moved:
That this House reaffirm all of its well-established privileges and immunities, especially with regard to freedom of speech;
that, in order to clarify and assure those privileges, Section 3(3) of the Conflict of Interest Code for Members of the House of Commons, which is Appendix I to the Standing Orders of the House of Commons, is amended by deleting the word “or” at the end of paragraph (b) and by adding the following after paragraph (b):
“(b.1) consists of being a party to a legal action relating to actions of the Member as a Member of Parliament; or”;
that, pursuant to section 28(13) of the Conflict of Interest Code, the House refer the Thibault Inquiry Report back to the Conflict of Interest and Ethics Commissioner for reconsideration in the light of the amendment to the Code; and
that the House affirm its confidence in the Conflict of Interest and Ethics Commissioner.
Mr. Speaker, this is an issue that has been kicking around here for two or three months. The wording of the motion might make it seem like it is a trivial or technical thing, and it might even be seen as a little unconventional to make such a matter the subject of what we call an opposition day or a supply motion, but I and many others in the House believe this issue to be a fundamentally very important one because it has to do with my ability and the ability of all colleagues in the House to get up right now, to get up at any point in time, to do our jobs as members of Parliament.
It goes right to the core of what this place does as a place of debate, what members of Parliament do as they carry on their work of debating on public issues in the House, at committee, and actually in the constituency, out in the street.
Since parliaments began, the world has changed over that huge period of time. We now have another world of media: communications, television and text messaging all going on. The world is, of course, much bigger than what is here in our House.
There was a time not that long ago when just above us, just above where you are, Mr. Speaker, the media used to sit. We called them the press. Their benches are still there and their job was to report to Canadians on what we did in this House.
A lot has changed. The press actually do not sit there very much anymore because they can watch what we do on television. They make use of the communication facilities of the House. Indeed, by special arrangement and by special constitutional arrangements, what they do is quite special to us in the House.
We even let the media control a piece of our parliamentary precinct. The Canadian media control the press theatre downstairs. It is under their control and not the control of the political parties or the Speaker or the House, and there is a written agreement to that effect.
The point I am making here is that in the world of communications and what we do as members of Parliament, it is more than just what we say in the House. What we use to just do in the House has now moved out into the scrum area and out into the electronic universe.
Just for the record, I feel, and most members will feel, that we have to read some statement of the principle we rely on here, and I am going to read one. It is from the 1977 first report of the special committee on the rights and immunities of members of Parliament:
Freedom of Speech
By far, the most important right accorded to Members of the House is the exercise of freedom of speech in parliamentary proceedings. It has been described as...a fundamental right without which they [Members of Parliament] would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest and the aspirations of their constituents.
That refers to what is said in the House and by extension in committees. It does not necessarily, and technically perhaps, govern what is said outside the House and committees. What we are dealing with today is what is said or not said in the House and at committees.
The motion that is before us here today does not deal with communications outside the House and committees. The rules governing those communications are still out there. What we are talking about is the freedom of a member to speak freely and vote in the House of Commons.
The sequence of these events started about 20 or 25 years ago. Some lobbying went on, which has been generally spoken to and described in two separate files. One file is the airbus file and the other file is the Thyssen or Bear Head file, which are separate files but in some ways linked.
With a lot of lobbying going on 20 years or so ago, some money was moved around. The question that has come up now is whether the rules we had then were appropriate to guide public officers in either receiving, not receiving or managing those types of issues involving lobbyists.
The Standing Committee on Access to Information, Privacy and Ethics embarked on a study and did not do too bad a job. It reported to the House. It is not that all issues have been cleared up but a number of public issues were raised in that whole sequence.
In the context of that, one of the members of that committee said something outside the House, to which a witness at that committee study, a former prime minister, took objection and commenced a lawsuit. That was a slander action and it is still out there. It was not directly connected to what we do in the House at all, at least we did not think it was.
I have another set of facts that are on a collision course now. Those facts include the decision of the House to adopt rules of conduct and a Conflict of Interest Code, which was a good step forward. The code is in place and we now have an Ethics Commissioner who assists us in the interpretation and enforcement of that code. It has worked quite well so far but my recollection is that when the code was put in place it moved fairly quickly. It involved a complex set of issues.
Most members are quite happy and proud that we now have an Ethics Commissioner and a code. However, these two facts now collide when they are taken up by the Ethics Commissioner in dealing with a complaint about the member who made the alleged slanderous remarks. She, quite professionally, looked at the code and tried to figure out whether the member has some duty or obligation in the House as a result of what happened outside the House.
Inside the House, the commissioner points out that section 3 of our Conflict of Interest Code has a provision that says that members may not further their private interests inside the House but that outside the House they can do whatever they want. However, as members of Parliament, we are bound not to further our private interests in what we do in this place and at committee.
In defining a private interest, the Ethics Commissioner looked at subsection (3)(2)(b) of the Conflict of Interest Code which states that a private interest would include “the extinguishment, or reduction in the amount, of the person’s liabilities”. That is all well enough.
We have the member for West Nova, who is being sued outside the House. Does he have a private interest? The Ethics Commissioner decided that, on the face of it, it was not clear that a lawsuit outside the House was a liability so she decided that she would include in the definition of liability the term “contingent liability”.
The Ethics Commissioner included the words “contingent liability” in our set of definitions because those words are included in Black's Law Dictionary, not because we put it in our code, and that therefore the contingent liability she would focus on is potential liability, not contingent liability, in my view, that might be there in this lawsuit.
Therefore, because the member is subject to a lawsuit that might produce a judgment, which, in the view of the commissioner, could constitute a contingent liability, it would then fall within the rule that says that we should not further a private interest. She believes the member could further his private interest, this contingent liability, this potential liability in the lawsuit, by something he might do or not do in voting or speaking in the House. That takes us right to the core of the principle here today. It was her view that this set of circumstances must, by our rule, abridge the member's right to free speech in the House and at committee, not only the right to speak but the right to vote.
We have this interpretation that comes in through the back door. It certainly was an unintended result. I cannot recall anyone around here envisaging this back door route in interpretation to secure the logic that brought us to the point that would abridge, curtail, prevent the member from voting or speaking on this particular set of issues in the House of Commons or at committee. As I have said previously, that is intolerable.
The member for West Nova is, under our Constitution, completely free and unfettered to say whatever he wants outside the House in the media, in the scrum, in his riding, in his house, in his town council and everywhere else out there. However, inside the House, according to our Ethics Commissioner, he cannot speak freely.
This House is the one place in the whole country that is supposed to have, by constitutional root going back hundreds of years, the total, unabridged right of free speech for members but somehow we have ended up in a situation where the member has had that right taken away. If he follows the guidance and decision of the Ethics Commissioner, he has broken the rule and, therefore, may not speak and may not vote on those issues.
I submit that was a totally unintended result caused by what I call this back door, circuitous interpretation of the rules. I am not saying that the Ethics Commissioner made a huge mistake. She made a fairly mechanical interpretation of the rules. It was a little bit like a law school exercise. a syllogism made two plus two equals four, and she reached the conclusion, but did she miss the big one. She missed the fundamental constitutional right of free speech for everyone who serves in this place.
By coincidence, when we adopted the Parliament of Canada Act quite a few years ago, like 140 years ago, section 5 says that the privileges we have in this place are so fundamental that outside in the real world no one has to plead them to the court because all the courts in the country are, by statute, obligated to take notice in courts judicial notice of these privileges. They are very fundamental but most of the time we take them for granted which maybe we should not.
However, in this case the Ethics Commissioner somehow missed it. Maybe we should have listed our privileges a little more clearly in the Code of Conduct but we took it for granted and did not bother, so she did not interpret it. She read in Black's Law Dictionary the definition of “contingent liability” but she did not read our fundamental rights and privileges in this place. She never got there. In a sense I am saying that she should have but I must forgive her because when we wrote the rules we wrote them in a certain way that took a lot of things for granted. In fact, we may have written the rules a little too quickly but we wrote them and it was for a good purpose.
Where do we go from here? We need to assist the Ethics Commissioner to clarify the ruling and to fix our rules. It has created what people call a kind of libel chill.
I asked a week or two ago what would happen if someone decided to sue every member in the New Democratic Party or the Bloc Québécois caucuses for something allegedly mean and nasty they were doing or had said. Would that prevent every member of the caucus having a contingent liability under these rules and this interpretation from speaking or voting on something in the House? According to the Ethics Commissioner, it would if we take the literal interpretation of her ruling. There is no other conclusion one can draw.
We need to clarify the rule. As I do that, I need to address the context in the House. We are working in a minority Parliament and most of us will agree that the debate and the exchanges in the House have been rather testy, excessively partisan and maybe less than the standard we would want to use back in our ridings. In fact, most of us get along pretty well with other MPs back in our ridings. In the House, however, it is not working too well. I am urging members, in dealing with this motion, to try to put the partisanship aside.
One has to accept that it would be natural for a political party with a political stance, in dealing with something coming from another party in debate, to want to use whatever rule or device it could to repress, knock off, set aside or defend against whatever is being alleged and said. That happens in debate.
It is possible that some members may say that the ethics rule is good because it prevents those guys from saying those things. Many may say that we should let the Ethics Commissioner's ruling be the device to prevent that person or those people from saying those things because we do not like what they say. I urge members on both sides to take a step back and look at the broader picture.
I know we have all heard the adage “I don't like what that person is saying but I will defend unto death the person's right to say it”. That adage has been around so long I do not even know who originally said it. I am not offering death at this point. I am offering nothing more than our fundamental right in this place, which is that we have the right to say it in this place, though not necessarily out there.
The lawsuits can go fast and furious out there but in this place and in committees there is an absolute unfettered right to say it. I am urging members on both sides of the House to consider this objectively and to affirm the fundamental right we have to debate, speak and uphold the constitutional traditions and conventions that we have always had and which have now been, arguably, impaired by this ruling. We need to fix the rules and get the member for West Nova back on his feet on all issues.
