Debates of June 5th, 2008

Opposition Motion — Conflict of Interest Code

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Mr. Speaker, let me start by reviewing the text of the motion itself.

The motion contains a great deal of explanatory material, but ultimately it proposes to add a subparagraph (b.1) to Section 3(3) of the Conflict of Interest Code, which would read a bit differently than it does now. I will read what it would say.

Section 3(3) deals with whether and under what circumstances a member is considered to be furthering his or her own private interests and therefore potentially in a conflict of interest situation. It reads right now:

For the purpose of this Code, a Member is not considered to further his or her own private interests or the interests of another person if the matter in question

a) is of general application;

b) affects the Member or other person as one of a broad class of the public; or

c) concerns the remuneration or benefits of the Member as provided under an Act of Parliament.

The proposal is to add another section, which would be numbered (b.1), if the matter in question “consists of being a party to a legal action relating to actions of the Member as a Member of Parliament”.

Essentially if members are involved in some kind of legal issue that has arisen because of an action they have taken in their capacity as members of Parliament, not their role within the parliamentary precinct within the areas where privileges are already protected, outside of the parliamentary precinct, or outside of the protections that are offered to us in debates in this chamber and in committees of the House, at that point they would continue to be protected. It amounts to a very substantial increase in parliamentary privileges. The question we ought to be asking ourselves is to what degree this might cause the rights of others in society potentially to be infringed upon, given that this is not the only process at work.

There are really two conflicting processes at work here, both of which are entirely legitimate for their different purposes. The first one is the actions that we take as members of Parliament, either in the House of Commons or in committees. That includes investigations into all kinds of matters, including the matter that was under review in the ethics committee last November, the Karl Heinz Schreiber-Mulroney hearings, and any other topic at which we are looking.

In that role certain rights are set aside for us in privileges. It is worthwhile remembering these privileges relate to our share in carrying on the business of Parliament. They are not our privileges, per se. They do not pertain to us as members of Parliament. We sometimes talk about our privileges, that our privileges were violated in this manner and could we please get a hearing before the procedure and House affairs committee as to the violation of our privileges. Strictly speaking, our share in the privileges that the House has in order to conduct its business were violated and only when the business of the House is in some way limited are these privileges being violated.

I learned this myself about a year ago. I thought my privileges had been violated because some members of the House had taken personnel records, including my confidential personal records from when I was a staffer, had rifled through them and then displayed part of them on national television because they thought it would get a good media hit. They then put it on the Liberal website. I thought this was an abuse of my privileges. I think it was actually an abuse of my rights as a citizen to expect some privacy. However, in truth, in the end, the Speaker was correct when he ruled that this was not a violation of my privileges, per se. Therefore, we have to be careful in understanding what privileges are and in the fact that while they are vitally important, they are very limited in their nature.

At the same time, the rest of the world has certain rights. Parliamentary privilege ought not to intrude upon those rights. There are legitimate processes that Parliament can intrude upon, including court proceedings.

The argument presented here by the member for Scarborough—Rouge River and by the other persons who have been advocating on behalf of his motion is essentially that court proceedings, as the rules are currently written and as the Conflict of Interest Code is currently written as a part of the Standing Orders, effectively can intrude upon the privileges of members.

The reverse can also potentially be true. It is for this reason that we ought to make a real effort to not hold separate hearings when something is before the courts, and frankly, I think we have been lacking in this regard in the current Parliament. We call this the sub judice convention. It is not black letter law. It is a convention.

It was on this basis, for example, that many people on the procedure and House affairs committee, including me, objected to efforts to have independent hearings into the legal proceedings between a number of Conservative official agents and Elections Canada relating to election expenses that Elections Canada was refusing to rebate.

In fact, I made quite a long point of order on this point to the chair of the committee last August or September. He ruled in my favour, but subsequently his decision was overturned by a majority of committee and things have proceeded to disorder from there. However, the point to be made here is that bringing evidence before the House of Commons can disrupt proceedings in court.

My colleague who spoke just recently suggested otherwise and in fact suggested that there is no danger that court proceedings can be disrupted by events that unfold here. I would disagree with him and so would the Ethics Commissioner, Ms. Dawson, who said on page 20 of the English version of her report into the matter regarding the member for West Nova that the member “contended that, even assuming he could obtain information” through the committee hearings at the ethics committee “that would be useful to his lawsuit, that information could not be used in the litigation because it would be subject to parliamentary privilege”.

This essentially is the point that the member for Windsor—Tecumseh was making just a moment ago. The commissioner continued and said, “This is true, but, as discussed in relation to section 12”, of the MP Code of Conduct, “information revealed during the committee discussions could lead to avenues whereby the same information could be obtained independently of the committee proceedings”.

In other words, he really could have a major impact upon these hearings. Essentially what she is discussing and what we are discussing is a version of the sub judice convention, which has actually found its way, perhaps accidentally, into our Standing Orders via subsection 3(3) of the Conflict of Interest Code.

I think we ought to act cautiously in dealing with this matter. Let me suggest a few things.

First, thematically we are striking a balance between two conflicting legitimate processes that sometimes butt heads. When one faces this sort of situation, one ought to act as narrowly as possible. One ought to try to design whatever adjustment to the rules one is doing with the goal of dealing with the specific wrong that one thinks has occurred.

Not everybody here agrees that the member for West Nova has been unjustly damaged by this situation that pertains under the current code. Some do. Let us for a moment step into the shoes of the people who say that his rights ought to be protected and privilege ought to be expanded to cover a particular right that right now has no protection. If one makes that assumption, one ought to design the language as narrowly as possible in the change to the code in order to not cause restrictions on legal proceedings in the other parallel process that could be problematic.

I note, for example, that as an alternative to what the member for Scarborough—Rouge River proposed, there was a motion proposed by the member for Winnipeg Centre in committee, which would have said effectively that the definition of conflict of interest would not apply to individuals who are defendants in a defamation lawsuit. It was quite narrowly constructed. I believe that motion was passed by the committee, was sent here and was found to be out of order because of the fact that it was essentially not the purview of that committee to deal with this and ought to be dealt with by the procedure and House affairs committee.

That motion is more narrowly constructed. Had that motion been adopted, it would not face the danger under the current very broadly constructed proposed amendment to the code that is going to allow protection when the member of Parliament in fact is engaging in or is causing litigation against someone else.

Lest we think that does not happen, it very much does happen. The member for Ajax—Pickering engaged or at least said he was going to engage in a lawsuit against Ezra Levant on the basis that Ezra Levant had written an article in his publication, the Western Standard, pointing out that the member for Ajax--Pickering had been complicit in private personnel records, including my own, being kept, effectively stolen, and held in the Liberal research offices, scoured through and read in detail. I know this because I went through my own documents afterwards and found Post-it notes attached to them, with comments, which then to some degree were displayed on national TV.

For having raised that, Ezra Levant faced a suit. He would be in a situation, if this rule is passed, whereby the member for Ajax—Pickering is able to engage in actions in the House which would prejudice these proceedings even though he is the one who instigated the lawsuit. That is a very serious matter. Although he is a particularly litigious member, he is not the only person who engages in this sort of thing. The amendment to the rules that has been proposed by the member for Scarborough—Rouge River could have been drawn more narrowly so as to avoid this danger.

Let me suggest another change that could have been made and would have been narrower and therefore safer. Section 13 of the code could have been rewritten so as to narrow down the danger. This was mentioned in the Ethics Commissioner's report as being an area where the member forWest Nova was found to be in violation of the code because he had violated section 13. Section 13 now reads:

A Member shall not participate in debate on or vote on a question in which he or she has a private interest.

This is actually something that I raised in my question to the member for Scarborough—Rouge Riverafter he gave his initial speech. Perhaps there is merit to narrowing that. Voting on a matter is very different from engaging in cross-examination and the extraction of evidence, which could have the effect, as the Ethics Commissioner noted, of causing the legal proceedings in question to be prejudiced.

There again, we could have looked at making an amendment to section 13, saying effectively that a member could vote and maybe even speak in the debate but not actually engage in cross-examination in committee. None of that is explored in this relatively unsubtle motion that is before the House.

I think this points to the need for having a little more time to look at this material and the proposed change and see if there are alternatives that are less aggressive than what is being proposed here. This is the merit of going to the Standing Committee on Procedure and House Affairs.

I know there are concerns that the committee is not sitting currently. There are ways around that. The other side could stop objecting to having the member for Cambridge sit as the chair of the committee and stop trying to dragoon the member for Oxford as chair of the committee when he does not want to serve on the committee. The committee would be up and running again and we could then deal with this matter. That, I think, would be a very simple way of starting to review this.

The Ethics Commissioner specifically mentioned in her report that she had gone to other jurisdictions, other provinces around the country, and asked their ethics commissioners how they handled this kind of situation and had drawn on their experience and the precedents from those other jurisdictions. We do not have the same opportunity.

However, if we had hearings, we would be able to call in witnesses, listen to what they have to say and make such adjustments as are necessary to find the appropriate balance. That is not going to happen, unfortunately, because of the way this motion has been introduced: in the House as opposed to in committee.

The question arises, then, why is this being done this way? There is no generalized crisis. There is a specific problem, some members would argue, relating to one member and one set of hearings. I could editorialize on that, but let me just finish my thought.

The Ethics Commissioner suggested that there might in the future arise a problem where litigation arises more widely. If that were to occur, this matter could be dealt with at that time.

I think a few things have been said here that a common sense interpretation of the facts would not bear out. I would just mention that the member for Windsor—Tecumseh, in his comments a moment ago, suggested that nuisance suits are unlikely to be dismissed very rapidly, that it takes a certain amount of time, which I accept. I think there is some validity to that comment.

However, if we tie that in with a statement made earlier that perhaps big oil companies would go after the NDP and would sue each member individually as a way of shutting them down and making it impossible for them to vote, why stop with that nightmare scenario? Perhaps every interest group in the country will find ways of looking at the voting records of members and simply sue everybody who is on the other side of the issue from them, thereby causing to pass all kinds of crazy legislation that is not in the interests of Canadians.

This is clearly preposterous. That kind of nuisance suit would be dismissed immediately. I really do not think there is the great danger that is said to exist by some members. Also, if that danger were to arise, we could then have a debate such as this one, in which we would pass the appropriate amendment, thereby eliminating that particular danger. However, I would argue that it is a danger that does not actually exist and therefore there is no cause to deal with it.

Pre-emptively acting against some danger that nobody had ever thought of before seems a bit over the top. Acting by means of a very aggressive, wide-ranging change to the rules seems even less appropriate. Doing so without the appropriate committee hearings and without hearing from, among others, the Ethics Commissioner herself, in whom I assume the member for Scarborough—Rouge River has confidence, as he mentions it in the motion, also seems peculiar. On this basis, I would encourage all members to vote against this motion.

I would encourage either the member for Scarborough—Rouge River or perhaps the member for West Nova to cause his colleagues to drop the objections they have to the procedure and House affairs committee running appropriately and allow it to start doing its business again. This could be one of the very first orders of business if it is brought before the committee and a majority of members thought this was the appropriate course of action.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, while I thank my hon. colleague for his remarks, I believe he somehow misses the point of all of this. I think this motion has to be seen not as an aggressive act by the opposition but really as a reaffirmation of an age-old and very hard-fought right of parliamentary freedom. This freedom is required to ensure that all members are free to serve the needs of their constituents.

How are we to perform our duties without absolute freedom of speech? We cannot separate the two. If a lawsuit is brought against a member that somehow silences the member from speaking, then we are not able to perform our duties.

What we are trying to do here with this motion is uphold this tradition of parliamentary freedom. It is an absolute right. I would think that all of us in this House would want to fight for this to ensure that we maintain this right.

I would take exception to what my hon. colleague says and ask him if he would not in fact see the importance of this hard-fought right that we as parliamentarians have, this absolute freedom of speech, so that we can in fact serve our constituents. We are not serving our constituents if we cannot do that. I would ask if he could actually clarify that.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Mr. Speaker, my colleague has a point in that I probably should not have used the word “aggressive”. What I should have used is some phrase like overly broad or excessively all inclusive, or something of that nature in the criticism I was raising of the way it is written. That is why I took the time to contrast it with the motion proposed in committee by the member for Winnipeg Centre, which I think was narrower and therefore eliminated the kind of lawsuit that has been undertaken. I gave the example of the member for Ajax—Pickering and his lawsuit.

Right now, under this proposed motion, he has some protection that I think would be inappropriate, given the fact that he is not actually making a defence.

I would point out that the Ethics Commissioner, and I refer to page 20 of her report, made the point that information brought up in the committee hearings in this case could actually have an impact on the lawsuit itself. Again, I am making a series of suggestions as to the kind of narrow wording one could use, wording that refers specifically to this kind of problem could have been put in here, and I do not think anyone would deny that the concern she raised is a legitimate concern.

Trying to find a way to answer the concerns she raised and at the same time deal with whatever other concerns exist here is a reason for balancing it. I think there is a bit of absence of a balancing act here.

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

Mr. Speaker, I would just say, “Oh my gosh”, God forbid that something that happened in this place would have an impact on something that happened out in the rest of Canada. Things that happen in this place are supposed to have an impact on what happens outside. That is the reason why we have the privilege and free speech.

The member, in his interesting remarks, suggested, and he actually said that the passage of this motion would result in an expansion of the privilege right, of the right of free speech, and I did not quite understand that. I do not agree with him if he believes that to be the case, particularly in light of subsections 4(a) and 4(b) of the Parliament of Canada Act which strictly limits our privileges, including the right of free speech, to those in existence at the time the Constitution Act was passed.

I will read the section for the record, if it is useful:

4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise

(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and

(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.

It is actually legally impossible for us to actually expand our privileges, including the free speech right, and so I would ask him to perhaps respond to that and maybe adjust his suggestion that we were so expanding them.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Mr. Speaker, I will begin by commenting on the initial words of the member for Scarborough—Rouge River. He said, “Oh my gosh”, we might actually have an impact on something out there, we would not want that to happen. I am being sarcastic, obviously, but there are things that we do want to have an impact on. We pass laws and they affect all kinds of things, the price of milk and the amount of money that seniors get in pension benefits and so on.

That is all good but as for having an impact on the proceedings of individual court cases, that is actually an area where we ought not to have an impact. That is the reason for the existence of the sub judice convention. In that regard, he must have just misunderstood what I was saying because he certainly would not want, I would think, to do that.

Basically, with regard to the observation made about the Parliament of Canada Act, it seems to me that he may be making the argument that his own rule could be illegal and could be struck down if it is found to exceed what the Parliament of Canada Act proposes. I do not know why he would want to propose a change to the Standing Orders, which might be found to be in violation of statute law, and therefore result ultimately in some kind of court action that would have this struck down or read more narrowly, perhaps in the manner that I had suggested it be written in the first place.

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

Mr. Speaker, when we go to a committee, one of the favourite lines of an opposition party is that there has been no consultation, that the minister has not consulted, has not talked to anybody, and is just trying to ram this through.

Well, this has been raised in this place. The member for Scarborough—Rouge River has said he has consulted with a few people and has consulted with some very academic people. I am sure he has.

This matter is so serious to this place, surely to heavens we are not just going to talk to parliamentarians, surely we are going to look to other people, people in ethics, the Ethics Commissioner, and legal people. Why would we not do that? The only place we can do that is in the standing committee.

My question to the member is: What does he think we should do as far as obtaining further expert advice as to what we should do with this particular motion?

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Mr. Speaker, I would suggest that either this motion or the subject matter of this motion be sent to the appropriate committee, which of course is the procedure and House affairs committee, and it should be dealt with there.

I do not think there is a crisis or a panic in that this is not a widespread problem. I would point out that not passing this motion right away would presumably have the effect of not granting the member for West Nova retroactive immunity from the lawsuit that he is going to be getting should this pass, which is a very nice thing to have, indeed.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, I want to thank the House for allowing me the opportunity to speak to this motion this afternoon.

I will be sharing my time with the member for Toronto Centre.

This motion involves the basic freedom of speech enjoyed or shared by all members of Parliament and a recent ruling by the Ethics Commissioner of the Parliament of Canada. Again, freedom of speech has been with us for many centuries now. It is well understood. It is consistently applied. It is part of what I consider to be parliamentary law. It is part of our Constitution. It was adopted when our Constitution was drafted in 1867 and the previous speaker referred to that, the member for Scarborough—Rouge River.

I will be the first to admit that there have been certain instances in this assembly where that right has been abused.

That is as opposed to civil law, where if a member of Parliament, outside the chamber, says something that is not true, which is defamatory against another member of the public, that member is subject to the same obligations, the same sanctions, and the same rights as any other person.

Those are the factual circumstances that led up to this particular investigation, apparently. I do not know all the facts but the member for West Nova said something outside the chamber that was offensive to a former prime minister. A lawsuit either has been threatened or has been started, and again that all took place outside the chamber.

A complaint was made to the Ethics Commissioner. The Ethics Commissioner adjudicated that because of the real or threatened lawsuit, the member for West Nova can no longer participate in the debates of this assembly concerning that particular issue.

I think that is wrong. It just ignores parliamentary law. It ignores the Constitution of this country, but having said that, the Ethics Commissioner, in a ruling where she knew she was opening a can of worms, invited Parliament to make the amendment that we are making right now.

I should also say that this rule is not a Canadian rule. It is enjoyed by all Commonwealth countries, including Great Britain, New Zealand, Australia, et cetera. However, we have to consider the ramifications for anyone who wants to argue against this motion, the ramifications to this assembly and the rights enjoyed by the members of Parliament.

If that ruling of the Ethics Commissioner were allowed to stand for any length of time at all, we would all receive these letters of libel, and I have received them and I have written them. They are very easy to prepare. One just writes a letter stating the facts, that one is offended, that one is going to seek damages, general damages, special damages, pecuniary damages, costs, and that an immediate apology is sought.

The letter is generally no more than a page or a page and a half. I would think one could get one done tonight for $50 if one were so inclined, and could have it issued by anyone in the assembly by 10 a.m. tomorrow morning.

Once that is done, if we were accept this ruling to its nth degree, that would mean the recipient of that letter could no longer participate in the debates of this assembly concerning that particular issue.

The abuses, if that were allowed to stand, are unimaginable. We could actually shut down debate on any issue by issuing these letters. The manufacturing sector could have a letter on the Minister of Finance's desk tomorrow morning complaining about statements that he made, and unfortunately, he would not be able to speak tomorrow about the crisis in our manufacturing sector.

The people who own and operate the tar sands could have a letter of complaint about certain remarks made about our Minister of the Environment, and then unfortunately, he would be shut down from participating in any of the debates or deliberations concerning that particular issue, and it goes on and on.

If anyone were to suggest that this is not a very serious issue and suggest that this should not be dealt with immediately, I would submit they are wrong.

A number of academics have spoken to this issue, and I have read at least six or eight columns of their comments. All of the academics unanimously agreed that this decision was either wrong, or, if it was right practically, it should be immediately amended so the rights, as we understand them, are restored so there is no disagreement.

I am not aware of anyone, except certain Conservative members of Parliament, who would disagree with that. I am surprised we are having this debate. I thought the motion would have gone through by consent but we are here today having a debate.

I have sat here for the last two hours listening to the arguments against the motion and most of it boils down to the fact that the Conservatives really do not have any kind of rational or logical argument against the motion, other than to suggest that it requires more debate because it is a serious issue, and I agree.

However, they then make the argument that the last speaker made, that it should be referred to the Standing Committee on Procedure and House Affairs. I also agree with that argument but that committee has been basically shut down for the last seven months, like a number of other committees in the House.

What went on in that committee was that the majority of the committee voted to have hearings on the in and out scheme. Obviously, the Conservative members did not want to deal with that so they filibustered. They read books, magazines and transcripts. That went on for seven months so eventually half of the committee was shut down. That would be a situation if it were one committee, but we have a situation where at least four committees are on the very same basis.

Once an issue comes before the committee, it is debated, deliberated and voted upon. If the Conservative leadership in the Prime Minister's office does not want it to go ahead, they filibuster the committee, which is what happened yesterday in what I believe would be the Standing Committee on Government Operations. That is suspended also.

That is what is behind it, which is why it has now come to the House for debate and a vote. I understand that every member of Parliament, except the Conservative members who have been told not to vote for it, will be voting for the motion so that the issue can be resolved as soon as possible.

The argument the Conservatives make on why they do not want to deal with these things when they go before the committee is that they say that it is the tyranny of the majority. I do not understand that. That is how they are in power in a minority government. They are here representing 36% of the people. When a motion goes to committee, it receives the motion, debates it and rules on it but Conservatives will not go along with it, which is why we are in this position. Again, we are talking about three, four or five different committees of the House, which is a very unfortunate circumstance.

The previous speaker made a comment that I found troubling. The member said that the committees of Parliament should defer to the courts or other adjudicative bodies. I have been in the House for eight years now and that is not the way the system operates and it is not the way the system should operate.

I have sat on the public accounts committee when we went through the sponsorship hearings. We certainly were not going wait for a court hearing to go on for seven, eight or nine years to adjudicate. Every last issue involving those is still going on six years after the fact. I would think it will go on for another six years.

If we ever get into the situation where this assembly and the committees of this assembly thought for a minute that they had to wait for every court decision to be concluded, every appeal to be exhausted, every other avenue of application and injunction, we basically would not do anything. It would be so simple for anything to be gutted from the committee. All someone would need to do is make an application to the court. We all know it would be tied up for at least three or four years and nothing would happen in Parliament. I did find that rather troubling. It offends the law of Parliament and the supremacy of Parliament.

This motion should receive the support of most members of the House. It should be concluded soon and, hopefully, we can move on.

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

Mr. Speaker, I have to hand it to the member for West Nova. He is obviously a very popular fellow because he has persuaded his colleagues in the Liberal Party to bring this motion forward. He was found guilty of three counts of violating the ethics code by the Ethics Commissioner of Canada.

I would like to ask the member a question about a portion of the motion brought forward by the member for Scarborough—Rouge River. Part of it says that he wants to refer the inquiry report concerning the member for West Nova back to the Conflict of Interest and Ethics Commissioner for reconsideration in light of the amendment to the code. In other words, he wants us to change it so it will make everything that he did legal and then we will send it back to the commissioner and ask her to hear it again. Is that appropriate?

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, it is my understanding that everyone in Canada, every member of every party, except the Conservative Party, every academic and every university professor who has studied or read about this issue agrees with this particular motion. If my friend across knows of any of the 34 million people who live in this country who do not agree, he should please tell us now because that is not my understanding at all.

The question at the end was that we wants to make right what the member for West Nova did. That is not at all what we are doing. I do not see, at this point in time, that this is all that relative to the member for West Nova.

What we are saying in this motion is that if members receive a letter, a notice or whatever, it does not immediately take away their rights as members of Parliament to come to this assembly or go to a committee of the House and participate in the debates that surround the concerns of this nation.

This motion goes right to the heart of parliamentary law, it goes right to the Constitution of this country and any watering down would be very unfortunate.

However, going back to what I said before, if the member across knows of anyone who disagrees with this motion, anybody at all, I would ask him to please say so now.

I have one other point while I am on my feet. I cannot understand how anyone could argue against this motion when we have a situation in this assembly where the Prime Minister has started a lawsuit against the Liberal Party of Canada. If we interpret the ruling the same way as Ms. Dawson has, then the Prime Minister cannot even appear in the House. He should not be here. In fact, if we took this to its nth degree, the Prime Minister, unfortunately, and I believe I am right in this interpretation, would have no choice but to resign his position as the Prime Minister of Canada, which would be unfortunate, but that is the way I interpret that ruling.

[Brent St. Denis, Liberal, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, I listened with care to my colleague from Charlottetown and he made a point of saying that the Ethics Commissioner, Ms. Dawson, was actually trying to be very helpful but that she was apparently constrained by the existing rules.

We should be thanking the member for West Nova for providing all members on both sides of the House with an opportunity to examine more carefully what appears to be an anomaly in the rules, which has allowed for what I would call her inadvertent decision.

I am wondering if my friend from Charlottetown could talk a bit more about the opportunity that this provides us to clear up an error that is not really helping any one particular member or another. It is for all members for the future.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, I am not going to say that it was an error. The Ethics Commissioner took a narrow interpretation. I believe she ignored the Constitution but that is just my opinion. However, she did invite the House to make the amendment and I am sure she is watching this debate and would certainly agree with the motion.

[Bob Rae, Liberal, Toronto Centre, ON]

Mr. Speaker, I rise in my place because I have been listening with interest to the debate and the comments of my friend from Orangeville and others who I have known in other assemblies and other places and since my existence in other assemblies seems to have become a matter of some interest.

I do want to reflect on this issue since I have been a member of this place and a member of the Legislative Assembly of Ontario and having spent the better part of my public life in elected assemblies of one kind or another. Obviously all of us read the decision of the Ethics Commissioner with a great deal of interest and a great deal of concern.

I want to state for the record that there is a lot of talk on the other side of someone having been found guilty. What the commissioner in fact found was that there was a contravention of the code, as she interpreted it, made in good faith by the member for West Nova, who is a parliamentarian of great standing and goodwill, and that is recognized.

I think all parliamentarians would recognize that there is a problem with making the connection between a “liability”, which arises, according to the judgment of the Ethics Commissioner, of any lawsuit and saying that any lawsuit gives rise to a liability; the mere existence of a lawsuit gives rise to a liability; the liability gives rise to something that is called a private interest; and the private interest then creates the conflict.

With great respect to the Ethics Commissioner, I think that the House itself has to now give real consideration to this. I do not think there is any argument with the efforts that the commissioner has made to be faithful to the code as she has seen it. However, I do have a great deal of difficulty with the notion that any libel suit that is carried out against a member of Parliament for whatever purpose, or with whatever intention in mind, should necessarily have the effect of denying that member the ability to carry on his or her responsibilities as a member of Parliament.

There is a brief reference in the commissioner's judgment to the possibility of a chilling effect but, with great respect to the commissioner, that chilling effect has been somewhat underestimated.

It is important for us to be as precise as we can as well about the exact recommendation that is being made by my colleague, the member for Scarborough—Rouge River, whose interest in these matters is extensive and whose knowledge and interest in questions of the privileges of members of Parliament is quite extensive.

What we are simply asking is that there be an exemption when it comes to the question of a private interest and that exemption would consist of being a party to a legal action relating to actions of the member as a member of Parliament. It is important for the public to understand that if any of us have private businesses and we are sued in the course of those private businesses, that issue that should becomes an issue of concern in terms of declaring what one's private interests are.

However, to assert that because the member for West Nova was sued by the former prime minister of Canada because of comments he allegedly made on the Mike Duffy Live program, in direct connection to the events surrounding the relationship between the former prime minister and Karlheinz Schreiber, which has been a matter of direct interest to all of us and a direct interest to the member for West Nova in his parliamentary responsibilities, and the idea that the very existence of that lawsuit, whatever its foundation may happen to be, should itself prevent the member for West Nova from carrying on his parliamentary responsibilities, he should recuse himself from any votes and recuse himself from any participation in discussions affecting this question of broader public interest, I have some real difficulty with that and, frankly, surprised by the members of the Conservative Party. This is not an issue that is related to the Conservatives, the Liberals, the New Democrats or members of the Bloc.

It is not a partisan issue. It is an issue that affects all of us as members of this House. And that is why we must speak openly about the possible consequences of legal action against a member because of his or her work. It could compromise members' abilities to exercise their own judgment as well as their full participation in public debates, which is an important aspect of the lives of all members.

As opposed, perhaps, to some of my other interventions in this place, this is not an intervention that is made by pointing fingers at the other side. It is made by simply asking this question. Is it not at least a possibility that the effect of this ruling would be to say to businesses or others, who are affected by debates in the House, that if they want to silence member of Parliament X or member of Parliament Y, there is a very simple way to do it, and that is simply to sue the member for something either he or she allegedly said or did not say?

In the eyes of the commissioner, the simple existence of the lawsuit, whether it has been heard by a court, according to the commissioner, creates the liability, which creates the interest which creates the need to disclose and which, in the case of the member of West Nova, creates in her judgment the need for him to recuse himself from any further discussion.

I believe that this touches on the responsibilities of members of Parliament and, frankly, touches on the question of how certain powerful interests, which can afford lawyers, lawsuits and to do this, can look at this ruling and say that here is the way to shut down, here is the way to stop so and so from saying anything and here is the way to stop so and so from participating in the debate.

What we are saying in our recommendation, in terms of the amendment to the code, is where lawsuits arise, not from our private activities, or our business activities, or our commercial activities, or anything else we might be doing with our lives, but from the exercise of our responsibilities as members of Parliament, we should not be prevented from participating in the life of Parliament as a result of those lawsuits.

The amendment proposed by my colleague, the member for Scarborough—Rouge River, is reasonable. It should be discussed by all members of Parliament and should be dealt with on that basis. We need to spend some time this evening reflecting on this as we go forward.

I am somebody who has been sued, although I have no live ones going on at present. I can assure everyone it has taken place in the past, as it inevitably does in this hurly, burly life that we lead in politics. It is a simple fact of life that these things happen.

If we are to do our jobs, it is very hard for us to see how the commissioner's ruling can be maintained as a ruling that will, in a sense, control our daily lives. I think there are charter implications for what the commissioner has said. She is stretching the definition of what a real liability is. Anybody suing somebody, could say now there is a liability, not knowing whether that claim is real, or serious or based in fact.

It would be wiser for us to say that where we are exercising our duties as members of Parliament, the mere existence of a lawsuit against us as members of Parliament for doing our job as members of Parliament does not create a liability and therefore does not create a conflict.

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

Mr. Speaker, I listened to the member for Toronto Centre talk about this issue. After listening to the debate all day long, really what this motion is all about is the Ethics Commissioner made a decision which the Liberal caucus does not like.

Under the system we have with a minority government, the majority of opposition members rule the day. Not only are we going to change the rules, but they are going to make everything retroactive. They are going make the Ethics Commissioner hear this thing again under the new rules, even though she heard it under the old rules, so the member for West Nova will be exonerated.

I hope the member for Toronto Centre would admit that. Quite frankly, the allegations that members in this place are losing their freedom of speech is absolutely a lot of bunk. The member knows that is not true. He knows what this is all about. It is to free the member for West Nova.

[Bob Rae, Liberal, Toronto Centre, ON]

Mr. Speaker, with great respect to my colleague from Orangeville, sometimes when I say something, it is not because I have some other intention. It is because that is what I actually believe. I actually believe there is a problem created when a libel suit prevents a member from doing his job. I actually believe the way to settle libel suits is to settle them in court. Of course they are public, of course they are known, of course they are disclosed, but that should not prevent a member from participating fully in the life of Parliament or from exercising his or her judgment.

The purpose of a conflict of interest code is to prevent real conflict. It is to prevent situations where interests are either not disclosed, are secret or are not there, or, for example, when one benefits personally from something which the member has not disclosed. That is the purpose.

This is not some partisan thing. I suspect there will be members of the New Democratic Party, of the Bloc and others, and I would hope individual members of the Conservative Party, who would understand, with great respect to the member, that free speech is not just bunk. It is a reality at which we have to look. Yes, the interests of the member for West Nova have been affected in terms of his duties in the House.

You said the member for West Nova has be “exonerated”. First, he was actually exonerated by the Ethics Commissioner. What she said was, and you have not had the courtesy to quote this in the House in all of your submissions today—

[The Acting Speaker, Royal Galipeau]

The hon. member for Toronto Centre knows about my intolerance of using the second person.

[Bob Rae, Liberal, Toronto Centre, ON]

I know that, Mr. Speaker, and I will correct it right away. The member should have stated what the commissioner said. She said that the member for West Nova always acted in good faith. Because the member for West Nova always had acted in good faith, I do not think it is right or appropriate for any member of the House to talk about him having been found guilty of something. There is no guilt involved.

It is a contravention of the code, which was caused unwittingly, and it could have happened to any one of us. I do not think any one of us ever thought that the implication of the code was as soon as someone stood up to sue us that suddenly we would prevented from participating in the rest of debate.

However, when the member talks about exoneration, the member for West Nova still faces a very powerful lawsuit from a very powerful and well financed individual, an individual who he has to deal with as a citizen of Canada. He will deal with that in whatever way he can and he will deal with it as best he can.

The suggestion that the existence of that lawsuit should prevent the member for West Nova from participating in the parliamentary life of this Parliament and from participating in debates is, on balance, a judgment which is simply too harsh. It is one that members should state their views to the commissioner as to how they feel about whether in their judgment this necessarily is the kind of thing we intended.

I do not believe we ever intended that the existence of a lawsuit relating to our responsibilities as members of Parliament would prevent us from participating in parliamentary debate and decisions. This was never our collective intention, and I do not believe that the decision can be allowed to stand for that reason.

[Richard Nadeau, Bloc, Gatineau, QC]

Mr. Speaker, I very much appreciated the speech the hon. member for Toronto Centre just gave. I know he is new to this House and I think he has a great deal of potential here. We will continue to listen to his speeches now and again to see if he stays on the same path.

Of course, today's debate has to do with the freedom of speech of elected members of the House of Commons. It is an extremely important issue that forms the very foundation of the parliamentary system and our work as legislators here in the House.

We all know that, since May 7, 2008, the hon. member for West Nova has lost his right to free speech within the Standing Committee on Access to Information, Privacy and Ethics as well as in the House of Commons, because of a decision by the Ethics Commissioner in the Mulroney-Schreiber case.

Incidentally, I will be sharing my time with the hon. member for Argenteuil—Papineau—Mirabel.

It is important, and I said this from the outset, for members to have freedom of expression to do their work as legislators properly. This right goes as far back as the English Bill of Rights of 1689. Mr. Speaker, I know that you were certainly among those who thought of the Bill of Rights. In this House, this goes back to another time, namely the BNAA, 1867. I am not talking about AA as in Alcoholics Anonymous, but the Constitution Act, 1867 and the Parliament of Canada Act.

It is extremely important for members to be able to work for the advancement of society as it evolves and in accordance with the duty we have to our electors.

Parliamentary immunity is necessary for members to be able to do their work. We have to avoid allowing a lawsuit against one hon. member from becoming a way to prevent all elected members of the House of Commons from doing their work as legislators. Can we say that enough?

Imagine if the rich and powerful sued the 308 members of the House of Commons with the evil intention of preventing them from speaking and legislating one way or another. We have to avoid that scenario. We have to prevent the intimidation and manipulation of the democratic process by such suits against elected members. Imagine 180 members of the opposition suing the Prime Minister to prevent him from speaking on a certain subject. We cannot allow that to happen.

We are in a similar situation with respect to our colleague in this House, our Acadian friend, the hon. member for West Nova. As you can see, Mr. Speaker, we have to prevent such a situation from happening. I hope you will be among those who vote in favour of the motion presented by the Liberal Party of Canada, as the Bloc Québécois will be. We know that you are a fine democrat and that you are in favour of the principle that I have just outlined.

The Bloc Québécois is in favour of the motion. We must protect the freedom of speech of parliamentarians and those they represent. We absolutely must keep the door closed on the use of SLAPP suits against elected members. The ethics commissioner herself opened the door to parliamentarians by writing, on page 24 of her report:

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 [this is still the ethics commissioner speaking] 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.

The ethics commissioner was already expressing concern. Unfortunately, this happened, and fortunately, we are going to work together to correct this situation.

The opposition members responded by adopting a resolution in the Standing Committee on Access to Information, Privacy and Ethics. The Conservatives, as expected, opposed this resolution and prevailed with the Speaker of the House on a technicality—I repeat, on a technicality.

After trying to muzzle the parliamentary press gallery, women's groups and minority groups funded by the court challenges program, the Conservative government is now trying to gag the opposition, which is deplorable.

Moreover, in the wake of the Cadman affair, the Prime Minister threatened to sue the Liberal Party of Canada and its leader, the member for Saint-Laurent—Cartierville, as well as the Liberal members for Etobicoke—Lakeshore and Wascana. In the end, he sued only the Liberal Party of Canada. If he had taken legal action against the three parliamentarians, however, they would not have been able to continue asking questions about the affair. That is what is deplorable.

In addition, the Liberal member for Ajax—Pickering is being sued for libel by Chris Froggatt, chief of staff of none other than the member for Ottawa West—Nepean and the current Minister of the Environment. The latter is facing allegations of political interference in the Ottawa light rail project, a matter currently being reviewed by a parliamentary committee.

This is a fundamental issue. In this case, the ability to carry out his legislative work must be restored in full to the Acadian member for West Nova, especially since the ethics commissioner pointed out that he acted in good faith.

In view of this situation, we must absolutely ensure that we uphold the fundamental principles making it possible for elected members of the House of Commons to have all means available to them in order to represent their citizens, to carry out their legislative work and to ensure representation within the various components of Parliament—whether committees, sub-committees or even here, in the House—, and with respect to all matters affecting society, with no exceptions. This situation, this reality, this duty that we have must be protected.

In the particular case being debated, there has been a violation of the rights of one of our colleagues—and there is no partisanship in this—and that is unacceptable. There are mechanisms to correct the situation and to ensure, according to today's motion, that our colleague's ability to legislate be restored in full.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I would like to thank my colleague from Gatineau for his speech.

The Liberal Party's motion is one in which I have a keen interest. I was a member of the Standing Committee on Access to Information, Privacy and Ethics when the code was adopted.

Naturally, those of us who were on the committee at the time never thought this kind of situation would arise, but somebody said “conflict of interest” and a witness who had appeared before the committee launched legal action. One of our colleagues went out for a press conference during which he commented on the testimony, and then he became the subject of legal action.

The lawsuit was not about statements he allegedly made personally; it was about statements a witness made before the Standing Committee on Access to Information, Privacy and Ethics. That witness was former prime minister Brian Mulroney. He decided to take his defamatory libel suit to the courts.

Who would ever have thought that could happen? It had to be the Conservatives. I realize that they analyzed every flaw in the legislation to find a way to prevent the member from coming back because there was open war between Mr. Mulroney and the member for West Nova. They discovered that they could ask the Conflict of Interest and Ethics Commissioner to intervene because there might have been a conflict of interest with respect to a witness's lawsuit against the member who made the statement.

A lawsuit was filed by a witness, and as a result, the member can no longer speak in committee or in the House of Commons. The member is being sued in his official capacity. He was working on the committee and made a statement outside. It was not personal. It was work-related. This could happen to any of us here in the House of Commons. Any one of us could make a public statement, and a witness who appeared before the committee and was upset about that statement could simply file a lawsuit—guilty verdict optional.

Consequently, because of the loophole in the legislation, the Conflict of Interest and Ethics Commissioner concludes that, since legal proceedings have been instituted against the member for West Nova, he can no longer talk about this affair.

The member for West Nova is a Liberal, and I do not see eye to eye with him. He is part of the Liberal gang that dipped into the employment insurance fund, that did not make any improvements and that did a whole lot of things that did not help seniors. I do not agree with their philosophy.

However, this parliamentarian was elected by his constituents, and he has the right to say what he wants in committee and in this House—only not about this matter anymore. The Conflict of Interest and Ethics Commissioner decided that because of Mr. Mulroney's lawsuit, the member could no longer talk about the Mulroney-Schreiber affair in committee or in the House of Commons. This is serious.

That is why the Bloc Québécois will oppose any procedure that would have this sort of effect. It does not matter that there was a loophole in the legislation; we just have to close it.

The Conservative member for Dufferin—Caledon is making fine statements. Great, he found the loophole.

But in this House, we have to say that this makes no sense. Our purpose in creating the position of Conflict of Interest and Ethics Commissioner and adopting a code of ethics was not to take away our own right to speak. That is completely absurd and contrary to the whole meaning of democracy and the British parliamentary system.

The Conservatives need to think long and hard about this. Never in the British parliamentary system has there been a law preventing a member from rising to speak in committee or in the House. The Conflict of Interest and Ethics Commissioner is well aware of this. There is a reason why, in her report, she says on page 24:

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.

The flaw is that one must declare his or her personal interests, including any legal action being brought against oneself. That is fine, except that as soon as a member is sued, that prevents him or her from speaking or voting in relation to the events linked to the legal action.

To reiterate, the hon. member for West Nova is being sued for his work as a committee member, because of a statement made outside the House. I can understand why the Conservative members and the former prime minister, Mr. Mulroney, did not like the statement he made. Well, we did not appreciate the fact that he walked around hotels and everywhere else with $1000 bills in envelopes. We will wait to see what happens next.

On the other hand, in this case, a loophole was found that allowed Mulroney to sue the hon. member for West Nova. What does that mean? That member can no longer speak in committee or in this House to discuss the matter. This goes against the spirit of democracy and the parliamentary system.

All these laws give us full immunity precisely so we may speak openly, in this House and in committee, and say what we think about any subject, without fearing that we will be sued at every turn. That is the fear at this time, and the Conservatives must be aware of this.

I have no problem if they win in the Mulroney-Schreiber case, but I hope they realize that members cannot be silenced because of the threat of legal action. That makes no sense. We must put an end to this as soon as possible.

I repeat, I do not approve of the Liberal Party philosophy, and I agree with the hon. member for West Nova even less. He is a Liberal, after all, and he shows no mercy for seniors or unemployed workers. That is how the Liberals are. They take money and try to give it to their friends. We all saw what happened with the Liberals. Nevertheless, they are members of this House, they were elected by the people and they have the right to speak in this House on behalf of their constituents, on all matters.

That is the beauty of the parliamentary system: when people are elected, nothing in this House or in committee can prevent them from saying what they think. The Conservatives have discovered a flaw, a loophole, I agree, but it has to be repaired as quickly as possible because an entire democratic system is affected by this.

The entire philosophy behind the parliamentary system has to be protected. We have to see to it and that is why we have immunity in committee and in the House. Obviously, when we leave the House, this immunity is diminished, even nonexistent. We know all that. The fact remains that, despite the law we have passed, despite the code of ethics we gave ourselves, we have just created a loophole in the existing parliamentary system.

My colleague from Gatineau, a history teacher, told as about the very nice history of the parliamentary system going back to the British North America Act. That is just fine, but I look forward to moving away from the British parliamentary system and to Quebec having its own parliamentary system. Nonetheless, we have to acknowledge history, and the hon. member for Gatineau is an excellent history teacher.

The past may be an indication of the future. We want to protect the freedom of expression of parliamentarians so that they can express themselves clearly in committee and here in this House on all subjects without any constraints. If we are real parliamentarians and real defenders of democracy, we have to do everything we can to close this loophole. Even the Ethics Commissioner recognizes that.

I was one of the members who contributed to creating the code. We never expected to end up in the situation we are in today. We never thought we would see a suit filed by a committee witness against an hon. member, in this case the hon. member for West Nova, preventing him from speaking in this House and in committee.

This is an aberration that needs to be corrected as soon as possible. I hope that all hon. members will vote in favour of this Liberal motion and that it will be unanimously passed by this House, in order to preserve democracy, not for those who came before us, but for the generations that follow us.

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

Mr. Speaker, I have tried to go through this motion and show the defects all the way through it. I am going to go back to the issue of the latter part, regarding sending the report back to the Ethics Commissioner.

The Ethics Commissioner has found the member for West Nova guilty on three counts of violating the ethics code. That is what she said. This motion essentially says that we should change the rules and send the issue back to the commissioner to hear it again.

I stand to be corrected but I believe this place, if it wanted to, could exonerate the member for West Nova, end of story, but instead those members are going to have the Ethics Commissioner do the dirty work. They are going to change the rules and make her say whether he is innocent or guilty. Is this an appropriate process of the House of Commons?

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I do not want to correct my colleague because I know that he is very well informed on this matter. If we reread the Liberal Party motion, we see that it is calling for the Standing Orders of the House of Commons to be amended by adding paragraph (b.1) after paragraph (b).

The motion asks for the Standing Orders to be amended and for the Ethics Commissioner to revisit her decision once the amendments have been made. That is not at all what the member just told us. The commissioner based her decision on standing orders that had already been adopted.

I was a member of that committee. I was in Parliament when the code was adopted. We saw the loophole that was brought up by the member for Dufferin—Caledon. He made the statement in committee. He found that flaw. No problem, the Conservative Party lawyers went to work. They wanted to keep the member for West Nova from speaking, and they found the loophole. Except that it means that now everyone in this House is penalized. It means that the public or witnesses can file a lawsuit against us to keep us from asking them questions or discussing a topic, even though we are often the most expert in the matter. That must be corrected.

The Liberals have moved their motion and are asking that the Standing Orders be amended. And after that, they want the commissioner to revisit the issue. I think that the motion is very well constructed, and therefore the Bloc Québécois will support it.

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

Mr. Speaker, I was delighted to hear the remarks of the member for Argenteuil—Papineau—Mirabel, if for no other reason than he had other things to say. He was involved in the committee work that led to the creation of the Conflict of Interest Code and he was able to say that it was never envisaged when they developed the code that this type of outcome would happen. That is very important for the record. I am not sure I have heard it from others here today, but I thank him for putting that on the record. That is important both for us here in the House and for the Ethics Commissioner.

Then I ask him, in the event that a member here were to be advocating outside the House and inside the House, let us say, for the use of two official languages in one of the provinces and he or she got involved in a lawsuit and that lawsuit might entail the risk of costs being awarded against--

[The Acting Speaker, Royal Galipeau]

It is with regret that I must interrupt the hon. member.

There are 45 seconds remaining for the hon. member for Argenteuil—Papineau—Mirabel.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, if I take a guess at the question, indeed, if the law is not changed, the member could be prevented from speaking in the language of his choice. That is completely absurd. The member for Scarborough—Rouge River is absolutely right. That was not the intent of the legislator when this text was drafted.

I am repeating this because it is important. No one could have ever imagined that a situation would occur in which a member is sued, and our own Ethics Commissioner—a position we created—denies that member the right to speak in this House and in committee on a particular subject.

[The Acting Speaker, Royal Galipeau]

The question is on the motion. Is it the pleasure of the House to adopt the motion?