Mr. Speaker, I rise on a point of order with respect to the motion presented by the Liberal Party and the Liberal member for Beauséjour. Specifically, I would ask that you consider whether this motion is acceptable in light of the sub judice convention.
Today's motion passes judgment on a political entity and on four private individuals. It asks the House to serve as a judge and jury over a private civil matter that is before the courts. Specifically, it makes a finding of fraud. It asks the Prime Minister to direct the financial affairs of a political party, it asks the Government of Canada to remove individuals from employment and, similarly, it asks the Conservative Party of Canada to do the same.
I find these proposals contrary to the principles and values of a mature democracy. In Canada, we respect the rule of law, which includes due process.
For those reasons, the motion is at odds with long-standing parliamentary conventions and practices. Let me explain further.
As you know, Mr. Speaker, the House has significant powers derived from its privileges and immunities. Perhaps the most important privilege is freedom of speech in parliamentary proceedings. While this privilege is normally associated with the right of individual members, it also applies to motions adopted by the House.
As O'Brien and Bosc state at page 91:
Generally considered to be an individual privilege, the courts have confirmed that freedom of speech is also a collective privilege of the House. Motions carried by the House are expressed collectively by its Members and therefore cannot be challenged in a court of law.
However, motions, such as the one being debated today, can have a direct, real and personal effect on an individual and his or her reputation. Given the broad powers accorded to the House in this regard, the House has established practices and conventions to ensure that its powers are exercised judiciously and that due process is respected. As O'Brien and Bosc note at page 97:
The privilege of freedom of speech is an extremely powerful immunity and on occasion Speakers have had to caution Members about its misuse.
O'Brien and Bosc go on to cite Speaker Fraser's 1987 ruling where he stated:
Such a privilege confers grave responsibilities on those who are protected by it. By that I mean specifically the Hon. Members of this place. The consequences of its abuse can be terrible. Innocent people could be slandered with no redress available to them. Reputations could be destroyed on the basis of false rumour. All Hon. Members are conscious of the care they must exercise in availing themselves of their absolute privilege of freedom of speech. That is why there are long-standing practices and traditions observed in this House to counter the potential for abuse.
One practice observed by the House to protect the interests of individuals is the sub judice convention. As O'Brien and Bosc state at page 99:
It is accepted practice that, in the interests of justice and fair play, certain restrictions should be placed on the freedom of Members of Parliament to make reference in the course of debate to matters awaiting judicial decisions, and that such matters should not be the subject of motions or questions in the House.
O'Brien and Bosc go on to state:
The acceptance of a restriction is a voluntary restraint on the part of the House to protect an accused person or other party to a court action or judicial inquiry from suffering any prejudicial effect from public discussion of the issue.
As O'Brien and Bosc note at page 100:
The sub judice convention is important in the conduct of business in the House. It protects the rights of interested parties before the courts, and preserves and maintains the separation and mutual respect between the legislature and the judiciary. The convention ensures that a balance is created between the need for a separate, impartial judiciary and free speech.
The sub judice convention is well recognized by other procedural authorities as well. For example, citation 505 in the sixth edition of Beauchesne's states:
Members are expected to refrain from discussing matters that are before the courts or tribunals, which are courts of record. The purpose of this sub judice convention is to protect the parties in a case awaiting or undergoing trial and persons who stand to be affected by the outcome of a judicial inquiry. It is a voluntary restraint imposed by the House upon itself in the interest of justice and fair play.
The sub judice convention is not unique to this House. It is a recognized principle in Westminster.
As the 23rd edition of Erskine May states at page 436:
Subject to the discretion of the Chair and to the right of the House to legislate on any matter or to discuss any matters of delegated legislation, matters awaiting the adjudication of a court of law should not be brought forward in debate.
The British Parliament has gone further than Canada by articulating the sub judice convention through resolution. The latest resolution was adopted in 2001. Similarly, the sub judice convention has been codified in other jurisdictions, including Alberta, Ontario, Quebec, India and New Zealand.
In Canada, at the federal level, we have not had a need to articulate how the sub judice convention should be applied. Up until now, we have been able to rely on the common sense of members to ensure that we do not abuse our privileges. My fear, however, is that this will no longer be the case if today's motion should be adopted.
It is quite evident that the motion by the Liberal member for Beauséjour is contrary to the principle and practices of the House. It assumes there is a presumption of guilt and the House can pass judgment on individuals without any respect for due process.
As O'Brien and Bosc note at page 100:
--it is the Speaker who decides what jurisdiction the Chair has over matters sub judice.
In a ruling of March 14, 2008, Mr. Speaker, you quoted Bourinot and how he described the first principles of our parliamentary tradition as:
To protect the minority and restrain the improvidence and tyranny of the majority, to secure the transaction of public business in a decent and orderly manner--
At that time, committees were ignoring the usual practices and procedures of this House and you described the situation as verging on anarchy. The opposition was being reckless with their majority status back then and it has continued that irresponsible behaviour in its original demands for documents relating to Afghan detainees that could have jeopardized national security.
The tyranny of the opposition majority has been reckless and irresponsible in its demands for the production of documents that would breach cabinet confidence, and now the tyranny of the majority is being reckless and irresponsible with the long-standing practice and principle of parliamentary democracy, the sub judice convention, by passing judgment on individuals without any respect for due process.
I submit that the motion, as it is drafted, infringes on the sub judice convention and should be ruled out of order on that basis.
I realize that since the motion is before the House today and we may in fact have a vote tonight or, at the latest, tomorrow, it is imperative for you, sir, in all your wisdom, to rule on this matter as quickly as possible.