Mr. Speaker, I am glad to have the opportunity to speak on this Liberal opposition day. The Liberal motion seeks to amend the current code of ethics so that a member who is being sued is not deprived of his or her right to speak. Freedom of speech is indeed at issue today.
On May 7, one of our colleagues in this House lost his right to speak at the Standing Committee on Access to Information, Privacy and Ethics and in all committees examining the Mulroney-Schreiber affair, as well as in this House. He is the only member who cannot legally speak today, on this Liberal opposition day. I am talking about the member for West Nova. This makes no sense, and it is essential that the code of ethics be amended to correct this situation.
I would like to give a bit of background. On May 7, Ethics Commissioner Mary Dawson handed down a decision that gagged the member for West Nova and prohibited him from taking part in any parliamentary investigation into the Mulroney-Schreiber affair. This decision opens the door to using SLAPP suits against elected members. We know that this happens frequently in the private sector. This would enable private interests to restrict parliamentary independence and prevent members from discussing issues of public interest.
This decision comes in the wake of a complaint filed in November 2007 by a Conservative member, who asked the ethics commissioner to investigate in order to determine whether the member for West Nova, a Liberal member from Nova Scotia, had failed to meet his obligations under the conflict of interest code for members by taking part in a study by the ethics committee on the Airbus affair involving Mr. Mulroney.
In his request, the Conservative member referred to the legal proceedings instituted in mid-November against the member for West Nova by Brian Mulroney, who is seeking $2 million in damages. The member for West Nova allegedly made libellous comments about Mr. Mulroney when he appeared on Mike Duffy Live on October 31, 2007. The issue is whether the member was in conflict of interest when he took part in the work and debates of the Standing Committee on Access to Information, Privacy and Ethics regarding the Mulroney-Schreiber affair.
More specifically, it must be determined if the lawsuit against the member for West Nova means that he now has a personal pecuniary interest that might incline him to use his public role—his participation in the Standing Committee on Access to Information, Privacy and Ethics—to gain information and thus discredit Mr. Mulroney so that the lawsuit would be dropped, and he would not have to pay out the millions of dollars being claimed.
In her decision, the Ethics Commissioner agrees with the Conservative member and concludes that the potential damages award in the libel action instituted by Mr. Mulroney against the member for West Nova constitutes personal interest which could reduce the value of his assets. Given this interest, the member for West Nova should recuse himself and no longer participate in parliamentary business pertaining to the Mulroney-Schreiber affair.
The member for West Nova is now stripped of an important part of his parliamentary privilege, a principle that goes back to 17th-century England and gives members protected rights, rights such as freedom of speech and freedom from arrest, and allows the House to freely conduct inquiries and proceedings without fear of unjustified interference from the courts or the executive.
So much for the facts.
Let us move on to the interpretation of the code of ethics. We must ask ourselves: was it the intention of those who wrote the code to silence members this easily? I do not believe that the authors of the code would want members to be silenced this way. I do not believe that they would want the most important privilege for members of this House to be taken away, in whatever way and for whatever reason.
On that, concerning parliamentary privilege on the freedom of speech, I would like to quote from the book we call Marleau and Montpetit. As we will see, it is very informative. Indeed, Marleau and Montpetit is always very informative. I quote:
The privilege of freedom of speech in parliamentary debates or proceedings is generally regarded as the most important of the privileges enjoyed by Members of Parliament and witnesses that appear before parliamentary committees.
The right of parliamentarians to freedom of speech is protected by the Constitution Act, 1867 and the Parliament of Canada Act, R.S.C., 1985. Section 4 of the Parliament of Canada Act confirms that the Senate and the House of Commons each enjoy all of the privileges of the British House of Commons at the time of Confederation. This includes the parliamentary freedom of speech guaranteed by Article 9 of the British Bill of Rights of 1689.
Here is what Marleau and Montpetit has to say about parliamentary immunity:
Freedom of speech permits members to speak freely in the Chamber during a sitting, and members and witnesses to do so freely in committee meetings, while enjoying complete protection from prosecution or civil liability, or, in the case of witnesses, reprisals, for any comment they might make. Members are able to statements or allegations about outside groups or people, which they may hesitate to make without the protection of privilege. Though this is sometimes criticized, the freedom to make allegations which the member genuinely believes at the time to be true, or at least worthy of investigation, is fundamental to the privileges of all members. The House of Commons could not work effectively unless its members, and witnesses appearing before House committees, were able to speak and criticize without being held to account by any outside body.
Although the parliamentary privilege of freedom of speech applies to a member’s speech in the House of Commons and in other proceedings of the House, including committee meetings, it may not fully apply to reports of proceedings or debates published by newspapers or others outside Parliament. Privilege may not protect a member republishing his or her own speech separately from the official record of the House of Commons or one of its committees. Comments made by a member at a function as an elected representative—but outside of Parliament—would likely not be covered by this privilege, if the member were quoting from his or her own speech made in a parliamentary proceeding.
Marleau and Montpetit says more about the work of a member.
This freedom of speech is extremely important in this chamber. In fact, it is the most important of our privileges. This would be very dangerous to freedom of expression, which is recognized as necessary for hon. members to truly play their role. Parliamentary immunity is necessary for hon. members to do their work, and much of their work is done in this House and in committees.
This is strangely similar to a SLAPP suit. If the Liberal motion does not pass, it could result in a large number of what are commonly referred to as SLAPP suits, in other words, lawsuits filed with the intention of silencing people.
We know that large companies, who have not necessarily had a very environmentally conscious attitude, have been criticized by the public. These large, rich and powerful companies have filed very large suits against average citizens who do not have any money, which results in muzzling those citizens. Usually an average citizen who is sued for $1 million, $2 million or $3 million for criticizing the environmentally irresponsible attitude or behaviour of a large company ends up, despite his or her good intentions, going home and focusing on mowing the lawn and paying less attention to the environment and the conduct of large companies, even when that conduct is irresponsible.
That is a SLAPP suit.
That is what seems to be happening now. A lawsuit has been filed against a member of this House, who has lost the right to speak freely. This kind of SLAPP suit would be even more effective because it would be automatic. It would be part of the code of ethics. SLAPP suits filed by big companies against private citizens work because intimidation silences them, not because of the law.
This would give too much control to the rich and powerful. From now on, “tyrants” or perhaps even “dictators” might be more appropriate descriptions than just “the rich and powerful”. This would be a new threat against members of Parliament, a new kind of blackmail and manipulation, a new kind of democracy. Democracy as we know it would cease to exist.
I would like to talk about what the Standing Committee on Access to Information, Privacy and Ethics went through at the height of its work and hearings surrounding the Mulroney-Schreiber affair. We received lots of letters from lawyers representing all the parties involved. Many of the letters were from Mr. Mulroney's lawyers, and some were from Mr. Schreiber's lawyers. The letters we received constantly attempted to undermine our mandate. The lawyers questioned our questions and the members' conduct.
We felt manipulated. They picked apart every aspect of our mandate and continually asked us about the questions we intended to put to the witnesses, the documents we were expecting, and the names of the witnesses who would be appearing before us. In their letters, they commented on committee members every day, every week. They commented on our biases and on the kinds of questions we asked. They even invited certain committee members to dinner.
As you know, Brian Mulroney's lawyers even asked to see our draft report before anyone else, before it was even done, so they could fix it.
Given the number and tone of the lawyers' letters we received, the subjects discussed in those letters, and they way the letters addressed these issues, I began to believe that the member for West Nova would not be the only one getting sued. I fully expected every member of the committee to be sued too.
If the Liberal Party's motion does not pass today, it would mean that anyone could sue any given MP to prevent the MP from talking about a subject in which he or she is an expert. We know that the member for West Nova was very familiar with the Mulroney-Schreiber affair.
There are 308 members here; there are 308 areas of expertise. Someone could file a lawsuit—you may say it would be frivolous, and that would likely be true—concerning each one of the specialties of every member in this House, and we would no longer be able to talk about our specialty. We would have to talk about other things.
One hundred Liberal MPs could sue the Conservative Prime Minister over 100 different topics, in order to prevent him from further discussing them in this House. That makes no sense. Absolutely no sense.
If the ethics code is left as is, the door will be open to vexatious, unfair and unjustified lawsuits. That makes no sense and would be the complete opposite of democracy, because it would make it possible to easily, capriciously, frivolously or even fraudulently silence any MP.
And then there is the matter of compensation. Imagine that a lawsuit had been able to silence a member of this House—although this is currently the case. Nevertheless, imagine if, in the future, a member were denied the right to speak on a certain topic, and that the lawsuit were dropped the following day, as soon as the subject blew over or the case was lost.
What compensation could be given to a member silenced for days, weeks, even months? If Mr. Mulroney loses his case, what compensation will the member for West Nova receive for the real loss of his freedom of speech since May 7, 2008?
We have to give serious thought to these matters. The Conservative Party must think carefully about opposing the Liberal motion and it must consider the compensation that it would give to a member who is deprived of his freedom of speech. Can you imagine that? What is the loss of an MP's freedom of speech worth?
I do not wish to answer this question, Mr. Speaker. I will leave it to your imagination and I am certain that you will be on the money.
In conclusion, I find that the code of ethics, in its present form and as interpreted by the ethics commissioner, will deprive members of a power and a privilege— freedom of speech—while giving a new power to irresponsible plaintiffs. The rich and powerful will become ever more influential and tyrannical. As I mentioned earlier, it is possible that any of the members could be sued over any matter at all, to prevent them from speaking out.
The Bloc Québécois must support the Liberal Party's motion in order to restore the freedom of speech of the member for West Nova and to protect that freedom for all other members who could be sued in future.