Mr. Speaker, I rise on a point of order arising out of question period regarding comments made in relation to the Rt. Hon. Beverley McLachlin, Chief Justice of Canada, and the recent decision of the Supreme Court of Canada in the Nadon reference.
I direct the attention of all members of this place to O'Brien and Bosc, at page 616:
Attacks against and censure of judges and courts by Members in debate have always been considered unparliamentary and, consequently, treated as breaches of order....While it is permissible to speak in general terms about the judiciary or to criticize a law, it is inappropriate to criticize or impute motives directed to a specific judge or to criticize a decision made under the law by a judge.
Today we heard a spirited critique from the Prime Minister of the Supreme Court's decision in the Nadon reference, but more important, I remind the House of what the Minister of Justice said on Monday:
Mr. Speaker...my office was contacted by the office of the chief justice. After I spoke with her on that call, I was of the considered opinion that the Prime Minister did not need to take her call. One thing I can assure the hon. member is that neither the Prime Minister nor I would ever consider calling a judge where that matter is or could be before the court of competent jurisdiction.
As Acting Speaker McClelland noted on April 1, 1998, and found at pages 5653 of the Debates:
This is a longstanding tradition in our Parliament that we be cautious when we attack individuals or groups, particularly in the judiciary, and those who are unable to come in here and have the same right of free expression as we enjoy with impunity here.
A similar sentiment comes from Acting Speaker Thibeault, on June 9, 1998, wherein she said:
All Speakers of the House have always considered references to magistrates and tribunals unparliamentary when they took the form of a personal attack or blame. I will therefore ask the hon. member to choose his words carefully and to be careful about attacking the court.
I realize the government may say that this is an issue of parsing words and that its comments are neither blame nor critique. If that is the case, I certainly invite those members to clarify the record lest the impression remain that there is any allegation of wrongdoing on the part of the Chief Justice. However, that still does not solve whether or not the comments were proper in this place.
As Erskine May's Treatise on the Law, Privileges, Proceeding and Usage of Parliament, 24th edition notes, at page 396:
Certain matters cannot be debated except on a substantive motion which allows a distinct decision of the House. These include the conduct of...persons holding the position of a judge...Such matters cannot, therefore, be raised by way of an amendment, or an adjournment motion. For the same reason, no charge of a personal character in respect of these categories of person can be raised except on a direct and substantive motion.
This is the key line regarding question period, “No statement of that kind can be...included in reply to a question”.
Previous Speakers have voiced their concern about this practice, finding “comments about the judiciary are out of order”. That is at page 13354 of the Debates, of May 16, 1986, and that “...I am certainly not satisfied with that approach on the appointment of a judge”, regarding a question a member put on September 19, 1991, found at page 2401 of the Debates.
I think my point has been sufficiently made though I must draw the attention of the Chair to a decision of then Speaker Rodolphe Lemieux, dating to February 18, 1926. He said, on page 1106 of the Debates:
Under the rules of the House: All references to judges and courts of justice and to personages of high official station of the nature of personal attack and censure have always been considered unparliamentary. I would also call the attention of the hon. member to paragraph 234 (i) under rule 19, which says that a member must not: ...cast reflections upon the conduct of judges of superior courts unless such conduct is based upon a substantive motion.
This idea also forms expression in Beauchesne's Parliamentary Rules & Forms of the House of Commons of Canada, fourth edition, wherein it is written:
The proper course for persons who feel called upon to attack the conduct of a judge is to proceed by way of a petition in which all the allegations are specifically stated so that the person accused may have full opportunity to answer the charges presented against him.
What we have seen from the Minister of Justice and the Prime Minister are attacks on the judiciary and a sitting judge, comments imputing motives and maligning the reputation of a person who is not only not able to defend herself in this place, but whose sterling reputation is not even a matter open for debate.
Rather than parse words and dance around this issue, I ask the ministers responsible to withdraw any references made regarding the chief justice that might even remotely cash aspersions upon her conduct.
While you, Mr. Speaker, would be right to find the minister's comments have been unparliamentary and should be withdrawn, I would suggest for the members in question that rather than seek to defend such comments as permissible exercises, they should seek to clarify any misconceptions that the public may have gleaned from the debate as, indeed, the words we use not only are important as regards the traditions and practices of this place, but echo and resonate across the country to an attentive public.
In short, the government should apologize to the House for its comments that are unparliamentary, likewise apologize to the chief justice, and, similarly, to Canadians for their audacious behaviour that unwarrantedly brings the judiciary into disrepute.
I would ask all members to join me in congratulating the chief justice on recently beginning the 25th year on the court and for serving all Canadians with great distinction, as we hope she will continue to do for years to come.
