Mr. Speaker, I have a further submission dealing with my colleague, the hon. member for Provencher, in his intervention on a question of privilege just a few moments ago. My comments will be restricted to a question of privilege regarding the group Anonymous and not on the Wikileaks issue, which we just clarified a few moments ago.
I am rising to provide the Chair with additional submissions with respect to the question of privilege, as I mentioned a few moments ago. My hon. friend has put before the House a submission that his rights as a member of Parliament have been breached with respect to freedom from obstruction, interference, intimidation and molestation. In particular, his freedom from intimidation in connection with the proceeding in Parliament has been breached, amounting to a contempt.
Moreover, Sir, I submit there is a second contempt in relation to the obstruction of the hon. member for Provencher through an interference of nepotism and an accusation of criminal activity.
The classic definition of parliamentary privilege can be found at page 75 of the 23rd edition of Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament. It states:
Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively … and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.
A more pithy summary of privilege can be found in Mr. Speaker Lamoureux's decision at page 5338 of Debates for April 29, 1971, where he stated:
In my view, parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a member to discharge his duties in the House as a member of the House of Commons.
Citation 93 on page 25 of Beauchesne's Parliamentary Rules & Forms, sixth edition, states:
It is generally accepted that any threat, or attempt to influence the vote of, or actions of a Member, is breach of privilege.
Citation 99 on page 26 of that same publication adds:
Direct threats which attempt to influence Members' actions in the House are undoubtedly breaches of privilege.
While some parts of the situation are time tested, other characteristics of this case present novel aspects to contemplate. On the one hand, responding to threats is among the first matters of parliamentary privilege dealt with in Canada. Page 198 of the second edition of Joseph Maingot's Parliamentary Privilege in Canada tells us of an incident in 1758 where the Nova Scotia House of Assembly proceeded against someone who made threats against a member.
Although the framework of privilege has largely solidified through centuries of common law statutes and even the Constitution, it continues to have sufficient flexibility to adapt and be applied to a changing environment, such as televising proceedings, as noted at page 63 of House of Commons Procedure and Practice, second edition.
Page 225 of Maingot advises:
While privilege may be codified, contempt may not, because new forms of obstruction are constantly being devised and Parliament must be able to invoke its penal jurisdiction to protect itself against these new forms; there is no closed list of classes of offences punishable as contempt of Parliament.
That speaks to the novel aspects in this case where we are dealing with publications on the Internet, particularly with videos on the website YouTube. The YouTube videos of the so-called Anonymous include comments which are, I submit, threats and even blackmail. These comments seek to induce the Minister of Public Safety to undertake certain actions in respect of a bill he has introduced and sponsors.
Before I press further into my submissions, I want to make it very clear that I do not seek to bring ordinary free and democratic expression or critical speech into what is being considered here.
Page 235 of Maingot offers an articulate review of the balance to be considered. It states:
—all interferences with Members' privileges of freedom of speech, such as editorials and other public comment, are not breaches of privilege even though they influence the conduct of Members in their parliamentary work. Accordingly, not every action by an outside body that may influence the conduct of a Member of Parliament as such could now be regarded as a breach of privilege, even if it were calculated and intended to bring pressure on the Member to take or to refrain from taking a particular course. But any attempt by improper means to influence or obstruct a member in his parliamentary work may constitute contempt. What constitutes an improper means of interfering with Members' parliamentary work is always a question depending on the facts of each case.
The February 18 video of Anonymous said, in respect of my hon. friend, that, “you will cease your efforts...immediately. If you do not...you will soon find yourself not only mocked, but jobless and despised.
The video went on to suggest that my hon. friend, “is bound to have many skeletons in his closet. Some of these have already been brought to light and we have no doubt that this is only the tip of the iceberg”. The video later inferred that he would not be allowed “to have any secrets of his own”.
The February 18 video also included a broad swipe at all hon. members by threatening, “Let this be a warning to any politician....Your actions will not stand. You cannot run. You cannot hide”.
In a subsequent video published on February 22, after disclosing a number of items of personal information in respect to the hon. member and of individuals close to him, Anonymous rhetorically asks:
Do we have your attention? How does it feel to have personal information about your family in the hands of people you know nothing about, with no control over who disseminates it or how it will be used?... Let it be known this is only a taste of the information we have access to. And this is only the beginning.
Later in the video, there was another broad threat to all members of this House. I suppose that this very intervention I am making will come within the ambit of this threat to the effect that, “to the rest of the Parliament of Canada: you would do well to mind your words about Anonymous”.
In the most recent video on February 25, a further threat to the hon. member for Provencher was uttered to the following effect, “You have seven days to reflect upon your personal and political crimes. After that, the Canadian people will also be made aware of just how disgustingly unscrupulous and corrupt you are.”
As I will review later, there have been false and misleading statements meant to malign the hon. member. We should expect more of the same.
In this weekend's video, there was yet another threat aimed generally at all hon. members:
And to the rest of those who support Bill C-30: do not believe for a moment that you are untouchable. Anonymous has received information implicating many of you in both political and personal scandals....Let the next seven days serve as a period of reflection for the entire House of Commons. Ask yourselves, how many more scandals can you afford?
To summarize the various quotes, they are more than just intimidation or threats. Quite frankly, they are blackmail.
In a ruling on September 19, 1973, Mr. Speaker Lamoureux on page 6709 of the Debates stated that he had:
—no hesitation in reaffirming the principle that parliamentary privilege includes the right of a member to discharge his responsibilities as a member of the House free from threats or attempts at intimidation.
Speaker Bosley, on May 16, 1986, at page 13362 of Debates held that the threat or attempt to intimidate cannot be hypothetical but that it must be real or have occurred.
For his part, Mr. Speaker Parent, on March 24, 1994, at page 2706 of Debates said:
Threats of blackmail or intimidation of a member of Parliament should never be taken lightly. When such occurs, the very essence of free speech is undermined. Without the guarantee of freedom of speech, no member of Parliament can do his duty as expected.
In that instance, a prima facie breach of privilege was not found because the threats were associated with an appeal then pending at the Ontario Court of Appeal.
On page 143 of Erskine May, it says, “The House will proceed against those who obstruct Members in the discharge of their responsibilities to the House or in their participation of its proceedings”.
Indeed, Mr. Speaker, your own decision on December 13, 2011, at page 4396 of the Debates, also turned on the principle of whether there was an impact on parliamentary duties. This brings me to whether or not these threats arise from a “proceedings in Parliament”. The circumstances before us today arise from Bill C-30, which was recently introduced and now sits on the order paper as an order of the day. Pages 91 and 92 of O'Brien and Bosc quote two definitions of this term “proceedings in Parliament”, from Erskine May on Australia's Parliamentary Privileges Act 1987. May's definition states that:
An individual Member takes part in a proceeding usually by speech, but also by various recognized forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking.
The Australian statutory definition contains the expression “all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House”.
Page 80 of Maingot addresses the point that:
—two of Parliament's constituent elements, the House of Commons and the Senate were established for the enactment of laws, those events necessarily incidental to the enactment of laws are part of “the proceedings of Parliament”.
The introduction and sponsorship of a bill cannot get closer to the process of enacting a law. Therefore, I would submit that the threats and accusations are quite clearly relating to a proceeding in Parliament.
While I am making references to Australia, that is one case when the Commonwealth which shares features to this case, particularly with regard to generalized threats to all hon. members.
On May 4, 1993, the President Sibraa of the Australian Senate ruled that page 19 of Hansard on two related questions of privilege. On one of the matters the president said:
The essence of the matter raised by Senator Walters is that a person has allegedly threatened to publish certain supposed information concerning Opposition members of parliament if the Opposition members adopt a certain policy in relation to X-rated videos.
The subsequent Forty-third Report of the Committee of Privileges, in December 1993, described the threats identified by Senator Walters as: first, an alleged threat “to 'out' Liberal party figures if the party adopted what it claimed was a leaked policy document proposing a sex industry crackdown” and second, an accusation regarding a “potential release of security film of a coalition member at a sex shop”.
The president found that:
The possible contempt of parliament contained in the matter raised by Senator Walters is that of seeking by threats to influence senators in their conduct as senators. This is one of the well known contempts of parliament...
The alleged threat is directed to Opposition members generally and not to any particular person, but it is well established that the threat to unnamed members, or to a group or category of members, or to members in general, can be a contempt just as can a threat to particular members.
The alleged threat as reported and also directed to Opposition members of Parliament generally, and does not distinguish between members and senators. If the threat as reported were made, it could be regarded as being directed to senators as well as members of the House of Representatives. This is so particularly having regard to the fact that senators could, and probably would, participate in the formulation of any policy relating to X-rated videos.
The formulation of such a policy by a group of senators clearly falls within their duties as senators and their conduct as senators...A threat such as the one reported obviously has the potential substantially to obstruct senators in the performance of their functions.
In the event, after hearing submissions and evidence, the committee concluded that, in view of the further details it acquired, this particular case “did not have the effect or tendency of substantially obstructing senators in the performance of their functions”, although the committee did find the actions of those responsible to be “inept and offensive”, and part behaviour which was “cavalier and unprofessional”.
One area I should address is the identity or source of the threats and the ability to make a specific charge. Citation 99 on page 26 of Beauchesne's states that:
Direct threats which attempt to influence Members' actions are undoubtedly breaches of privilege. They do, however, provide serious problems for the House. They are often made anonymously and it is rarely possible for the House to examine them satisfactorily.
In his September 19, 1973, ruling, Mr. Speaker Lamoureux found, at page 6709 of the Debates, that the instance raised by a member could not be a prima facie question of privilege because the member did not know the identity of the person at the other end of the telephone conversation which gave rise to the complaint.
Nonetheless, the unknown identity of those responsible for breaching privilege did not deter Mr. Speaker Milliken in his October 15, 2001 ruling, at page 6085 of the Debates, from stating:
There is a body that is well equipped to commit such active inquisition, and that is the Standing Committee on Procedure and House Affairs, which has a fearsome chairman, quite able to extract information from witnesses who appear before the committee, with the aid of the capable members who form the committee of the House
I have no doubt that the hon. member for Elgin—Middlesex—London is an even more fearsome inquisitor than his predecessor 11 years ago. I believe that the same principle about the role of committee holds equally true today, that is to say, any unanswered questions can be resolved there.
As for how one could start to get to the bottom of this, I have some thoughts. I am sure others do too. However, my prevailing thought is that it should go to a committee to sort out this approach, hear from appropriate experts and go from there.
Mr. Speaker, I would commend to you the decision of your immediate predecessor from October 6, 2005, at page 8473 of Debates. The Chair wrestled with a novel question related to new statutory and Standing Order provisions pertaining to the Ethics Commissioner and that the officer of Parliament's conduct in respect of an investigation of the hon. member for Calgary East.
In those circumstances, Mr. Speaker Milliken opined that he was prepared to find a prima facie case of privilege, “to afford the House an opportunity to pronounce itself on how it wishes to proceed”.
Indeed, Mr. Speaker Jerome asked, in his March 21, 1978 ruling on page 3975:
Does the act complained of appear to me at first sight to be a breach of privilege?
...or to put it shortly, has the Member an arguable point? If the Speaker feels any doubt on the question, he should....leave it to the House.
Mr. Speaker Lamoureux also took this perspective of a member getting the benefit of the doubt on October 24, 1966, at page 9004 of Debates and on March 27, 1969, at page 853 of Journals.
In the present novel circumstances, I think the same course of action is equally appropriate.
Before concluding, I want to turn briefly to the other source of contempt in this argument: the unjust damaging of a member's name as constituting an obstruction.
In the February 22 video, “Anonymous” accuses the hon. member for Provencher, through an inference by using sarcastic language, of nepotism in respect of an employee of a member of the other place.
Again, on February 25, it was said that, “It is widely known that you have engaged in criminal activity to further your political career, as you did in 1999”.
It needs to be clear that the hon. member has not been convicted of any criminal offence.
These statements are not only misleading but are false and can only be viewed as an attempt to discredit the reputation of my hon. friend.
Mr. Speaker Fraser's ruling on May 5, 1987, at page 5766 of Debates stated:
The privileges of a Member are violated by any action which might impeded him or her in the fulfillment of his or her duties and functions. It is obvious that the unjust damaging of a reputation could constitute such an impediment. The normal course of a Member who felt himself or herself to be defamed would be the same as that available to any other citizen, recourse to the courts under the laws of defamation with the possibility of damages to substitute for the harm that might be done. However, should the alleged defamation take place on the floor of the House, this recourse is not available.
Nonetheless, Mr. Speaker Milliken issued several rulings with respect to the damaging of a member's reputation, including some decisions with respect to mailings by a member into another member's constituency, as well as the previously mentioned case on comments made by the Ethics Commissioner.
Given this departure from Mr. Speaker Fraser's view, but more so the inseparable nature of the accusations from the threats contained in the video published by “Anonymous”, I would submit that the Chair should find this to be further ground for finding a prima facie case of privilege.
In closing, the Chair is faced with a case where those who have legitimately held concerns about some business before Parliament have gone about expressing their opposition, and seeking to secure actions in view with their thinking, in an utterly despicable manner.
Extortion and blackmail are not part of legitimate debate. Threats against MPs to vote one way or else are unbecoming of the Canadian political discourse. Not only are they awful and inappropriate, they cross a line. They are a contempt of this honourable House.
The ancient privileges of Parliament were first meant to secure the independence of members' actions free of the interference of the Crown. They subsequently broadened to encompass freedom from interference regardless of the source.
As an institution, we cannot allow this reckless and irresponsible behaviour to go completely unchecked. The first step would be to find a prima facie case of privilege so that the hon. member for Provencher may offer his motion to refer the matter to a committee where the facts can be investigated and the issues studied so that we may, as a House, respond to such behaviour now and in the future.