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.