Roger Gallaway

[Questions on the Order Paper, February 4th, 2004]

Mr. Speaker, I ask that all questions be allowed to stand.

[Privilege, February 4th, 2004]

Mr. Speaker, I thank the member for St. John's West for raising this question of privilege because privilege is an important matter to the House and is one that needs to be discussed more often here.

However, sadly I cannot agree with anything he said here today. He has used a number of words that were very provocative and without foundation. For example, he has referred to the deliberate giving of false information. He has opened a new front with respect to Question No. 37 where he is now attributing motive. He is saying that there was some intention that was deliberate to mislead the House.

Second, he talked about contempt of the House. Let us go back and examine what occurred. This was a question that was put on the Order Paper pursuant to the Standing Orders. An answer was given which all agree was insufficient and incorrect.

A further answer was given on January 28. That answer was given to the member for Edmonton Southwest who had put the question on the Order Paper.

I would refer the hon. House leader, the member for St. John's West, to the Parliamentary Returns Guide which lays out the operational procedures. It refers to the Standing Orders and is very clear that an answer to a question on the Order Paper has in fact for years been answered by direct letter to the member. If an answer cannot be provided within 45 days as a rule, as provided by the Standing Orders, the member can wave that time and ask that the answer be forwarded to him or her when it is available. This is an old, longstanding procedure and convention of the House.

The fact is the government House leader forwarded the letter to the member for Edmonton Southwest on January 28. There is nothing new in any of that. It is a longstanding practice of the House.

What is being said now is that this was contempt of the House. I find this a very interesting conclusion. On the one hand an answer was given on February 14, 2003 by the former government House leader who undertook to look into it and on the other hand an absolutely complete answer was fulfilled on January 28. Now that all the information has been given, too much information is contempt of the House. They are complaining because they have too much information.

Once again I would refer to a book called Marleau and Montpetit, at page 443. I refer to footnote 204. I point out that there are no provisions in the rules, Mr. Speaker, for you to review government responses to questions on the Order Paper.

I would also point out that on many occasions in the past 10 years members opposite have raised this question of privilege. This is not a new phenomenon. In all cases, and I refer to footnote 204 on page 443, your predecessors have ruled, Mr. Speaker, that in no way are these prima facie cases of privilege and that in fact the Speaker has no right or authority to determine or assess the accuracy of the contents of documents tabled in the House or provided to a member in response to a question on the Order Paper. Therefore, in every case, of which there were four or five, it was held it was not a question of privilege.

[Privilege, February 3rd, 2004]

Mr. Speaker, I listened with great interest to the question of privilege raised by my friend opposite. He has referred to a great number of reports, questions and documents, obviously none of which I have had the opportunity to peruse.

However the fundamentals of his reasons, as I understand them, for believing that his privileges have in some way been offended or broken rest on Order Paper Question No. 194 which was raised at some point in the past.

I refer to Marleau and Montpetit, 2000 edition, page 443 where the general principle is laid out that there are no provisions in the rules for the Speaker to review government responses to questions. In fact, in the last 10 years at least, on various occasions members have raised questions of privilege on the premise that the information given in an answer to a question on the Order Paper was in some way inaccurate. In those cases they asked for a finding of a prima facie case of privilege.

I point out that in footnote 204 on page 443 it refers to a number of cases in the past 10 years where that was raised. In fact, in all cases the Speaker has ruled that it is not the role of the Chair to determine whether or not the contents of documents tabled in the House are accurate, nor to assess the likelihood of any hon. member knowing whether the facts contained in a document are correct.

In other words, in the response to a question on the Order Paper, it is not a question of privilege to go behind those responses to ask or to suggest that this is in some way a question of privilege.

The second part of the question of privilege raised by my friend opposite, as I understand it, deals with a report that was tabled in the House. He is saying that there are some inaccuracies in that report. Certainly inaccuracies in reports are matters which are always debatable and open to question, and that is essentially what my friend opposite is raising.

The most serious part of this is that he is suggesting that there is some contempt in this bundle of documents which have been referred to by the member opposite. He is saying that some of the contents of these are deliberately misleading statements, that in some way a minister has knowingly misled the House.

Once again I will say that I have not had the opportunity to review all of the matters raised by the member opposite but we do know that there is no breach of privilege with respect to the answer to Question No. 194, as raised by the member opposite. That is an established parliamentary ruling for which there are many precedents.

We also know that to find contempt requires a considerable onus on the person alleging that to establish that someone knowingly inserted false information into a report and, in doing so, attempted to mislead the House and the members of it. I would suggest to you, Mr. Speaker, that that in no way has been established. Again I would say that he disagrees with certain statements made in a large body of documents that he has referred to over a long period of time, but the veracity of that is debatable.

Having said that, I would suggest to you, Mr. Speaker, that there is no, on the face of it, prima facie case.

I have appreciated the intervention made by the member opposite but in this case I cannot agree that this is a prima facie case of privilege.

[Questions on the Order Paper, February 3rd, 2004]

Mr. Speaker, I ask that all questions be allowed to stand.

[Government Response to Petitions, February 3rd, 2004]

Mr. Speaker, pursuant to Standing Order 36(8) I have the honour to table, in both official languages, the government's response to 444 petitions.

[Blue Water Duty Free Shop, November 5th, 2003]

Mr. Speaker, last week in Cannes, France, the Blue Water Duty Free Shop located at the Blue Water Bridge in Point Edward was named the worldwide duty free industry's retailer of the year.

Competing against duty free shops from Abu Dhabi, Bahrain, and Hong Kong, this Canadian store was judged by the industry review panel to be the best in the world. The judging panel noted that this store turns “browsers into buyers”, creating a facility which is a “must stop”.

Operated by the Lee family of Point Edward, the Blue Water Duty Free Shop is the world leader for both airports and land border facilities.

Canadians often believe retailing was perfected outside our country. I am pleased to draw the attention of members of the House to a Canadian family who has created a centre of retailing excellence for duty free stores throughout the world.

[Shaughnessy Cohen Prize, May 28th, 2003]

Mr. Speaker, I am pleased to draw attention to and congratulate this year's finalists for the Shaughnessy Cohen Prize for Political Writing.

Sponsored by the Writers' Trust, this year's finalists, Stephen Clarkson, John Duffy, Colin Perkel, John Sayell and Daniel Stoffman are representative of excellence in Canadian political writing. At noon today, John Duffy was named this year's winner.

This award, named in remembrance of our late colleague, Shaughnessy Cohen, is especially meaningful to those of us who were in this House with her. Shaughn lived politics and loved to be part of any scheme, plan, mischief or gossip in and around the Hill. She always stated that any publicity or press story must be all about her.

Nearly five years after Shaughn departed this chamber and this life in her typically fast and, I can now say, dramatic style, I specifically and warmly congratulate the winner John Duffy. He has deservedly the right today to say, in matters of Canadian political writing, that it is indeed all about him.

[An Act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act, May 6th, 2003]

Madam Speaker, I rise on a point of order. With respect to the main motion, which I understood to be the third motion, I wish to be recorded as being present and voting against it.

[Points of Order, May 6th, 2003]

I will be no more than two minutes at most, Mr. Speaker.

I want to refer to the Australian parliament Debates of 1985, because in 1987 the Australian parliament actually dealt with its privileges. It codified them. In 1985 a debate came on about waiving privilege on a particular point. I just want to refer to Odgers because the thought is that because it was codified it does not apply here. This was before it was codified.

I refer to page 1038 of Odgers' sixth edition. It states:

In the course of debate, views were expressed by Senators that the Senate does not have the power to waive privileges. Senator Durack, a former Attorney-General, said:

I agree with Senator Gareth Evans that this Chamber does not have the power to waive privilege. It is a privilege conferred by the application of the English Bill of Rights of 1688 by section 49 of our Constitution. I do not think it is open to one House of the Parliament to waive or alter it. A declaration of both Houses of Parliament or another Act of Parliament would be required to change it.

I would say we are confronted with a similar situation, an identical situation. The motion before us would order that this House waive its privileges, those same privileges received under section 18 of the British North America Act, the cornerstone of our Constitution. They came to the House through the English Bill of Rights of 1688. It is one of the fundamental laws of the country.

For that reason I say to you, Mr. Speaker, that in waiving privilege we cannot do it because it requires an express act of Parliament, of both chambers. In this case to purport to waive privilege is an impossibility and therefore this motion is null and void. It is void ab initio.

[Points of Order, May 6th, 2003]

Mr. Speaker, I rise on a point of order related to the motion before the House. I want to ask for your indulgence while I say to you that the motion now before us is null and void and is therefore out of order. In legal parlance it is void ab initio . The motion should not be put to the House. The motion asks the House to waive its privileges or rights in this case with the understanding that this waiver cannot be construed as a precedent.

The motion was put on the Order Paper on December 6 in the name of the Minister of Justice, who is also the Attorney General. The motion in the name of the justice minister asks us to do something which cannot be done; it is an impossibility. The Minister of Justice knows that this motion, if it were passed, would be an order of the House. The minister knows that those rights and privileges referred to in the motion are those received and contained in section 18 of the British North America Act. It states in part:

The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof:

The minister knows that this is a fundamental part of our constitution and the law of the land. The rights and privileges referred to in the motion are fundamental constitutional matters. It is clear that this cannot be done. Any motion of the House cannot waive any other law.

I will give an example. Let us assume that on March 1, 2003, John Doe, who happens to be a member of the House, was charged with impaired driving under the Criminal Code of Canada. A motion is subsequently brought to the chamber requesting that the House waive the law of impaired driving against John Doe. It is clear we cannot waive the law of impaired driving. The Crown may decide not to proceed to lay charges or proceed in any way against John Doe, but the Crown has not waived the law concerning impaired driving. The law still exists; it still applies. It has not been waived in such case, so choosing not to apply the law is not a waiver of the law. Waiver of the law, in the case of privileges as contained in section 18, would require an express act of Parliament.

I would submit that the motion before us is identical to the example of John Doe just given. The cabinet, by this motion in the name of the Minister of Justice and Attorney General, asks the House to “waive its claims to insist upon such rights and privileges”. The cabinet is asking the House to waive its privileges as against it. It is asking the House to waive section 18 of the British North America Act, the very privileges that we were given as collective members of this House. It is asking us to waive these section 18 privileges. That is an impossibility and therefore the motion is void ab initio .

I want to give a second example. John Doe, a member of the House, makes a statement inside the chamber about an individual I will call Bill Black which, if made outside the House, would be actionable in law. A motion is laid before the chamber waiving the privileges for the statements made by John Doe in the chamber and permitting Bill Black to bring a suit arising from the statements of John Doe in the chamber.

The House could not waive the privileges of a member of Parliament by a simple vote of the majority. Such action would make mockery of section 18 of the British North America Act. The majority of members of the chamber cannot strip a member of privileges enjoyed as a member of the House in that individual's capacity by a simple vote of the majority on a resolution or a motion.

This motion purports to do what cannot be done. It purports that the collective privileges given to the chamber under section 18 will be gone. It purports to do what we cannot do in law.

Section 18 is the legislative legal authority to call the executive to account, so by waiving our privileges we live in a system of crown prerogative, that is, government by cabinet. If this motion were to pass and privilege is purportedly waived, I as a member of the House could apply to a court for a declarative order that this motion is ultra vires. The powers of this chamber would be gone. In purporting to waive our privileges, nothing would preclude a court from assuming jurisdiction with respect to this motion that has been brought to the chamber in the name of the Minister of Justice.

This chamber and we the members of the chamber would be reduced to no more than a municipal council, an elected assembly, without the powers bestowed by section 18 of the British North America Act. Without section 18 privileges, responsible government is gone.

Finally, I want to refer to a debate which occurred in the Australian parliament in 1985. It has been said about this, and I have read about it, that somehow--