Debates of June 5th, 2008

Opposition Motion--Conflict of Interest Code

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, again, if we read the language that Madame Dawson chose very carefully about the member for West Nova, if he was in contravention of the section 8 and section of the code, it was not by design, it was by accident. He inadvertently found himself in that situation and there was no fault assigned, or blame or accusation that he conspired to be in violation of the code. It was one of those inadvertent things that happened by a series of events beyond his control.

This is another good reason why we need to amend the Conflict of Interest Code, because it could happen to any one of us tomorrow morning. It may be happening to me right now as I speak. Somebody could be filing papers in some courtroom somewhere, saying that I said something libellous and I would be barred and precluded from raising that subject until the court case had played itself out, which as we know could be 18 months or 2 years down the road. This is an impossible situation and it cries out to be corrected.

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

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”.

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

Mr. Speaker, one of the members from the Bloc Québécois referred to the legal decision involving former Minister André Ouellet. In that particular case, he went outside the House of Commons and criticized a judge. The question then went to the courts and he was held in contempt of court for what he said and he resigned.

Under the current law that we have today, that minister would not be able to come into this place or into committee and talk about it because it simply would not be allowed. Under the rules that are being suggested by the Liberal caucus, he would be able to come in and talk about it. Quite frankly, I do not agree with that. The Liberals may agree with that but I think it is entirely inappropriate.

If the Speaker rules that someone has said something inappropriate in here and asks the member to withdraw the comments or apologize, if the member does not do so the Speaker can ask the member to leave the chamber. The Speaker can kick the member out of this place. If a member has a financial interest involved in a matter with which the House of Commons or a committee is dealing, then that member, under the rules, must go to the Clerk and tell the Clerk that he or she may have an interest.

That rule is not being changed, which is why this motion is very strange. The mover of the motion said that members have the unfettered right to say anything they want. The Liberals know that is not true.

Has the member really thought this out? Does he realize the can of worms he is opening with this whole issue?

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

Mr. Speaker, the member rightly points out that there are other provisions with respect to conflict of interest and certainly we are dealing with a very case specific amendment to the code with respect to someone being sued and his or her participation being cut off by his actions. He also rightly refers to an action that took place outside the House for which there were remedies, et cetera.

What was different in Mr. Ouellet's case was that there was no issue of his abilities as a member being cut off. In the case of where a justice of the Federal Court, Justice Joyal, criticized this Parliament, we as a Parliament considered bringing that judge in for contempt.

There are checks and balances with respect to contempt by the judiciary toward parliamentarians and vice versa. The example mentioned by the member has nothing to do with an MP's ability to speak.

As the member for Scarborough—Rouge River said, what happens outside regulates itself. The member for West Nova will go through a lawsuit. It is the Conservatives who have imbued the actions outside with terms like “legitimate lawsuit” and “potential conflict of interest” to make it sound as if they are the judges of what is meritorious and what is not. However, it is very clear: private interest, conflict of interest, recusal.

With respect to Mary Dawson, I do not think she got it right in that case. She inserted the words “contingent liability”. The matter needs to be reviewed for the protection of all members. The member for Dufferin—Caledon is sometimes quite outspoken and maybe he will join the “I've been sued” club some day. I hope not. The member for Winnipeg Centre suggested that I might be, but I hope for his sake he is never a member of that club.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, the exemption being sought by this motion in the Conflict of Interest Code “consists of being a party to a legal action relating to actions of the Member as a Member of Parliament”.

I would like the member's thoughts on this. It would appear to me that a party to a legal action could be the one, for instance, who is being sued as well as the person who is doing the suing. They are in fact a party to a legal action.

Does that mean that if a parliamentarian wants to launch a libel suit against someone in relation to matters relating to his or her duties as a member of Parliament, that member would also have to recuse himself or herself from participating in debates, in votes and in questioning on matters related to the lawsuit that the member may have brought? That raises a whole other kettle of fish because then it would put a member in a situation that if this current interpretation of the current code would stand, that a member will have to decide whether or not he or she wants to exercise his or her public rights and privileges of suing or giving up his or her privileges in the House.

This is a dilemma. I am sure it was never intended. I am sure that this kind of matter before us, this specific case, was never contemplated in terms of being a matter of pecuniary interest or private interest and that the issue of contingent liability raises very serious problems that will clearly impinge upon the constitutional privileges extended to members of Parliament.

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

Mr. Speaker, either way, under the current interpretation, just slapping a lawsuit on someone imposes some sort of pecuniary interest, gain or loss. When one sues, obviously one is trying to get money.

It brings me back to some comments the member for Dufferin—Caledon made about the lawsuit. Having notice of a lawsuit because one reads about it in the Globe and Mail that one is being sued is not the way the system works. The system allows people to file a claim and, in most cases across this country, they have six months to serve it.

The injustice and the political chicanery that took place here was that the member for Dufferin—Caledon had a copy of the notice of action with statement of claim attached before the member for West Nova was served. He said that he went down to the clerk's office and got a copy of it. Should the member for West Nova have done the same?

In fact, getting into litigation as implied undertakings of confidentiality, which that members knows about, it surprises me that he would put the member of West Nova or any of us, as the member for Winnipeg Centre said, any of us who might now be sued, the law says that we must have notice of it when we are served, not when we read about in the Globe and Mail.

This lawsuit frenzy, which that side over there seems intent on, will destroy not only this institution but individuals in this institution. As a recent poll shows, it is working counter to the Conservative government's claim that it wants it to be crystal clean, clear, transparent and accountable. It is not working.

Why do the Conservatives not get back to the nuts and bolts of Parliament? Why do we not work in an environment where if we say something in here we will not be sued for it. Why do we not have more respect for the old girl that is this place, the Parliament of Canada?

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

Mr. Speaker, I would like to return to the Ouellet case where he said something derogatory about a judge outside this House, goes through the whole court process and is found in contempt of court.

The question is: Should he be allowed to come back into this place or into a committee and deal with that in this place? Is this the appropriate forum for him to do that because it involves him personally? He was held in contempt of court. Should he be allowed to come into the House of Commons or into a committee and, for his own personal advantage perhaps, try to persuade the House of Commons to do a resolution, like it is now, and notwithstanding what the judge said, pass a resolution that will overrule that. Conceivably, that could happen.

Under the current law, Commissioner Dawson, I believe, if we follow the rationale in the scandal of the hon. member for West Nova, would simply say no, that he cannot do that. Under the resolution that is being suggested now, he can. He can come back into this place and take advantage of his position as a member of Parliament to try to persuade Parliament or even a committee to change the decision of the court or for some other reason, for his own personal advantage.

The question is--

[The Deputy Speaker, Bill Blaikie]

The hon. member for Moncton—Riverview—Dieppe.

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

Mr. Speaker, the corollary to one being innocent until proven guilty in civil law is that the money is not paid until there is a judgment. The case he refers to is a finding of a court. It has been done. If there is a pecuniary interest or a private interest that flows from that, it makes imminent sense that the member could not come back into the House and deal with the issue of that judgement before committee or whatever.

The Conservatives believe their own speeches when they talk about legitimate lawsuits, potential liability, contingent liability, and potential conflicts of interest. If we say that just by the slapping down of a lawsuit and it becomes real, then why does the member for West Nova not just pay the $2 million? That is not the way it works. It has to go to court. This case will not go to court. Brian Mulroney will not take this case to court against the member for West Nova.

Brian Mulroney received $1 million just in costs for the complete destruction of his reputation. I am not saying the member forWest Nova does not have an equal and better reputation, he probably does, but he is being sued for $2 million after Mr. Mulroney received $1 million, and only for costs. The case is never going to court. It is not money in the bank. The member should know that.

He should also know that we are free to sue, but we are also free to defend in this country in civil litigation. It is the whole basis of our criminal justice system which carries over to civil liability. It is the reason we have freedom in this country.

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

Mr. Speaker, I wish to thank all my hon. colleagues for their interventions today. I believe this is a very important debate and I am pleased to take part in it.

However, before I get into the crux of my statements and argument, I just want to make one observation. I find it very interesting that the members opposite in the Liberal Party are now introducing a motion to basically challenge a ruling of an independent officer of Parliament. I find it interesting because they were very critical of the government when we took similar action.

As is known, we have a dispute with Elections Canada right now over advertising practices and costs of the 2006 election. The Chief Electoral Officer of Canada made a ruling. We disagreed with that ruling and now we are engaged in a legal action because we believe a court of law will prove that our interpretation of the electoral law will be proven correct.

While we have taken that legal action, members of the party opposite have been very critical saying on many occasions that the ruling of the Chief Electoral Officer at Elections Canada must be correct. Elections Canada made an interpretation therefore it must be correct, yet when the Ethics Commissioner made a ruling with which the Liberal Party members disagreed, they have done the same challenge. They are not going to court to try to overturn the ruling, but they are trying to change the rules of the Conflict of Interest Code.

It appears that there is a little bit of hypocrisy going on here if, in fact, the position of the Liberal Party is that Ms. Dawson made an incorrect ruling. The Liberals certainly have a right to do what they feel they need to do to overturn the ruling or to rectify what they consider to be a wrong, as do we.

I would just point that out. Let us make sure that if we are having a debate, we keep things on an even keel and make sure apples are apples and oranges are oranges in our discussion when criticizing other political parties.

I want to begin by going back a little bit in time for those people who may be watching this debate and may be feeling a bit confused about what actually is going on here, and try to set the context of how this motion came to be, and why the debate is taking place today.

As we all know, several months ago the ethics committee, a standing committee of the House, decided to hold investigations and hearings into what is known to be the Mulroney-Schreiber affair. I do not have to go into details about what that affair is. I think all Canadians, and certainly members of this House, are well aware of the dealings between Mr. Mulroney a number of years ago and Mr. Schreiber, but in any event the ethics committee decided it should have a set of hearings to try to get more information about that.

During the course of the lead up to that committee hearing, and into the early parts of that hearing, one of the members of that committee, the Liberal member for West Nova, made some comments outside the House which Mr. Mulroney found to be defamatory. Subsequently, Mr. Mulroney filed a lawsuit against the member for West Nova.

Once that had been done, another member of the ethics committee, the Conservative member for Dufferin—Caledon, in a point of order, asked the member for West Nova to recuse himself because the member for Dufferin—Caledon stated that there was a private interest involved, and since the member for West Nova was being sued by Mr. Mulroney, the member for West Nova should not have the ability to question Mr. Mulroney, should not have the ability nor should he be a part of the committee that is conducting the investigations because it would be a conflict of interest.

The member for West Nova did not recuse himself so subsequent to that the member for Dufferin—Caledon wrote a letter of complaint to the Ethics Commissioner asking her to get involved and subsequently give her interpretation, make a ruling, whether or not the member for West Nova should in fact recuse himself.

The Ethics Commissioner did a quick investigation and came back with a report stating that, as the member for Dufferin—Caledon suggested, the member for West Nova should recuse himself, should not be able to participate in the hearings, and should not have been able to question or cross-examine Mr. Mulroney because there was a clear conflict of interest.

That is where we are today because that was the genesis for this motion.

The Liberal Party clearly disagrees with the ruling of Ms. Dawson and wants to change the rules that we are governed by in this place to allow, in the future, members of Parliament, who have been served with a lawsuit, the ability to speak about that very lawsuit or about issues surrounding the lawsuit.

That is the question we have before us. Is the current code of conduct and code of ethics proper or should it be amended? I would suggest, with great respect to all of the members opposite, that I do not think that the motion we have before us today for debate should be carried or passed, for a number of reasons.

Let me begin, when making my argument, talking about what the code now says and then why it says it.

Right now the code basically says that the interests of the general public should supercede private interests of MPs. In other words, we were elected to represent the general good, not to represent our own self-interests or perhaps even our own partisan interests.

Second, the code states that there should never be any conflict of interest that any member of Parliament finds himself or herself in. That sometimes is difficult to avoid, but I believe it is very easy to interpret.

The code further goes on in section 8 to say that it provides a general prohibition on members acting in any way to further their private interests, whether they intended to or not.

The code also goes on to say, in section 13, and I think this is the critical section, that it prohibits any MP from participating in any debate in the chamber or in a committee in which he or she may have a private interest.

That is what the code states. I do not think there is any confusion about that and there should not be any question that the ruling by Ms. Dawson was a correct one, because here we have a situation where there is clearly a private interest by the member for West Nova.

As I said earlier, the member for West Nova is being sued by a private citizen, a former prime minister of this country, Brian Mulroney. Therefore, any discussion about that lawsuit or any discussion about elements of the lawsuit should not be allowed.

Why is that? Why would the code of conduct put those provisions in? Quite clearly, it was done so for a very good reason. As one of my colleagues, the member for Dufferin—Caledon, earlier pointed out, since the member for West Nova did not recuse himself and was subsequently allowed to cross-examine Mr. Mulroney during committee hearings, he in fact was allowed to gather information which could be beneficial to him in the upcoming lawsuit. The code of conduct clearly states that should not be allowed because he is satisfying or serving his own private interests.

While it is very true, as other members have stated, that information gathered from committee hearings cannot be used in any lawsuit, the fact of the matter is that the member for West Nova was able to gather information which would benefit him in his lawsuit. He does not have to take testimony from his cross-examination. He does not have to take testimony from Mr. Mulroney and enter it as evidence in the court case, but the mere fact that he was able to gather knowledge from his questioning of Mr. Mulroney benefited him.

Second, this case was such a widely known case and garnered such interest from the Canadian public. It was covered so extensively by members of the national media. Since the committee hearings themselves were televised, all of the information that came out of those committee hearings then became a matter of public domain. Canadians from coast to coast to coast would hear daily news reports about testimony at committee.

Canadians who had a great interest in the hearings were able to tune in and watch the committee hearings live. Many committee members, including the chair of the committee, the member for West Nova, constantly appeared on political talk shows during the hearings.

To suggest that the testimony itself could not be used in a court of law and therefore it could not be of any benefit to the member for West Nova is absolutely ridiculous. Everyone in Canada, who had an interest in this case, was able to ascertain what was happening on a daily basis. In some cases, it was on a minute by minute basis if they happened to tune in to the live proceedings.

The Code of Conduct was established to disallow any member from participating in a discussion about a lawsuit involving the member of Parliament. By doing that, it could advance the private interests of the member of Parliament. This is specifically prohibited in the codes that govern us.

As I mentioned earlier, I take very seriously all the rules that govern us. As members of Parliament, we should also be very cognizant of the fact that this motion could set a very dangerous precedent. I say that because we have many, what I would loosely call, rules that govern and guide us in our day to day work. We have the bible of procedures and practices, Marleau and Montpetit, the Standing Orders and codes of conduct.

If we choose to change Standing Orders or elements of the Code of Conduct, it obviously affects all of us, and it will have consequences. That is why, before we engage in any change, the history of this place has always been to be consultative, to consult widely and broadly, not just with members of the House but with others who have an interest, a knowledge and an expertise in parliamentary affairs.

I assume the motion is brought forward with every non-partisan intent in mind. I do not believe the member for Scarborough—Rouge River has brought it forward in a partisan way to try to benefit the Liberal Party of Canada. I believe he brought this motion forward because he believes the code should be changed. However, I argue that the ramifications and the consequences of the change, should the motion be approved, will be very detrimental to the dealings of everyone in the House.

Let me give a few examples. Some may consider these to be extreme, but I can see where some of these examples could actually happen and could quite likely happen.

If the changes are made to the code, if the motion is approved, it will allow members of Parliament to speak freely on any issue in which they may be legally involved. In other words, if private citizens decided to sue members of Parliament over any issue, those members would then be able to, in effect, use this place as a bully pulpit to speak about that issue without fear of consequence. They would be able to, either in debate, or in committee or in member statements, if they wished and depending on the subject material, speak about the issue quite freely, advance their own interests in other words and advance their own arguments before any court case was held.

In my opinion, this should not be allowed to happen. That would be giving a distinct advantage to a member of Parliament. It would allow the private interests of a member of Parliament to supercede the interests of the general public.

Second, I hear, time and time again, members opposite and members in this debate say that the way the current code is written allows for libel chill to occur. They are referring to frivolous and vexatious lawsuits being entered or being launched to try to curtail debate.

It is true, whether it be in this place or in the purview of the general public, many times individuals launch frivolous and vexatious lawsuits to try to engage in some sort of libel chill, to keep someone who is speaking the truth quiet. I suggest we do not have to alter the code to deal with that. The courts are the best judge of what is frivolous and vexatious.

We have seen this time and time again. When someone has launched a frivolous lawsuit, the defendant goes to the court, says so and asks the judge to make an interpretation. That is how we deal with frivolous lawsuits. We do not change the code because we think that in the future there will be a raft of these frivolous and vexatious lawsuits in an attempt to quiet debate and discussion. There are many legal remedies to deal with that.

However, if there is, what I call, a legitimate lawsuit, one that is proven by courts and interpreted by judges as to be not frivolous and vexatious, brought forward by a member of the general public against a sitting member of Parliament, that member of Parliament should not be allowed to use his or her privilege in this place to gain an advantage over the private citizen. Why should he or she?

The current code is absolutely correct. If we change it, we head down a very slippery slope, and not only in this case. I know this is a very narrow cast example. This was obviously brought forward because the member for Scarborough—Rouge River did not feel it would be appropriate to disallow the ability of the member for West Nova to speak on the Mulroney-Schreiber proceedings.

What happens in the larger picture if we agree to the motion? In fact, it could happen now but I think a precedent would be set if the motion were passed. However, if any government, regardless of political stripe, gained a majority in the House and simply did not like a Standing Order, a code or any independent officer of Parliament's ability to interpret and adjudicate, is it could simply change the rules. Quite genuinely, I would hate to see that happen.

I would hate to see any government of the day, in a majority situation, have the ability if a Standing Order did not serve its partisan purposes, to use its majority and arbitrarily change it. I fear the change proposed in the motion would set a very dangerous precedent. Normally and historically, any changes to Standing Orders or any rules that govern this place and members of Parliament have not been dealt with in this manner. It has always been dealt with in a consultative way, usually through procedure and House affairs.

A number of people have referred to the fact that the procedure and House affairs committee is not sitting, and that is quite true. As a member of that committee, I have intimate knowledge of why the committee is not sitting. I suggest that if, as an example, the Liberal Party of Canada, the Bloc Québécois and the NDP all agree that procedure and House affairs could resume sitting to deal with this issue and this issue only, there would be widespread support from all members.

Unfortunately, there is a motion currently before the procedure and House affairs committee, which the committee clerk and chairman ruled to be outside its mandate. That is the stalling point, because the majority members on that committee disagreed with the chair's ruling and with the law clerk of Parliament and got rid of the committee chair. Therefore, the committee is not sitting.

I believe the procedure and House affairs committee is the right venue to discuss whether there should be changes to the Code of Conduct. It should not be done in this manner in this place in a one day debate. It should take place in a highly consultative manner through procedure and House affairs by bringing in expert witnesses and having a rational, fulsome discussion and debate. That is why I will be opposing the motion today.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, I listened with some interest to my hon. colleague's comments and his reasons for voting against the motion.

I point out two things. First, his interpretation of why that committee is unable to deal with motions such as this is obscure and obtuse at the very least. The government has practised this willy-nilly form of obstruction among so many committees. It is unprecedented in Canadian history.

I experienced this in the Standing Committee on the Environment and Sustainable Development. For six weeks the government talked out the clock on a private member's bill. It has never been done before in the history of Canada. It did that every day, wasting thousands of dollars and setting new legal precedents.

On the issue as to whether the motion is viable, I am trying to understand my colleague's balance between the rights and responsibilities of Parliamentarians to speak and represent their constituents, yet not incur their own benefit, which is something our ethics code now currently prohibits, and at the same time, not encourage people within this place or outside of it with that libel chill of which he spoke.

By finding a contentious issue that was affecting some other Canadian or somebody from another country, or by not wanting a certain member of Parliament to speak to the issue, a person could simply file a lawsuit. A person could simply put a writ on a member and prohibit that member of Parliament from speaking to an issue again for the reasons countered in the courts, reasons unproven by the courts. Then our Ethics Commissioner would come forward and prohibit the member from speaking because of that lawsuit?

I am trying to understand the balance the member is trying to seek. How can he assuage the fears of people like myself and my party from creating that type of libel chill, that someone will sue us in the actions of our duties, thereby closing our comments and silencing our voices and the voices of the people we represent, which is again to the fundamentals of this place?

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I have a couple of points, Mr. Speaker.

First, if comments were made by members of Parliament in this place and not outside of this place, lawsuits could not be brought forward. We are protected by privilege. It is only if we say something outside of this place.

With the whole larger issue of libel chill, I mentioned in my statement that there were legal remedies to prevent that. However, the courts are the best ones to judge what is a frivolous lawsuit as opposed to a real or legitimate lawsuit.

If there is a frivolous lawsuit, just for the purposes of libel chill, that is something I do not agree with, but the courts should be able to determine that. There are many remedies to stop that from happening, and I think the member knows that. Clearly, if there is an instance where a member of Parliament is involved in a lawsuit, the member should not be allowed in this place to speak of issues surrounding that.

How many times have we heard outside of this place, non-members of Parliament, when asked a question, say that the matter is before the courts, therefore they cannot speak to it? That is a standard operating procedure by general citizens, not members of Parliament.

All of a sudden we are saying that if there is a lawsuit, because a person is a member of Parliament, we will exclude that provision and allow the member to speak to it here. It is promoting self-interest, and that is something we have to take very seriously.

The overarching principle of this place is to put public interest ahead of private interest. In this instance, I believe the member for Scarborough—Rouge River thinks he is doing the right thing, because he does not believe the member for West Nova should be disallowed to speak of this issue, but it raises a host of other potential problems. I ask all members to carefully consider the ramifications that could result from the passage of the motion.

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

I am still confused, Mr. Speaker, as to how the member would determine a legitimate lawsuit from a vexatious lawsuit.

If I understand his answer, and I want to give him the full opportunity to answer, it is legitimate until a court determines that it is vexatious. If a court determines, through the procedure that is laid out in our courts across the country, that it is vexatious, then it is vexatious, but until that point, even if it is Mickey Mouse suing a member of Parliament, it is not vexatious. It is legitimate.

As a final point, I want to know if the Mulroney lawsuit, where he alleges that the member for West Nova said that it was improper to say that he received money while prime minister, when in fact Mr. Mulroney agreed probably to receive money while he was prime minister and then received it as a member of Parliament, is a vexatious lawsuit or a legitimate lawsuit?

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Mr. Speaker, as I said in my comments, of course it is up to the courts to determine what is vexatious and what is not. That is their role. By passage of this motion, we are basically just sidestepping that. Right? By passing this motion, we are basically saying that it really does not matter whether a lawsuit is legitimate or vexatious. No lawsuit has a bearing on the ability of a member of Parliament to speak to the issues surrounding that suit. That is the alternative. I suggest that this is not a good alternative.

There are times when libel chill has probably been a considered option, but I believe that the overarching principle that public interests supersede private interests must be observed. It is the same as the old saying, a bit of an analogy, “Better than one guilty person, or one innocent person...”. Let me get this straight--

[Paul Szabo, Liberal, Mississauga South, ON]

The guilty go free.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Exactly.

Mr. Speaker, while systems are not perfect, we have to put a system in place that serves the best interests of the public. We can all find examples from time to time that may sort of fall through the cracks, but let us not--

[The Deputy Speaker, Bill Blaikie]

Order. We do have a lot of people trying to get in on this. I will go to the hon. member for Dufferin—Caledon.

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

Mr. Speaker, the member for Scarborough—Rouge River wants to add the following paragraph to his motion:

“(b.1) consists of being a party to a legal action relating to actions of the Member as a Member of Parliament; or”;

I want members to think about those words.

Was the Mulroney-Schreiber lawsuit a result of the member for West Nova being a member of Parliament? A member of the House could be involved in some personal matter, not as a member of Parliament, a matrimonial matter, for example. He or she could be involved in some matter involving his or her spouse which involves money, support payments, or some other kind of thing. It could be argued both ways, I suppose. This motion would not cover that. In fact, I do not think the motion covers the matter that is before us.

I have a question for the member. Is this really appropriate for the amount of time that we will be spending on this? Should a committee not be reviewing these matters, and listen to the Canadian Bar Association, legal people who know things--

[The Deputy Speaker, Bill Blaikie]

The hon. parliamentary secretary to the government House leader.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Mr. Speaker, I absolutely agree with the observations made by my colleague. That is why, historically, changes to the Standing Orders have gone before a parliamentary committee for full examination.

Many questions have been raised in the debate today and many more questions will be raised both pro and con because this debate is far from over.

Is it appropriate to make a fundamental change to a rule that guides the conduct of members of this place after one day of debate without hearing from expert witnesses, without hearing from members of the Canadian Bar Association, as my colleague said? I would argue absolutely not. This issue takes much more time and a much more fulsome and considered debate than one day.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, I would submit that we really do not need much debate on this issue. Members of Parliament come to this Chamber because they believe in fighting for various causes: good governance, the environment, and so on.

Let me use an example of a polluting company that is called on the carpet publicly by a member of Parliament who is trying to get legislation passed that would stop the company from polluting. All the company has to do is launch a lawsuit, keep it going long enough during the period of debate, and that vote would end up not counting.

One of the reasons we have parliamentary privileges is we can--

[The Deputy Speaker, Bill Blaikie]

The hon. parliamentary secretary to the government House leader.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Mr. Speaker, the member makes a legitimate point, but I would suggest again that this is why this should be considered in depth by a parliamentary committee. As an example, if there are to be changes to the code, perhaps votes for example could be excluded, perhaps not. Perhaps the only exclusion would be the ability for the member to speak.

However, it is quite common for all members to recuse themselves if they have an interest in the issue at hand. If for example, even without a lawsuit, a member of Parliament had an interest, let us just say in a land deal, and for some reason the principals of the land management company were at committee discussing issues concerning that land deal, should the member of Parliament be allowed to participate in that and vote on that? I would argue not.

Many times we take it upon ourselves to recuse ourselves if we have a private interest in an issue. We should continue that. This motion would absolutely overturn that ability and that right.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I actually believe the last comment made by my hon. colleague was bordering on the absurd. We are asked to recuse ourselves from anywhere where we have a financial interest. There is a fundamental difference between that and being the subject of a lawsuit, when one is in the business of actually having to challenge, whether it is a government procurement scheme or challenging a minister.

We have a situation where the government is acting incredibly litigious against other members of Parliament whenever it is questioned. We would have a situation, under this government, where it could say to the hon. Leader of the Opposition that since he is under a lawsuit, he really cannot speak to any of the issues he has raised because somehow his privilege has to be taken away.

We are dealing with a very serious issue. If we were to allow the principle to stand, that anyone could be subject of a lawsuit and then not allowed to continue on their work, then we would be subject to any form of legal intimidation--

[The Deputy Speaker, Bill Blaikie]

Order. A final response, the hon. parliamentary secretary, briefly.