians to be able to express themselves.

I know—and it must be recognized—that the Conflict of Interest and Ethics Commissioner sided with the Conservative member. To ignore that would be to change the facts and try to hide things. Nonetheless, with all due respect to the Conflict of Interest and Ethics Commissioner, Ms. Dawson, that was a bad decision. She made a mistake, hence this opposition day and this motion that we will pass this evening, if the three opposition parties stick together.

I would like to take this opportunity to talk about the tyranny of the majority the hon. member mentioned. He should realize that in January 2006, the public, the electors and constituents of Canada and Quebec decided—we did not decide this individually—that the next government would be a minority government.

I encountered the minority government of the hon. member for LaSalle—Émard in 2004. Again, the Liberals have a past, too. I do not want to defend the Liberals, but from 2004 to 2006, they stood up and formed a minority government.

With all due respect, although we are halfway through 2008, the Conservative Party still has not understood this. In reality, the Conservatives cannot do whatever they please, since the opposition has the majority. The leader of the Conservative Party, the Prime Minister, appointed Conservative ministers. That is democracy. That party must realize that it forms a minority government and it therefore cannot do as it pleases.

Incidentally, people from my riding are quite happy the Conservatives do not have a majority. What would happen if they did? It would be a step in the wrong direction.

Opposition members presented a resolution to the Standing Committee on Access to Information, Privacy and Ethics and that resolution was passed. The Conservatives, however, opposed it. They raised a point of order in the House and, because of a technicality, the Speaker of the House found in their favour. Nevertheless, the substance of the issue remains.

What is the Conservative Party's main characteristic? As a government, it seeks to muzzle everyone. That is why I am very happy that we have guardians and protectors who challenge the Conservatives' desire to muzzle anyone who does not agree with their philosophy or think like they do.

Ask the people in the press gallery if they feel muzzled. The Prime Minister said he would answer questions during scrums if the questions were provided beforehand. He needs to wake up. That is not how it works. Reporters should be able to do their jobs without that kind of pressure. I have never been a reporter, so I do not know what it is like. I answer their questions from time to time, but I do not ask them to notify me of their questions in advance. What is going on? It has never been like this before.

Ask parliamentary reporters if they feel muzzled. Ask various women's groups, which this government neither listens to nor respects, if they feel muzzled. Ask minority groups. Ask francophones outside of Quebec and other minority groups that can no longer get funding through the court challenges program. Ask them if they feel muzzled.

This lawsuit and all of the actions related to it show, once again, that the government, not content with having muzzled certain social groups, is now trying to muzzle the opposition.

Let us not forget that in the wake of the Cadman affair, the Prime Minister threatened to take the Liberal Party, or rather, its leader, deputy leader and House leader, to court. In the end, he chose to take the party to court. Once again, he showed that he is out to gag the opposition.

My time is running out, and I want to save a few minutes for questions. For all of these reasons, I repeat that the Bloc Québécois will support the motion.

We should think twice before agreeing among ourselves to scale back our parliamentary privileges. Parliamentary privilege guarantees every member's freedom of speech regardless of affiliation, regardless of belonging to a political party, regardless of personal values. The 308 people who were elected to be here are all legitimate. We should think twice before defeating this important motion.

[Luc Harvey, Conservative, Louis-Hébert, QC]

Mr. Speaker, I listened with interest to the comments of my Bloc Québécois colleague regarding parliamentary privilege.

I believe that parliamentarians have the right to say what is on their minds. However, should parliamentarians not sometimes exercise restraint in their remarks?

In the Cadman affair, for example, the opposition gloated for weeks over a tape which, in the end, had been tampered with. They tried to make a silk purse out of a sow's ear.

Once again, a Bloc member recently made some comments to the media about in and out schemes and went too far. There are some things we are not allowed to say, especially about other members.

Does my Bloc Québécois colleague believe that sometimes it is important, before going any further, to verify whether or not his comments are appropriate? It is not a privilege to be able to sully with impunity the reputation of another parliamentarian or of any individual in society. It is unacceptable to say that because we are parliamentarians we have the right to say whatever we want. Should we not exercise some restraint, sir?

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, you must recognize that the hon. member must always address his colleagues through the Speaker. However, since you were busy taking care of more important things than listening to me, perhaps you did not realize that my colleague failed to follow the rules of the House. Through you, Mr. Speaker, I would like to tell my colleague that the truth will out; facts are facts.

If the hon. member would like to talk about the in and out scandal, can he tell me why, of all 308 Elections Canada reports on the 2006 election, only Conservative candidates, members and ministers are being questioned by Elections Canada? How did the RCMP get a judge to issue a search warrant?

I am a lawyer and I know that a search warrant is not easy to obtain. They cannot be found in a Cracker Jack box. A judge must be convinced. Yet the judge gave the RCMP permission to search Conservative Party headquarters. If everything was going so well, if there were no problems, why did Elections Canada persist? We are told that the Conservative Party no longer trusted Elections Canada. In other words, they do not want Elections Canada to exist and do not want any rules. That is it. In short, the truth will out.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I have a few questions for the Bloc member with regard to the definition of private interest.

We know that Mary Dawson wrote in her decision that the member for West Nova had a private interest and that it constituted a contingent liability because of the lawsuit by former prime minister Brian Mulroney.

In my opinion, Ms. Dawson erred and I am concerned about two comments from Conservative members. The member for Dufferin—Caledon said that the member for West Nova has a potential conflict of interest. For his part, the member for Regina—Lumsden—Lake Centre stated that, in the case of a legitimate lawsuit, there would be a conflict of interest.

I would like to know if the Bloc member agrees with these comments. It seems that it is the Conservative Party and the two members who have determined whether there would be a legitimate lawsuit or a potential conflict of interest. They obviously agree with Ms. Dawson who stated, in fact, that there is a contingent liability.

That is rather different than the current wording of the rule which clearly states that there would be a conflict of interest if there is a private interest, period. Would the Bloc member like to comment on what I just said?

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, my colleague has brought up an interesting point. It seems that following her ruling, Ms. Dawson realized that not only had she opened up a door but that she had seriously breached an entire wall. She realized this herself, as I discovered when I read page 24 of her report.

This could lead to SLAPP suits—an old legal tactic used to silence opponents by prosecuting them, with or without just cause. So aware was she of this possibility that on page 24 of her report she wrote:

Concerns have been raised about the use of lawsuits, more particularly libel suits, to prevent a Member from performing his or her duties in the House of Commons. I cannot predict whether this may indeed become a problem and I hope it does not.

She hopes that it will not come to that. She continues:

Should this become a serious concern for Members, however, the Code could be adjusted to except libel suits from the ambit of “private interest”—

She has therefore recognized that there is a problem and that the code should be amended before the situation deteriorates. To avoid any need to amend or adjust the code, she could simply have refused to accept the Conservative Party's claim.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, I have a question for the member.

If a member of Parliament, either as a member of Parliament or in a personal capacity outside this House of Commons, and I will use the example of libel action, says something and he or she is sued in a lawsuit, or the member of Parliament sues somebody else, and he or she comes into this place and uses the facts of this lawsuit with respect to criticism or intimidation, with respect to the plaintiff or the defendant, depending upon who it is, does that not put the member of Parliament in an unfair advantage over a citizen of this country? That is my question for the member, who is a fair man, who says he is a lawyer, and I am sure he is a fine lawyer.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, what the member has brought up is obvious. Obviously I cannot go down to Sparks Street and say anything I want without the risk of being sued. It is just as obvious that the moon will rise and the sun will set. Obviously we cannot say anything we want.

I would suggest that in his spare time he read the decision of the Supreme Court of Canada in the Ouellet case. In the sugar cartel matter, André Ouellet, a former Liberal minister, had attacked the sugar companies by claiming that they were conspiring. The Supreme Court was clear on the issue of his parliamentary privilege: he could be taken to court.

However, that is not the issue. This does not have to do with the comments of the member for West Nova outside the House, but it has to do with the fact that he is unable to do his job as an MP and sit on the committee. It is alleged that he has a conflict of interest when he participates in the work and debates of the Standing Committee on Access to Information, Privacy and Ethics concerning the Mulroney-Schreiber affair. That is the primary issue.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I am pleased to have the opportunity to enter in to this important debate. It is important to pause in the regular order of business and take one step back to make sure that the fundamental ground rules are in place so that we can do our ordinary order of business more properly.

We are faced with a situation where one of our colleagues, specifically, but all of us, generally, may be precluded from doing our job to the best of our ability and living up to our obligations due to the ruling made by the Ethics Commissioner dealing with our colleague from West Nova in the context of the Mulroney-Schreiber airbus inquiry.

The motion put forward today contains four points. It is quite thorough and comprehensive and quite well crafted in that way. It begins with a categorical statement of which we should all take note:

That this House reaffirm all of its well-established privileges and immunities, especially with regard to freedom of speech;--

My colleague from Scarborough—Rouge River walked us through some of the history of how we arrived at that and how necessary that notion is for Parliament. In fact, he traced its history back to 1689 and the original Bill of Rights in the UK, which forms a part of our Canadian Constitution.

The second item in this comprehensive opposition day motion states:

that, in order to clarify and assure those privileges, Section 3(3) of the Conflict of Interest Code for Members of the House of Commons, which is Appendix I to the Standing Orders of the House of Commons, is amended by deleting the word “or” at the end of paragraph (b) and by adding the following after paragraph (b):

I will paraphrase the paragraph. It should be made abundantly clear in the Standing Orders, that govern the conduct of members of Parliament, that members are not in a conflict of interest just because they are engaged in a lawsuit or a lawsuit has been filed against them. That in and of itself does not automatically put members in a position of conflict. That is the important amendment that we have to contemplate here today.

I will deal with these points one at a time after I have introduced them.

The paragraph goes on to say that the House should refer the Thibault inquiry report back to the Ethics Commissioner for reconsideration in light of the recommended change to the conflict of interest guidelines in the previous paragraph.

Finally, and important to note, the opposition day motion we are dealing with today states:

that the House affirm its confidence in the Conflict of Interest and Ethics Commissioner.

In other words, nothing that we are saying today in the context of this debate is to be viewed as a statement of non confidence in the Ethics Commissioner.

Most of us would agree that the Ethics Commissioner made the only ruling that she could given the current language of the Conflict of Interest Code which forms part of the Standing Orders of the House. She herself realized that her ruling may be cause for great concern.

I should begin my analysis of the opposition day motion perhaps with her final observation on the last page of the report. Ms. Dawson said:

Concerns have been raised about the use of lawsuits, more particularly libel suits, to prevent a Member from performing his or her duties in the House of Commons. I cannot predict whether this may indeed become a problem and I hope it does not. Should this become a serious concern for Members, however, the Code could be adjusted to except libel suits from the ambit of “private interest” for the purposes of sections 8 and 13. Such a step would not appear to be necessary, in any event, in relation to disclosures under section 12.

Clearly, she contemplates that her ruling, accurate as it may be, may alert members of the House of Commons that the Conflict of Interest Code may have the inadvertent effect of interfering with their privileges to speak freely in the House of Commons on issues that concern them.

Let us take a step back then, as I explain the NDP's view of this whole situation.

I should tell members at the outset that I am the vice-chair of the Standing Committee on Access to Information, Privacy and Ethics, and my colleague, the member for Dufferin—Caledon, is the other vice-chair of the committee.

This whole inquiry by the Ethics Commissioner stems from a complaint that he filed dealing with whether or not the member for West Nova should be barred from questioning our witnesses in the Mulroney-Schreiber affair on the basis that there was, in fact, a lawsuit filed by Brian Mulroney, suing Mr. Thibault for comments he made outside the House and outside of the parliamentary committee.

[The Acting Speaker, Conservative, Andrew Scheer]

Order. I believe I heard the hon. member's proper name used a number of times. I know the hon. member will just refer to him by his riding name.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I am sorry. I was trying very hard not to use personal names. At least it shows that you are listening to my speech, so I am flattered in a sense that you could correct me that way.

The member for West Nova was accused of making libellous comments about former Prime Minister Brian Mulroney. He had in fact sued him.

What happened at the committee, Madam Dawson puts in her inquiry report that she tabled with the House of Commons, and the words of the member for West Nova I think are useful to us. As soon as my colleague from Dufferin—Caledon, the other vice-chair of the committee, raised a point of order saying that perhaps the member for West Nova should not be allowed to take part in this study because of the potential conflict of interest, the immediate gut reaction of the member for West Nova, with no research, matched exactly what my gut reaction was. He said:

As to the alleged, supposed, proposed...legal action, [which he said he had no knowledge of at that time] against a member of the committee....it wouldn't be very long before we would have 308 lawsuits in this House of Commons against everybody for minor matters, dilatory matters, to try to remove members of Parliament from being able to debate questions of interest where it would serve somebody out in society better to have them not participate.

That sums it all up. I do not need to make a 20 minute speech to explain what is potentially disastrous about the current state of affairs.

I used as an example in my comments about this that I have said some strong things about the pharmaceutical industry. I have alleged that it fixes prices and charges the public way too much for products where the industry does not really have to and that the drug patent price protections gouge Canadians.

Those are pretty strong words. I do not think they are libellous. They do not have to be libellous. Big pharma could file a statement of claim saying that I said something libellous and under these rules I would not be able to talk about big pharma again until that lawsuit was settled. That would put me at a terrible disadvantage. If big pharma was called to the health committee to talk about the drug patent laws, I would not be able to ask questions about it, even though it is a very particular interest of mine. Big pharma would have effectively silenced one of its annoying critics by simply filing that lawsuit. Even if it knew full well that it would lose the lawsuit two years later, it would have shut me up. It would have effectively put a gag order on me if we follow the strict and literal interpretation of what happened in the case of my colleague from West Nova. We cannot allow that to happen.

Some of the points made by my colleague from Dufferin—Caledon seem reasonable. We should be having this debate. I disagree with him that the process is flawed. He says that this is not the place to debate such a serious change to the Conflict of Interest Code. This is exactly the place. In fact if we farmed it off to a small minor subcommittee of Parliament, like procedure and House affairs, it would not be in the full context of all of Parliament debating these rules. It would be that narrow representation on a dysfunctional committee that has not sat for months. This is exactly the place in which we should be having this debate and raising the cautionary tale that is triggered by Madam Dawson's ruling.

I am speaking on behalf of my colleague from West Nova because he is not allowed to. We should make that clear. He would be making this speech today if he were not barred by this gag order. If Brian Mulroney and his lawyers had not effectively silenced my colleague from West Nova, he would be making this speech, not me, and we would not have to speak on his behalf.

Out of the esteem for my colleague, I am going to quote him a lot on Madam Dawson's report. The member for West Nova said:

So in the interest of democracy, Mr. Chairman, and of parliamentary tradition, I hope you have a serious look at this preposterous suggestion by [the member for Dufferin--Caledon].

The second question I ask is, how could [the member for Dufferin--Caledon] possibly be aware of a legal action that I'm not aware of?

In other words, even before a person is served with papers that he or she is being sued, apparently the person is barred from talking about that issue. If the statement of claim had just been filed at the courthouse even before the person was notified, apparently the person is barred from talking about it.

The member for Dufferin—Caledon said, “he does, with due respect to the member for West Nova, have a pecuniary interest. He is being sued for a lot of money”. Again, the member for West Nova was not aware of this yet. Somehow Brian Mulroney told the member for Dufferin—Caledon before he told the member for West Nova. The member for Dufferin—Caledon said:

That's called pecuniary interest. And it is in his personal interest that the plaintiff in that particular action look badly. I don't think he should have the right to vote in this committee, nor should he have the right to vote in Parliament.

The member for Dufferin—Caledon is recommending that the member for West Nova not only be silenced, but he be stripped of his right to vote on these issues as well. That speaks to the very heart and soul of a member's parliamentary privilege. If there is ever any doubt that there is overlap here in terms of parliamentary privilege, there certainly is in the mind of my colleague who initiated this whole complaint.

There is a time honoured tradition among activists. I consider myself an activist. As a trade union leader, I have been on a lot of picket lines and I have demonstrated on a lot of issues. There is a time honoured tradition in the corporate world called the SLAPP suit. If somebody is annoying someone else, let us say if Greenpeace is annoying Exxon, one way to slow down one's critics is to file a slap suit. Usually the big corporate entity has a lot better ability to withstand a prolonged legal battle than does the small citizens activist group.

The SLAPP suit has been an effective means ever since the ban the bomb movement in the late 1950s and the 1960s. If we are being too effective and we are starting to press a nerve in the corporate world, we might get our butts sued even though we know full well we are in the right and the corporate world is in the wrong. The corporate world can drag it out for year after year in the courts, and will exhaust our resources. It will effectively silence us, or it will at least handicap and hobble us.

That is what is happening here today. This is the most litigious government probably in the history of Canada. I have never heard of so many lawsuits in the course of one minority Parliament. There is a case where the government is suing the leader of the official opposition. I have noticed that the leader of the official opposition does not ask questions directly on the Cadman issue any more, even though it is a matter that the Liberal Party feels is critically vital and a matter that should be raised in the public. I presume that is the reason the leader of the official opposition stays away from that subject, because there is a lawsuit pending. Again it stems from this reasoning.

The government could do that with every annoying issue. It can and it would. I predict, as I said before, there would be lawsuits flying back and forth across this place so frequently we would think we were in a snowstorm.

The first step the Ethics Commissioner does is consult with the parties and gets their statements from them. Again, on behalf of the member for West Nova, I will argue his case in his words. He wrote in a letter to the Ethics Commissioner:

It is, indeed, preposterous to suggest that a legal action--whether real or merely threatened--against a Member about a very public issue automatically makes that issue one of potential private loss or gain under the Code, thereby silencing the Member with regard to that public issue.This would mean that any citizen wishing to silence any Member of Parliament need only engage a publicity agent to announce that he is commencing legal action against the Member. In conclusion, I believe [the member for Dufferin—Caledon's] position of to be a perversion of the Code, which is not and was never intended to be a vehicle for attempted gagging or intimidation of Members of Parliament.

I agree that is a perversity. It is an interpretation of the code that was never intended. We have stumbled across it now, and it is incumbent on us to deal with it now, to fix it, to correct it. I compliment my colleagues of the Liberal Party for choosing to use their opposition day motion to get this issue on the floor of the House of Commons.

We cannot allow this to continue, or I am going to get sued next, or my colleague, the member for Moncton—Riverview—Dieppe. He is fairly outspoken and has many strongly held views on many subjects. I have no doubt he will get his butt sued sooner or later in an attempt to stop him from talking and to silence him.

It is a complex opposition day motion. It has four separate elements to it, two of which are not action oriented and two that are. One is that the House affirms its confidence in the Ethics Commissioner and that the House reaffirms all of the well-established privileges and immunities, especially with regard to freedom of speech. Those two, I suppose there can be no disagreement on. All members of Parliament know that we cannot operate without those basic rights.

I do not understand why my colleague from Dufferin—Caledon is alleging there are two classes of people in the country if members of Parliament have privileges that members of the public do not. There are very sound and established reasons that members of Parliament have a so-called super freedom of speech. There are checks and balances in place as well in that what a member says here cannot be used anywhere else anyway.

For my colleague to say that the member for West Nova would have had an advantage over the other player in the court action by having the ability to speak about that court action in the standing committee is kind of bogus, because whatever he says at that standing committee cannot be used in any other subsequent proceeding. It did not exist for all intents and purposes. When and if that libel action goes to court, the judge will rule on the evidence presented in the courtroom, not on what was said at a parliamentary committee, because any good lawyer would stand up and say that it is inadmissible. What the member said at the standing committee to the other player in that court action would be of no use and no value.

Whatever seems to be a special privilege is offset by a corresponding limitation. In other words, that is one of the reasons a witness at a standing committee does not have the right to remain silent. The reason is self-evident, but the safeguard, the check and balance, is that the person has to answer the question, but what he or she says cannot be used against him or her in any subsequent court proceeding. In fact, it is even fruit of the tainted tree in terms of evidence. Whoever wanted to charge one with that issue would have to find some independent body of information not related to the testimony the person gave at the committee. I think that is brilliant, frankly. It took us a thousand years or so to arrive at that, but that is one of the fundamental rules of privilege as it pertains to Parliament that we now come to understand as being fundamental.

Sometimes it is important to take one step back from the day to day events of Parliament, to pause and reflect on first, how beautiful an institution this is and how well it actually does work, and second, how we make sure that it is never eroded or undermined and that the efficacy is not chipped away at by interpretations such as this. It has to be fluid, just like the Canadian Constitution has to be flexible and adaptable. It is not static; it is dynamic. So too is Parliament and the rules that govern Parliament.

We have stumbled across an area that needs attention and it is an appropriate time to do this in a minority Parliament. In the twilight days of a parliamentary session, I think our time is well spent if we address this issue now, to lay that good foundation so that we can do more effective work in the future unencumbered.

We support this opposition day motion and will be voting in favour of it. I thank my colleagues from the Liberal Party for choosing what we have before us today as their opposition day motion .

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, as the member for Winnipeg Centre has said, we are both vice-chairs on the committee and we have both sat on it for some time. I do respect the member for Winnipeg Centre, who always gives very reasoned arguments. I rarely agree with anything he says, but he is always courteous and gives good arguments in committee and in this place. However, on this occasion, I cannot agree with many of the comments he made.

One of them was that the member for West Nova did not know about this. Does he not read the papers? It was in all the papers, although he may not have been served. When I read the papers, I contacted the court and got a copy of the statement of claim. If that had happened to me, I certainly would have done so. Then what I would have done, to comply with the law, is contact the Clerk and say that I might have a private interest. I am not saying I have an interest, but I may have a private interest. To me it is quite obvious that the member for West Nova chose not to do that.

In this situation, or a similar situation where a member of Parliament is sued or a member of Parliament is suing himself or herself, in the House of Commons or in committee a member of Parliament can use all kinds of tactics to his or her advantage with respect to that lawsuit. These include the advantage of intimidation, or the advantage of knowing whatever he or she can do to destroy the lawsuit, if he or she is being sued. This is called a pecuniary interest if a member is being sued for $2 million, which is what the member for West Nova is saying.

Would the member not agree that in this situation or any other type of situation, where the member himself or herself is doing the lawsuit, that those situations would take place? There is the issue of intimidation, of a member taking advantage, as a member of Parliament, over a private citizen. The private citizen does not have those rights, but the member of Parliament does in this situation.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I understand my colleague's point and he made it with previous speakers as well. The point I am making is nothing in today's motion says that members of Parliament should have the absolute freedom to go around and say whatever they want and not be sued. All the same limitations will still continue to apply to an MP. If members do say something that is possibly libellous and they get sued, that should not automatically put a gag order on them to deal with that issue while that court action plays itself out. That is the difference here.

To answer my colleague's question about the advantage or disadvantage, he should have more confidence and more faith in our judges and in the judicial system. When this lawsuit is finally heard by a judge, and I do not believe Mr. Mulroney will see the lawsuit all the way through, the judge is not allowed to use anything heard at the parliamentary committee. It is excluded; it is privileged. Any good lawyer representing Mr. Mulroney, who will be well represented, can stand, if there is something damaging about the questioning of the member for West Nova to Mr. Mulroney, and ask that it be excluded and the judge will only be allowed to consider what is presented as testimony in that court case. I simply do not buy that an MP would have an unfair competitive advantage in the subsequent court case based on what happened at the committee.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I thank the member for his comments, but I am not sure I want to thank him for the prediction that I might be sued some day and join the “I've been sued by Tories” club, which the member for West Nova and Ajax—Pickering have printed T-shirts.

I want to ask him a question with respect to the terms “contingent liability” contained in Mary Dawson's report, which is an expansion of black letter law that says “liability”, the term “private interest”, a term in the Conflict of Interest Code now and can be plainly read, the term that has been used by the member for Regina—Lumsden—Lake Centre of “legitimate lawsuit” and, finally, the term used by the member for Dufferin—Caledon about a “potential conflict”.

It seems to me, and this is the question, the Conservative side has put on blinders. Those with immense legal experience, experienced lawyers, and have taken the silk, like the member for Dufferin—Caledon. They seem to be morphing from what the black letter law says, that private interest leads to a conflict of interest and exclusion or recusal.

What Conservatives now say is that it is a pecuniary interest. If one knows about a lawsuit from reading the paper and a person has not been served yet, this is a legitimate lawsuit. How do the members opposite know that? How does anybody know that until it goes to court and creates a potential conflict of interest?

Is the whole Conservative view of this not really far away from what the Conflict of Interest Code says, and even what Mary Dawson said when she expanded it to include contingent liabilities? I would like his comments on that.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, yes, it seems there is a creep, so to speak, taking place in the interpretation of the Conflict of Interest Code, as it pertains to MPs, in the Standing Order, the idea of private interests or possible private interests or contingent liability. We are dealing with sections 8, 12 and 13 of the Conflict of Code. The member for West Nova was found to be in contravention of all three, but for subtly different reasons, which I do not think are important enough to go into.

What is important is we need to amend the Conflict of Interest Code in the Standing Orders to make it abundantly clear that members of Parliament are not automatically deemed to be in a conflict of interest just because they are players in a libel suit. Nothing in what we recommend says members should not be used if they say something libellous. They made their beds and they can sleep in them. However, they should not be precluded or barred from speaking about that subject matter for the whole duration of the lawsuit until it gets resolved. The Standing Orders need clarification on that.

Again, I remind people that the very last page of the Ethics Commissioner's report on the inquiry into the comments made by the member for West Nova says:

Concerns have been raised about the use of lawsuits, more particularly libel suits, to prevent a Member from performing his or her duties in the House of Commons. I cannot predict whether this may indeed become a problem and I hope it does not. Should this become a serious concern for Members, however, the Code could be adjusted to except libel suits from the ambit of “private interest” for the purposes of sections 8 and 13.

This is exactly what the opposition day motion put forward by the Liberals intends to do. That is why we recommend that all members support it and clarify this issue once and for all.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, I have listened to the member's comments as to why he is supporting this resolution and I assume he therefore supports the decision based on the law we now have.

Based on this law, the member for West Nova clearly violated the conflict rules. He clearly violated the legislation. He did it in three areas. I assume therefore that the member, because he supports this request for a change, agrees with the Ethics Commissioner that the member violated the law.