Mr. Speaker, I am pleased to speak to this debate today in the House. I am responding to the motion by the member for Scarborough—Rouge River, which reads as follows:
That this House reaffirm all of its well-established privileges and immunities, especially with regard to freedom of speech;
that, in order to clarify and assure those privileges, Section 3(3) of the Conflict of Interest Code for Members of the House of Commons, which is Appendix I to the Standing Orders of the House of Commons, is amended by deleting the word “or” at the end of paragraph (b) and by adding the following after paragraph (b):
“(b.1) consists of being a party to a legal action relating to actions of the Member as a Member of Parliament; or”;
that, pursuant to section 28(13) of the Conflict of Interest Code, the House refer the Thibault Inquiry Report back to the Conflict of Interest and Ethics Commissioner for reconsideration in the light of the amendment to the Code; and
that the House affirm its confidence in the Conflict of Interest and Ethics Commissioner.
The motion has to do with the rights and immunities of members. I will quote from Marleau and Montpetit, on page 71:
The rights, privileges and immunities of individual Members of the House are finite, that is to say, they can be enumerated but not extended except by statute or, in some cases, by constitutional amendment, and can be examined by the courts. Moreover, privilege does not exist “at large” but applies only in context, which usually means within the confines of the parliamentary precinct and a “proceeding in Parliament”... Members must avoid creating unnecessary conflicts with private rights and thereby having issues of parliamentary privilege brought before the courts.
Marleau and Montpetit goes on to say:
By far, the most important right accorded to Members of the House is the exercise of freedom of speech in parliamentary proceedings.
However, Marleau and Montpetit states, on page 75:
The privilege of freedom of speech is not limitless and grey areas remain. ... The parliamentary privilege of freedom of speech applies to a member’s speech in the House and other proceedings of the House itself, but may not apply to reports of proceedings or debates published by newspapers or others outside Parliament ... Thus, comments made by a member at a function as an elected representative—but outside the forum of Parliament—would not be covered by this special privilege.
The second edition of Maingot's Parliamentary Privilege in Canada states, on page 42, that parliamentary privilege protects the member “when he speaks in Parliament, but when he speaks outside, or publishes outside what he says inside Parliament, Parliament offers no protection; only the common law does, if it is offered at all.”
Speakers have reminded members of their duty to be careful in using their privilege to speak freely. We know all too well that members are not always as careful as they should be.
Outside the House, as Marleau and Montpetit points out on page 76, “Members also act at their peril when they transmit otherwise libellous material for purposes unconnected with a parliamentary proceeding.”
Marleau and Montpetit adds that the publication of libellous material has been considered by most courts to be beyond the privileges of Parliament when it was not part of the parliamentary process to begin with.
Maingot states on page 42 that a member could not come to Parliament for protection if he was sued for comments made outside Parliament. Maingot goes on, citing a series of British suits from 1794 that support the principle whereby parliamentary privilege does not apply to comments made outside Parliament.
In the Abingdon case, in 1794, involving a speech published in several newspapers by Lord Abingdon, the court ruled that the legislative provisions on libellous material applied to Lord Abingdon because he made the comments in question outside Parliament.
In the Creevey case in 1813, the court ruled that a member is protected when he speaks in the House but not “when unauthorized by the House.”
Maingot concluded that members could not complain in the House if they were convicted for libellous material outside the House. Maingot cites the report of the committee on defamation, presented to the British Parliament in 1975 by the Lord High Chancellor and Lord Advocate, whereby, “no parliamentary privilege attaches to the repetition outside Parliament of statements previously made in the course of Parliament proceedings.”
As Maingot points out, the Canadian system is similar to the British system when it comes to the application of parliamentary privilege within Parliament and subjecting members to the laws of Canada regarding statements made outside of Parliament.
The opposition motion we are debating here today raises some fundamental questions for members, questions that have to do with their parliamentary privilege to speak in this House and the limits of that privilege outside this House.
Members enjoy freedom of speech in the House in order to be able to fulfill their duties as elected officials. At the same time, members must be accountable for the statements they make outside the House, just as all Canadians are.
The principle has two components. On one hand, members must be able speak freely in Parliament and, on the other hand, they must also obey the laws governing freedom of speech for all Canadians. In this way, the parliamentary institution is protected, so that debate may be free and unfettered, while any statements made outside Parliament are subject to the laws of the Canadian legal system.
However, parliamentary privilege is not absolute, despite the fact that it is critically important for members and their ability to carry out their parliamentary duties.
In some cases, the House has decided to limit privileges in order to achieve other objectives, particularly by creating the Conflict of Interest Code. For instance, under the code, members cannot take part in a debate or a vote if it could further their private interests.
Section 8 of the code is clear:
When performing parliamentary duties and functions, a member shall not act in any way to further his or her private interests or those of a member of the member’s family, or to improperly further another person’s or entity's private interests.
Section 13 is more precise:
A member shall not participate in debate on or vote on a question in which he or she has a private interest.
These principles had been enshrined in the Parliament of Canada Act before they were written into the code.
In my opinion, in order to guarantee a comprehensive set of ethics rules governing members, it is essential that the House put some limits on these privileges, particularly that of freedom of speech. A fair balance must be established between high ethical standards and the privileges of individual members.
The Conflict of Interest and Ethics Commissioner recognized that ethical standards and members' privileges need to be reconciled. She says in her report:
I must balance this consideration, however, against the recognition that it is one of the main objectives of the Code to ensure that Members perform their public duties in a way that fosters the confidence of the public in the way these duties are performed. The purposes and principles of the Code are set out in sections 2 and 3 of the Code. I quote, Office of the Conflict of Interest and Ethics Commissioner 21 for example, the introductory words of subsection 2 (1) and paragraph (b) of that subsection:
“2.(1) Given that service in Parliament is a public trust, the House of Commons recognizes and declares that Members are expected
(b) to fulfil their public duties with honesty and uphold the highest standards so as to avoid real or apparent conflicts of interests, and maintain and enhance public confidence and trust in the integrity of each Member and in the House of Commons;”
In other words, she had to choose between members' rights and the need to establish rigorous ethical standards. The commissioner decided that observing the principles laid out in the code was more important.
Like the commissioner, the government believes that ethics override member privileges. Canadians elected us so that we would guarantee strict ethical standards, and that is what we will defend.
I should add that the commissioner's conclusions mirror the practices of other legislative bodies. Again in her report, she mentions the following:
Recognizing that the House of Commons shares its traditions and its privileges with other legislative bodies in Canada, and that the language used in many of the ethical codes and statutes established by those bodies is similar to that used in the Code, I consulted my counterparts at the Senate and in the provinces and territories to determine how they interpret the term “liabilities”. Most have responded and have confirmed that they interpret “liabilities” to include contingent liabilities. Many added that they interpret pending lawsuits as falling within the ambit of the term “liabilities”.
Consequently, the limits proposed in the report are in line with the limits imposed on legislators in other jurisdictions. I would add that, in all reality, the limits on privileges set out in the commissioner's report would be relatively minor.
This is what the commissioner stated in her report:
The fact that Mr. Thibault should not have participated in the proceedings before the Standing Committee does not mean that any Member can be prevented from taking part in proceedings before the House of Commons or a committee by the institution of a lawsuit against that Member. To trigger that result there would have to be some connection between the lawsuit and the question before the House of Commons or committee such that the private interest of the Member was engaged.
The lawsuit instituted against Mr. Thibault resulted from his statements to the media outside Parliament. Furthermore, the questions before the Standing Committee were substantially overlapping with the very statements that were the essence of the lawsuit. A similar conjunction of circumstances is unlikely to occur frequently. Only where questions debated and voted on by the House or a committee relate to the private interest of a Member is he or she not permitted to participate.
Therefore, I am of the opinion that the opposition is exaggerating the impact of the commissioner's findings on parliamentary privilege. Nothing is more important than being able to count on an effective code. Otherwise, what good is it?
The motion moved by the opposition today is also prejudicial to the process established by the House to deal with conflicts of interest.
When the House adopted the code, it also chose to give the Conflict of Interest and Ethics Commissioner the authority to interpret and apply the code.
The Conflict of Interest and Ethics Commissioner is an independent officer of Parliament. She must be independent to effectively carry out her responsibilities.
However, I believe that we are establishing a dangerous precedent by asking the House to change the code when the commissioner rules against a member. Our entire code of ethics would become meaningless if such a practice were adopted. In fact, it would become easy for a majority government to amend the rules if it did not agree with the commissioner.
The House decided to appoint an independent ethics commissioner for good reason. Therefore, we must respect her decisions.
The motion moved today by the opposition, which we are debating outside the usual process for parliamentary study, leads me to ask the following question: is the member for Scarborough—Rouge River proposing that members should not be subject to existing laws when they make comments outside Parliament? Is he suggesting that members should not be held accountable for comments they make outside Parliament?
The government believes that Canadian tradition with respect to parliamentary immunity should apply to the same degree it always has. Members should be able to speak freely in this House, but they should also have to take responsibility before the courts for comments made outside Parliament. Changing that would create a double standard for members and the people they represent with respect to things said outside Parliament.
The government also believes that we must respect normal parliamentary procedure when the time comes to consider changes to the Standing Orders. To do otherwise would offend both the privileges we enjoy as members of Parliament and the Canadians we serve.
During the last election campaign, the government committed to restoring accountability to Parliament and putting an end to the culture of entitlement.
This opposition motion seeks to do exactly the opposite. This motion implies that when members do not like the rules of the House, they can simply make a motion to change them, without a thorough review. It implies that members believe that they, unlike all other Canadians, are not accountable for what they say outside the House.
Today's motion is a front. The opposition claims that it respects parliamentary privilege, yet it is seeking to undermine parliamentary procedure and responsibility, which are crucial to our parliamentary democracy.
The member for Scarborough—Rouge River has written a book on the power of the Houses of Parliament. In his preface, he emphasized that the people must respect their Parliament.
With today's motion, the opposition could end up undermining the people's respect for their Parliament because the motion disregards prescribed parliamentary procedure, the advice of experts, and the thorough study of the repercussions this change to the rules could have on parliamentary privilege.
That is why the government cannot support this motion. I invite all other members to vote against it as well.