Mr. Speaker, it gives me great pleasure to rise and address the House on the motion of my friend and sometime mentor from Scarborough—Rouge River, who is a very eloquent defender of parliamentary rights and privileges without respect to party calling or any other loyalty. He is loyal to this institution. This motion, I truly believe, derives from his sense that there is a wrong and we should right it.
The member for Scarborough—Rouge River may be seen as leaping to the defence of the member for West Nova. I believe it was the Bloc intervenor who said earlier, and I am paraphrasing his French, that he is no fan of Liberals but he does defend the right of all parliamentarians to represent their communities and to speak out.
I am a fan of the member for West Nova, and I do not mind saying that, but it is very important to parse this and to say very clearly that we are not here as a party defending only the member for West Nova. We are here talking about each and every member of Parliament, and Parliament as a whole, with respect to their rights and privileges to represent the people of Canada.
We are here speaking for the institution. To paraphrase the famous Jewish rabbi, Hillel, if I do not speak for Parliament, if we do not speak for ourselves, who will? And if not now, when?
It is quite ironic, however, to say that here we are talking about a statement that was made outside the House regarding a matter that was very much part of the business of the House by way of extension in committee. That was the Mulroney-Schreiber affair. We are talking about a statement that was made about former prime minister Brian Mulroney. In almost two hours of debate now, there has been no mention of Brian Mulroney, what he did, what was said and why we are here.
Is that not the strongest evidence of the chill about speaking out to issues, about speaking to power, so to speak? I might even sound like an NDPer here, if you will forgive me, Mr. Speaker. As for speaking to issues that are before us, they are not being spoken about at all because of the de facto chill that is in this place.
This means that we are not speaking at all in these two hours about Brian Mulroney accepting cash while he was still a member of Parliament and the statement the member for West Nova made, which was that he believed Brian Mulroney accepted money while he was an office-holder, when we know after the fact from the testimony that Mr. Mulroney met with Schreiber while he was prime minister and subsequently received money. It is not a stretch. I would love to see how this lawsuit turns out, if it ever gets there.
Is this not more than just a libel chill we are talking about? Are we not really talking about a democratic chill? The libel chill is the agent used to chill democracy, to chill the right of the citizens to expect the member for West Nova and the members in the House to get up and pursue issues that are important to the continued democratic well-being of the nation.
I must get back to the idea of libel chill. Libel, of course, is something that is written. In this case, what is alleged, let us guess, is the form of defamation known as slander. There are many defences in the common law to any suit with respect to defamation, the first of which, the primordial one, is the truth. The truth is always a defence. The second, or the second branch, is the various defences of privilege, qualified and others.
I come from a municipal background. In municipal councils across this country, there is not the form of parliamentary immunity and privilege that there is here, yet there is a qualified privilege for elected officials. There is a qualified privilege for people speaking out on public issues.
I will quote now from a British House of Lords decision in 1974, without I hope offending any politician of any stripe, which puts in a nutshell why it is important for elected representatives to be able to speak out. The case refers to members of a local council at meetings or any of its committees speaking in colourful terms about issues and persons.
What was stated is that the reason there is a qualified privilege protecting non-parliamentarians but elected representatives is that:
--those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly they run no risk of liability for defamation of those who are the subjects of their criticism.
Does that not encapsulate what we really think of democracy? We are not sending to municipal councils and to this place of Parliament the most careful individuals who never say anything outrageous, of course, and as a body all of us have the right to say things that are on the minds of the people. Sometimes those statements get pretty interesting.
The principles laid down with the common law for councillors surely are expanded upon from the 1689 bill of rights, over which a king eventually lost his head, over which centuries of parliamentary privilege have evolved, to the point where what happens in this place, in the Parliament of Canada, is ruled by the rule of privilege that predated the creation of this Confederation in 1867. It certainly predates the Constitution Act of 1982 and has been ruled by the courts to be exempt from the charter of rights in almost every case.
There are exceptions with respect to the Speaker. In fact, the firing, hiring and disciplining of staff is an example, as are many other administrative issues that deal with the private rights of individuals when they brush up against parliamentary privilege, but by and large, and my friends on the other side may not like this, it is the state of the law. The parliamentary privilege is immune from the charter of rights. It is an element in being that is different from the laws of the rest of this country.
I think of other countries across the world where one can close out democracy by threatening to sue or suing someone. I do not think Canada wants to be on the list of some of these countries. In Singapore, for instance, it was de rigueur for political leaders in power to libel-chill opposition members to the point where they had to resign from Parliament and go out and make some money to defend lawsuits. It is not the kind of democracy or the vehicle for democracy that I think we want.
To pick up on the point of the member for Winnipeg Centre, and let us just pick on his party because he brought it up, his party often takes on certain groups or classes of entities in our community. I can think of the rhetoric and talk regarding big oil and big profits in these days of high gas prices. If this ruling, the interpretation of the Conflict of Interest Code in this case, were to stand and if we were to do nothing, it would not be difficult to envisage the big oil companies suing the leader of the New Democratic Party and anyone else in the party who espoused the view that big oil is making horrific profits at a time when the community is suffering from high gas prices.
If that were the case, if every member of the New Democratic Party were sued for pecuniary damages and there were hearings at the natural resources committee or the environment and sustainable development committee with respect to big oil profits and gas prices, it would mean that no member of the NDP could serve on the committee, vote or ask questions.
When the Bloc member said he is no fan of the Liberal Party, I suppose I should say in fairness that per se I am no fan of the New Democratic Party, but I would defend to the death the right of the New Democratic Party to intervene on an issue that it thinks is pretty important, and which I can see from the perspective of all Canadians is important, and that is the price of gas.
This is not a wild expansion of what happened in this case. It is not something that opposition members can say would not happen, particularly with respect to the rhetoric that we have heard from the other side today.
Let us keep in mind that the conflict code says that if a member has a private interest or a conflict of interest, that member should recuse himself or herself from a matter before a committee or in Parliament. That seems pretty clear.
Where the train falls off the track and gets derailed is in the interpretation of “private interest” and “conflict of interest” and whether a lawsuit is meritorious or not.
The member for Regina—Lumsden—Lake Centre, who is very experienced in the House, has been involved in procedure and House affairs for some time, so he did not just fall off the turnip truck. He not was told to make this statement. He believes it. He said that in the case of a legitimate lawsuit against a member where there is a pecuniary interest and so on, the member should recuse himself.
With all due respect to the member and any member in the House, what is a legitimate lawsuit? An individual can go into court, start a notice of action with a statement of claim attached, at a cost of $120, and serve someone. It is considered legitimate if it is accepted by the court with a court stamp.
My friend the member for Dufferin—Caledon, the other twin pillar of reasoning over there, said there are remedies for that because the individual being sued can go to court and get the action thrown out. He would have us and members of the Canadian public believe that all one has to do is phone up a judge, meet him at Tim Hortons and tell him the lawsuit should be thrown out because it is vexatious. It is not that easy.
My colleague failed to mention that there are proceedings in court that have taken years with respect to whether a statement of claim discloses a cause of action or not, and the threshold is not that high. For an action to survive, one just has to show there is a scintilla of a cause of action, which will or will not be proven subsequently. As for what a “legitimate lawsuit” is, I have no idea. If it is filed and served and it is in the courts, it is a lawsuit.
The next point was, what is a “private interest”? If someone is being sued for money, it is a private interest, I guess. The member for West Nova is being sued for $2 million. That must make it a very big private interest.
However, let me get back to the subject we cannot speak about, which is Brian Mulroney. He sued for many millions of dollars and eventually accepted nothing. His lawsuit against the Government of Canada was settled for costs. He did not get anything. Is that a private interest? Was that a legitimate lawsuit? Would that have put him in a conflict of interest?
I think there are many questions are being raised by the Conservatives' interpretation of what a legitimate lawsuit is and what an actual private interest is.
Finally, do the Conservatives agree that the commissioner, Mary Dawson, overstepped and misinterpreted the code? As an officer of Parliament, she is entitled to have an opinion. She is entitled to look at the documentation, the case law and the practice and precedents of the House and come up with a determination. Her determination was that liability, in the black letter law of the Conflict of Interest Code, includes contingent liability.
One has to ask oneself, as the member for Scarborough—Rouge River said, what does that mean? What does a contingent liability mean? Is it the same as a legitimate lawsuit? Or in the case of the member for Dufferin—Caledon's remarks, are we now going to include potential conflicts of interest?
Is the intention of those members in opposing these changes, which every other party seems to be onside with, to say that in the case where there is a legitimate lawsuit and where there is a potential conflict of interest all members should recuse themselves from matters before the House regardless of who the litigant is?
I do have to take issue with where the member for Dufferin—Caledon was coming from when he asked the House on May 7 if it matters who the litigant is. I ask members to look at what he said on May 7:
Yes, I did raise the issue in committee and, yes, I did think it was improper. When a former prime minister of this country is suing him for $1 million he has no right to participate in that committee.
What if we substituted someone else for “a former prime minister”? What if we substituted Fidel Castro or someone we have low regard for, collectively or individually, when someone is suing him for $1 million, he has no right to participate in that committee?
It seems to me that there is a heavy embodiment of defence of the old regime with respect to the Conservative response to this motion. All of us should be looking to having a code by which we can all live. It strikes me that “There but for the Grace of God go I” is a good way to look at this.
Perhaps there will be a day when a Conservative member, who says something controversial having to do with matters before this House, will be sued for his or her comments by a group appearing before a committee. Perhaps that member would want to, on his or her own, suggest that he or she has a defence to the action even though it is alleged that the member made the comments. The member may decide to deal with it outside. The member may decide that he or she does not need the Ethics Commissioner or the Code of Conduct to tell him or her that he or she cannot represent his or her citizens. That is what this is all about. It is about whether we are representing the people of Canada.
We are sent here as individuals to represent the people's interest and the privileges and immunities arrive out of the fact that it is the people's interests that are being protected. It is not to protect the individuals because they wear a nice suit, live in a nice house or are nice people. It is because the people of Canada in my riding, for instance, sent me here to speak out on concerns that are important to them. I will be judged, as will every member when an eventual election occurs, on whether we spoke out in the right way on the right subjects.
However, for now we are here bringing up subjects and speaking to them. To preclude a member of Parliament from participating in a committee or voting or speaking on an issue in this House is to deny the people who sent that person the right to speak. That is the whole basis of why a Speaker, when chosen, symbolically reluctantly moves to the chair and a new member is symbolically reluctantly moved into the House. It is because there was a fear of the sovereign that he or she would do something bad to the people who spoke out for the Commonwealth, for the people, in exercising their concerns.
As the first report of the Special Committee on Rights and Immunities of Members in 1977 stated:
...a fundamental right without which they would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest and the aspirations of their constituents.
It strikes me that, if this were to be challenged and defeated, we are now in a position of whether we are going to defend the old institution of Parliament and give in to trendy views of self-loathing with respect to this institution, which seems to be the debate.
I want to refer to a couple of excerpts from David Smith's book on parliamentary democracy called The People's House of Commons. It seems to me that in some cases privilege is attacked, what people say in the House is attacked, as it says at page 23, because there is a “loss of conviction on all sides in its superiority”. That is immunity in Parliament. “Hence the power of slogans such as 'the democratic deficit', multi-partisan in appeal within the Commons and popular with press, public, and academics outside” seems to take hold.
However, there is a bright note. We had the recent Supreme Court decision on the Canada House of Commons v. Vade case of 2005. I said earlier that the Supreme Court of Canada said that there was a certain immunity of Parliament, the privileges of Parliament, from the Charter of Rights. Over time, a certain loophole has evolved with respect to private matters as they respect other private person's rights butting up against Parliament's privilege.
In this decision, the court stated that the core function of Parliament is 'to keep the government to account' and it is due to this particular function (plus the legislative and deliberative ones) that Parliament enjoys rights, powers, and immunities that keep certain aspects of Parliament and its members' activities beyond the reach of the courts.
This was the first time that the concept of keeping government accountable was recognized by the Supreme Court of Canada as a foundational function for privileges of Parliament.
It seems to say that it has heightened an existing dimension with respect to privileges and immunities. It remains to be seen whether the Supreme Court in the future will incur upon the functions of independent officers of Parliament, like the Auditor General, who fall out of favour with the government of the day and whether Elections Canada, for instance, which has been beaten up lately, frankly, would survive an incursion.
In summary, I am happy to support the motion because it is to the benefit of all parliamentarians. Other than with respect to the actual wording and amendments to the Code of Conduct, which the member for Dufferin—Caledon spent most of his time speaking to, I think most members agree that Mary Dawson perhaps made a mistake in inserting the words “contingent liability”.