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EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 17, 1995

.1106

[English]

The Chairman: Order, please.

Before we embark on the itemized business for today, I want to make a couple of suggestions to the committee that I hope you'll find agreeable. In light of the sudden developments, I'm taking some liberties since we haven't had a meeting of the steering committee to discuss this.

As you know, this committee has a fair bit of work on its plate. If they haven't already done so, committee members will receive a report from the Speaker on the financial planning of the House - I've forgotten the title of it - and the Board of Internal Economy will be meeting to deal with estimates starting in November and will be finalizing estimates soon thereafter, in fact, in late November.

If this committee wishes to make any comment on the future financial planning of the House, it is important that we meet on the matter quickly. The Speaker is prepared to appear before the committee, assisted by the very able Clerk of the House, and next Tuesday would be a possibility for such a meeting. I therefore propose, with your concurrence, to deal with that issue at next Tuesday's meeting.

If members would read the financial material that has been provided to you and bring your questions to next week's meeting, we could do that. I realize that disrupts our schedule slightly, because we have electoral boundaries to deal with, and I'm going to suggest that we meet on electoral boundaries on Thursday next week, which would mean an extraordinary meeting. We don't normally meet on Thursdays, to allow our subcommittees to meet, but I'm giving this advance notice because I have a feeling it's going to take more than one meeting to deal with the four reports on electoral boundaries, which will be in our hands by that time.

I'm therefore suggesting Thursday of next week and Tuesday of the following week on electoral boundaries. If we need a third meeting on that issue, it would be on the Thursday following.

This delays somewhat complete consideration of Mr. MacLellan's bill. I think if we're lucky we may squeeze that in, and if necessary, we'll have another Thursday meeting to dispose of that plus the electoral boundaries at the end of the third week.

Is that agreeable to members as the agenda for the next couple of weeks?

Mr. Boudria (Glengarry - Prescott - Russell): Agreed.

The Chairman: Second, in order to avoid possible quorum problems toward the end, I wonder if it would be worth dealing with item 3 on today's agenda:

[Translation]

consideration and adoption of a draft report to the House from the Subcommittee on Private Members Business.

Mr. Arseneault moves that the draft report be concurred in and presented to the House.

[English]

Motion agreed to

[Translation]

Mr. Laurin (Joliette): Are these the amendments to sections 10, 11 and 18 of the Standing Orders? Is that another report?

The Chairman: It is simply the draft report from the Subcommittee on Private Members Business.

Mr. Laurin: Very well.

[English]

Mr. Boudria: Mr. Chairman, on this report, it's confidential until tabled, is that right?

The Chairman: Yes.

Mr. Boudria: Thank you.

The Chairman: Mrs. Parrish, did you want to say something on this report?

Mrs. Parrish (Mississauga West): Yes, I did. I wanted to congratulate the committee on the speed with which they processed this series of bills and motions and thank them for their cooperation. The clerk was amazed at how quickly it came to a conclusion, so it's in good shape. I'm very confident moving this forward and I'd like to thank the clerk. He guided me through when I didn't have a clue what I was doing, and it worked well.

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The Chairman: With the adoption of this report and its presentation in the House, how many vacancies in the number of votable items will remain, if any?

Mrs. Parrish: At this time, none.

The Chairman: Thank you.

Today we have with us the Clerk of the House and his able clerk assistant for procedural services, Mr. Montpetit.

[Translation]

Both are very well known of all members of Parliament.

I would like to thank you for being available, because I know you're very busy in the House.

[English]

The order of business is a review of the issue of naming of members, originally raised at a meeting last June. I must say that given the recent question in the House, this matter appears to have attracted some national attention.

Mr. Ted White, in an article in some local newspaper in his riding, wrote:

I've been receiving multiple copies of this article since. That may provoke some discussion. I have no idea which paper it was.

Mr. McWhinney (Vancouver Quadra): On behalf of the University of British Columbia, we reject these unwarranted aspersions on an institution now considered the premier research institution in Canada.

The Chairman: You'll have to speak to Mr. White.

Some hon. members: Oh, oh!

The Chairman: I thought it might provoke trouble.

Mr. Boudria: To start off the debate, there are two concepts, and one should not be confused with the other.

One, the ability of an MP to be immune from civil prosecution for anything he or she says in the House, which is also extended to any witness appearing before a committee of the House, has to be sacrosanct.

Our colleagues will remember the case of the British Columbia woman a couple of years back, who testified before a parliamentary committee at my invitation at that time. I believe the lady's name was Cheryl Eckstein. After appearing before a parliamentary committee, Mrs. Eckstein was threatened with a lawsuit by a CBC producer for having used some of her footage in her presentation.

The CBC personality was properly chastised for what she did, not only for making that threat, which of course she couldn't have followed up on, but secondly for intimidating the witness and possibly stopping further witnesses from ever appearing before a parliamentary committee. If anyone fears he or she could be subject to prosecution, correctly or incorrectly, they and others could be prevented from appearing, and Parliament then could not have the benefit of their testimony.

The same applies, more fundamentally, to all of us. We have to be able to say on the floor of the House of Commons what our constituents think. If our constituents think a particular issue must be raised, we cannot be in a position where someone might threaten us with a lawsuit for something that's said in the House of Commons. That's one concept.

The second one - and it's not the same - is whether or not the House, not the government, has the authority to make rules for its proper functioning. It has had that right from time immemorial.

Those are easily recognized propositions, one not necessarily the same as the other. I suppose you could argue that you could make them the same. But that's not so.

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Finally, Mr. Chairman, the long-standing tradition has been that when we amend the rules of the House we generally do not do it by a division bell; we usually do it by a unanimous report of this committee, carried unanimously by the House. Therefore, it becomes the will of the House to proceed.

I remember the controversial - although I don't know why it was controversial - issue of us changing the prayer of the House, for instance. We've also changed several other rules, from how we appoint members to committees, to the time of day we sit, to whatever else we do. Those are all things we generally agree to in this committee, and in virtually all cases they are adopted by the House. So it doesn't become, as alleged in that particular article, a matter of the government preventing the opposition from speaking or some such thing. That's utter nonsense.

The Chairman: C'est tout.

Are there other observations from members on this important issue?

Mrs. Catterall (Ottawa West): I think it's important to remember that what the committee is considering will not stop members from expressing the opinions and views of their constituents. It is trying to address whether we have an appropriate and effective way to avoid members of Parliament insulting one another, or a whole group of members of Parliament, by their words. Before we hear from our witnesses I'd like to address that for a moment and indicate why I take this issue very seriously.

I sat in the last parliament and heard a colleague of mine refer to other colleagues as ``slut'' and ``Sambo''. When the word ``slut'' is thrown across the floor of the House of Commons, it's not just an insult to the person to whom it is addressed; it is an insult thrown across the floor related specifically to the fact that the member of Parliament is a woman. I can tell you, as a member of Parliament and a woman sitting in the chamber when that happened, I felt like I had been kicked in the stomach, and there is no other way to describe it. To think about it now makes me cringe.

What it does is diminish my ability to be effective in the House of Commons and to feel that I belong there equally with Mr. Ringma or Mr. Laurin or Mr. Malhi. It diminishes not only the respect with which the particular target of the insult is held by the House and the public, but the respect with which all women members of Parliament are held by the public.

It does the same thing when someone is insulted based on colour or sexual orientation.

We had this discussion a couple of weeks ago about whether a certain remark by another member of Parliament was sexist. When you imitate the quality of my voice because it's a higher voice than most of the male voices that have rung through these halls for over a century, yes, that is sexist. It again draws attention to the fact that I am a woman, not a parliamentarian.

When I am within these walls, when I am in that chamber, I want to be treated as a parliamentarian, equally deserving of respect as every other member of Parliament.

This issue became so serious in the last parliament that the Speaker himself established a special committee to look into how to bring an end to it. It was an all-party committee and made some very strong recommendations that what we have on the books now is not adequate to ensure the respect for all members of Parliament necessary to allow us all to perform our functions on behalf of the Canadian people on an equal footing.

I don't think we should restart the work that has already been done by that subcommittee. I think we should revisit their recommendations. Their conclusions were clear and unanimous among all parties. There was one minor difference about the correction to the situation.

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But simply being able to fling an insult across the floor and then to say it doesn't matter because it'll be withdrawn or apologized for isn't good enough. That is not a deterrent. That does nothing to improve the demeanour in the House or the respect in which all members of Parliament should be held.

There has to be a clear decision by this Parliament that with this kind of behaviour and language, which is so demeaning, insulting, undermining, and offensive, the member simply can not continue on his or her merry way. I don't care from which side of the House those comments come; they are unacceptable. The House has to show its contempt for someone who holds the House and other members in such contempt in a much more tangible way then by simply saying that it's naughty, so please apologize. Those words are on the record. They hang in the air. They hang in my mind. I won't put up with it. And I won't put up with it for future generations of parliamentarians, Mr. Chair.

Thank you.

The Chairman: Perhaps arising out of your comments, Mrs. Catterall, the clerk could clarify something for us. It is my understanding that under the current rule, when the Speaker names the member, the member is then expelled for the remainder of the day. But is it still possible to move a motion to provide some additional penalty for the offending member? Could that motion still be moved by someone in the House and could a question be put on it?

Mr. Robert Marleau (Clerk of the House of Commons): The practice in the past of the government House leader moving the motion for expelling, I believe, is still usable. It was not discarded by the McGrath recommendations and changes of 1985. The powers of the Speaker were enhanced to do so without a formal motion, but I believe that mechanism for disciplining members is still available to the House independent of this power the Speaker has now on the Standing Orders.

Mr. Ringma (Nanaimo - Cowichan): On a point of clarification, I can only agree that a word like ``slut'' being hurled across the floor is totally unacceptable. I take it that it is in the rules of the House that such words are forbidden or not acceptable. Is that not correct?

Mr. Marleau: It would be ruled unparliamentary by the Speaker as a matter of order.

Mr. Ringma: I presume we have a fairly comprehensive list of such epithets. I think it has to be a good starting point for us to know where the boundary is. It's obviously unacceptable to me, but I presume that the rules that were shaken up just refine that a bit, because it was....

Was it acceptable? Was it accepted at that time?

Mrs. Catterall: The issue is not whether it was acceptable or not. Let me make two points. The issue is whether in fact the way the House, and the Speaker in particular, are able to deal with such occurrences is adequate to act as a deterrent to members and to encourage an improved standard of behaviour among all of us.

The second point I would like to make is that I'm here to enter into debate along with the best or worst of you, whatever the case may be. I think I will even tolerate a certain level of insult. But something that is racist and sexist is, in my view, a different quality of insult, for the reasons I've just outlined.

Mr. Frazer (Saanich - Gulf Islands): If I can address the particular issues that Mrs. Catterall brought forward, I also object to the term ``slut'', not necessarily because it pertains only to women, but because of the connotation it has. While I certainly don't agree with our confrère's mimicking of a voice, I don't think this was intended as an anti-female thing. It was a method of speaking, if I may, that was being referred to.

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Again, I'm not supporting this in any way. I'm just saying that I don't necessarily agree with your proposal that this is anti-woman. I don't condone it in any way, but I don't think those two particular examples were necessarily anti-women. They were made to make a point, and they were poorly made.

Mrs. Catterall: I guess I haven't made my point clearly enough. They are anti-women. Only I as a woman can determine whether a remark is insulting to me as a woman, whoever it's directed at. Nobody else can determine that - except the Speaker.

The Chairman: On matters of order in the House, of course the Speaker is going to have to make that determination.

Mrs. Catterall: I did add ``except the Speaker''.

The Chairman: Mr. McWhinney.

Mr. McWhinney: I wanted to return to some of the general principles before Mr. Marleau testifies.

Mr. Boudria has made an excellent résumé of parliamentary history. It should not be forgotten that Parliament unites in itself all the powers of government. It is vestigially a court. In fact, in the 17th century it was still referred to as the ``high court'' of Parliament. So it has inherent judicial powers and precedents that in effect limit and define what it may do. In fact, in making an expert opinion for a legislature some years ago, I simply cited the practice and the vestigial judicial powers.

So there is no issue that Parliament has power to impose its own penalties. It is required, according to practice, to proceed judicially in so doing. Obviously the rules have attempted to codify those, but it is certainly within the capacity of this body, the Parliament, to establish new rules.

The traditional courts respecting the historical origin, as you will know, Mr. Chairman, do not intervene in parliamentary affairs. As strictly defined, the control of an abusive legislature is basically public opinion and public reaction. Fortunately, we haven't had too many abusive legislatures within our system.

I would be most interested to have Mr. Marleau's comments on this, but at a certain point in these issues you find you are going back before the separation of powers and Montesquieu was partly injected into our constitutional system. The judicial powers are there, including the powers of establishing penalties, which can be very substantial.

The only thing one would say is that great self-restraint normally has been exercised. In fact, in the expert opinion I referred to, I recommended no action; simply publicizing the issue was enough.

But I'd be most interested in Mr. Marleau's additions to what Mr. Boudria said, the expert gloss he can give based on our parliamentary practice.

[Translation]

The Chairman: Mr. Marleau, do you want to hear comments from other members of Parliament before you answer the question?

Mr. Arseneault, you have the floor.

[English]

Mr. Arseneault (Restigouche - Chaleur): Thank you very much, Mr. Chairman.

I just want to support what Mrs. Catterall has said. I sat in the last parliament as well, and I heard some of those remarks. I think the issue here is not whether or not the remarks are unparliamentary but what type of sanction goes with those remarks. If a parliamentarian can sling words like that toward other members, what type of sanction is it for that member just to stand up and say that they withdraw the term, or that they apologize, that they didn't really mean it? There has to be something to deter that member from doing it again and also to deter other members from following the same action.

I think there has to be a point of clarification here, Mr. Chairman, in the sense that when you opened the discussion today you made some remarks and you quoted from some documentation, or an article in the press, from another member of Parliament. It talked about a Liberal majority. Obviously there is a Liberal majority on this committee, but the recommendations we're looking at were recommendations of a committee from a previous parliament, a committee on which we didn't have the majority and a committee that had all parties represented and basically all-party support, that there had to be some sanctions.

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I'm not saying I agree totally with the sanctions that are recommended here, but I do know we have to give the Speaker a little more power to deal with racist and sexist remarks. I think if we look at past parliaments and our present parliament, we will find that Speakers have been very judicious in their rulings and not too quick to name members and to take punishment. In fact, they try to take the diplomatic way out in most cases.

Because the Speaker is actually a servant of the House, I think we have to give the Speaker some authority, more authority than Speakers have had in the past. If we can use Speakers' records, previous Speakers from various parties, they have been very judicious and we should look at this report in a serious light.

With that, I reiterate that I'm not necessarily approving all of the sanctions that are in here. I'd like to get into more details later. I'd like to maybe make a comparison with what other sanctions are used in other parliaments. I saw an example last evening of an occasion in the Ontario legislature where a person was named. I don't know all the members in Ontario, but it looked like it was a rookie member who didn't really realize what naming meant. The Speaker asked him to withdraw a word and he didn't withdraw. The Speaker said, ``Will you withdraw?'' and he said ``No''. Then all of a sudden the sergeant-at-arms was leading him out. I don't think he really realized what he was doing or the procedure involved.

So I say to you, Mr. Chairman and others here, it is a very serious matter when we deal with comments that have been made in the past, and in the last parliament, and I think it's serious enough that we should deal with it here and not wait until emotions are high and we run out to the media and say we should do this to this person and that to that person. Let's do it now when we have clear heads, put the sanctions there that are necessary to prevent such abusive action in the House.

Thank you.

The Chairman: Mrs. Parrish is next.

Mrs. Parrish: Thank you, Mr. Chairman.

I think I'd like to take a giant step back from the list of sanctions. As much as I support Madam Catterall, I think the problem is far more fundamental than rules and regulations on language use.

I was chairman of a school board. The language and the shouting and the carrying on that goes on in the House of Commons is more like what goes on in a grade three classroom. When I came here I was absolutely awed by the stature of the buildings. My husband came and he was allowed to sit in the seat of a member of Parliament for the orientation section and he was practically in tears. He didn't want to move around and he didn't want to wiggle because it was a very special place.

One party came to this Hill saying they were going to change the tone of what goes on in there. I think all three parties stink on this one. I think we behave like gladiators, more like people at a cock fight than people at a parliamentary session. I think if there was a strong resolution by all three parties to stop the catcalling, stop what causes the adrenalin to flow and the bad language to come flying out of people's mouths, and if we made a resolution in this parliament that we will not tolerate our own colleagues shouting across the floor and behaving in that manner, we could change it once and for all.

It is more like a grade three classroom in there, even to the point where when someone gets up to ask a question there's a round of applause. It's like getting your gladiator ready to get in there and fight and get the adrenalin up and get good judgment down.

As for the comments Mrs. Catterall referred to, you wouldn't do that at a cocktail party. Why we do it in the highest House of the land is beyond me. I'm ashamed of people who sit on my side of the floor and I'm ashamed of people who sit opposite me. Luckily, my French isn't good so I can't get too upset with the Bloc, because I don't get half of what they say.

The point is, none of us are behaving like civilized human beings. And if we have to give ourselves a bunch of rules, it's like being vice-principal in a school - don't chew gum, don't stick it under the desk, don't do this, don't do that; break the rules, get a detention. We're not children. I don't want a bunch of rules. I want us to make a resolution in this committee and then go to our individual caucuses and make a resolution there that if one of our own colleagues starts to misbehave like a child, the rest of us will tell that colleague to stop.

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The whole tone of that House has to be changed. That's my position.

The Chairman: Madame Ringuette-Maltais.

[Translation]

Mrs. Ringuette-Maltais (Madawaska-Victoria): Given that you're studying all the regulations and disciplinary measures concerning MPs, I'd like to use the opportunity to call something to your attention.

I don't need to remind you of the incident that occurred last June, involving me. It wasn't a matter of verbal insult, but rather of assault and physical insult to my person within the House.

I'd like the committee, as it examines the rules and disciplinary measures concerning MPs, to pay careful attention to a precedent which was probably set at the House. If it happens again, I want very strict disciplinary measures to be taken against those people who abuse their physical strength in this House.

[English]

Mr. Boudria: As much as we might dislike it, we do need to have good and strong rules. Parliament has always had them.

Beauchesne's citation 1 describes the principles of parliamentary law. They are:

That's an important citation, and in it he balances all these things.

On the one hand, sometimes the place is rowdy, sometimes it is theatrical, and sometimes it is piqued from a lot of emotion. Some people, depending even on their culture, community, and so on, speak with more emotion than others.

I don't think there's anything wrong with that. I think it's okay. It's part of what we do. We make totally illogical propositions from time to time. We speak from gut feeling on other issues from time to time. We speak from the heart on other issues. That's all okay. It's not always the same, and it's not just a machine to process legislation. It's more than that.

On the issue of objectionable language, perhaps gestures, even assaults, are important too, but not all objectionable behaviour has been ruled unparliamentary before. So when Mr. Frazer refers to the established precedent, it's important to note that it continues to evolve. The list keeps getting longer. It isn't a fully developed list, nor can it ever be. It always changes. That's the first thing.

When something is ruled unparliamentary, either because it was before or because it is now, by the Speaker, it's subject to discipline.

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The first thing is to ask the member to retract or withdraw the words he or she has just pronounced, but in the modern electronic age no withdrawal is complete. Whether we like it or not, once something has been uttered and heard on television or processed on videotape, you can withdraw it all you like, but it's still there. It's not like the age of only the written Hansard, when after someone had withdrawn some objectionable language, it disappeared or could have disappeared from the Hansard if that was the wish of the House. That can't be done any more.

I suppose we could construct scenarios to make it that way, allowing for half-hour time delays for broadcasts and so on to remove things that would be objectionable. It's not very practical, but I suppose it could be done that way, technically. But in the real world I suggest to you that right now no withdrawal is complete. It's always incomplete by definition.

Therefore we have to be even more careful than we would have been one, two or three generations ago, because we have to deal with that now. That's another element for us to consider.

Once that's done, if the withdrawal is not sufficiently complete or even if the withdrawal is done to everyone's satisfaction in the House, there is still some residual effect, as I said. If the person refuses to withdraw whatsoever, that's even more true.

Then there's the whole issue of sanctions to be imposed, depending on whether someone has withdrawn, quasi-withdrawn or not withdrawn at all. Here is the crux of the matter. The sanctions we have right now are insufficient to deter people from repeating the offence or even from offending to start with.

A report was prepared, and I was part of that committee on a rather ad hoc basis because I was the deputy whip and deputy House leader in opposition, as were you, Mr. Chairman, at least in the position of deputy House leader, not deputy whip. But I don't think you took part in this committee. I did participate in it, and there were some increases in sanctions there.

There are two purposes to that. It's not just to give the power to the Speaker, as my colleague Mr. Arseneault said, but that's an element too.

The second thing is to give guidance to the Speaker, because the Speaker is a servant of the House, again as Mr. Arseneault said, and it's quite true. He is the servant of the House and I'm sure he wants guidance on how the House feels the discipline should be applied. It would be only normal for him to want that. Why would the Speaker want to impose - and let me just use a fictitious example - a two-week penalty when what the House would expect of him would be a one-day penalty, or vice versa for that matter? That's why we're here and that's why we should give that kind of guidance.

I think we should concentrate on the report of the special advisory committee in the last parliament. I don't agree with everything in it, but a lot of what is in there is good. For instance, when someone is suspended, it shouldn't be for the rest of the day; it should be for the rest of that day plus a full day. Also, suspension doesn't mean from the House; it means from the House and any committee of the House.

Those are all there. I think we should go to each clause in it, extract what we think would be appropriate and use it to amend our rule so that Mr. Speaker could be guided when imposing disciplinary measures in the future.

[Translation]

Mr. Laurin: Mr. Chairman, we must agree on the purpose sought when we move amendments to the act. However, I also think that we have to move very carefully. When we talk about describing words as acceptable or unacceptable in the House we must remember that words are only as important as the idea they transmit. It's only in the dictionary that words have an objective meaning. As soon as words are used by a person, they become subjective.

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If we allow the targeted person the right to judge whether the word in question is offensive or not, we run the risk of relying on the degree of sensitivity of individuals regarding the usage of a given word.

If someone called me big fellow, I might be offended. If the same was said to Mr. Boudria, I doubt whether he would be offended. The message one is seeking to communicate by using the word ``big'' depends on the person being addressed. And yet, the word ``big'' in itself is not necessarily pejorative.

When you sit in the House of Commons, you're always defending the ideas and philosophy of a party. Since each party has an interest in finding that the people opposite are abusing the meaning of certain words, we may end up assigning an exaggerated significance to the words used.

It is always in the interest of any party in the House of Commons to make the other party look bad. Tomorrow morning, I may feel extremely offended by the terms used by a government member because it would benefit me to take advantage of a faux-pas committed by a member of another party.

We run the risk of impeding freedom of speech if we go too far in granting ourselves powers in this regard. In my opinion, no word when taken objectively is in itself pejorative.

You would be lying in the House of Commons if you claimed that today was Friday. And yet, if I said that today was Friday and that other members rose to say I was a liar, the word ``liar'' in that sense would not be very pejorative. If we decreed the word ``liar'' is unacceptable in the House, we will spend all our time apologizing.

I feel that the Speaker must judge the hidden intention behind the words used. That's the power we have to grant the Speaker, with limitations. The Speaker should not end up spending his time kicking members out of the Chamber. There has to be limits to the penalties.

I think we have to give the Speaker sufficiently coercive powers so that he has full control of the House, but also to allow members to express themselves very freely by using words that are sometimes harsh. Just because a word is harsh does not necessarily mean that it is disrespectful, and someone in authority has to have the power to judge the consequences of such words.

The same is true with regard to penalties. I think there have to be some, but appropriate ones. It may be acceptable to suspend a member for a day, for the rest of the sitting. In the case of a second offense, it could be five days, and a third offense, 20 days. But when you get to the point where you're cutting off members' budget allocations, it amounts to saying that a member only earns his salary when he's in the House.

A member of Parliament does not earn his keep only by his attendance in the House. He also earns it through work in his riding office and his Ottawa office by meeting with the people he represents. When you deprive a member of Parliament of his earning as a parliamentarian for 5, 10 or 20 days because he's been suspended, that's going too far. A member who is disciplined in this way would be better off taking some holidays. He would say to himself: I was suspended from the House for 20 days; I'm going on holiday, because I'm not being paid to work. At that point, we would be depriving citizens of fair representation. Even if their member is not in the House, he could still continue to do his job by working on other issues.

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I think that this report contains extremely lucid recommendations that we should agree to. However, let me remind you that we have to protect the freedom of speech of members of Parliament and not go too far with regard to automatic suspensions.

[English]

Mr. Ringma: Mrs. Parrish mentioned there was sort of equal fault on the Liberal benches and across the way, but she was not sure because of language where the Bloc fit in.

While I have seen the Bloc have a member named, I've nevertheless come out with a fairly strong impression that the Bloc has shown a bit more decorum in the House than the other two parties. My conclusion from that very simply is that maybe we should tune in a little bit more -

[Translation]

We have to listen to what the people from the Bloc Quebecois have to say about this, because they have something for us.

[English]

That's all. It's just a reflection.

The Chairman: Perhaps the Clerk would like to say something in response to the items that have been raised by members.

Mr. Marleau: I'd like to give you some context. I cannot engage in the debate you are engaged in. I'll try, as an officer of the House, to be very careful not to be qualitative in my comments because I believe this is a very complex issue.

This morning I reread my testimony from when I appeared before you in June and made the following point. The current power of the Speaker to name a member and consequently order him to leave for the remainder of the sitting is truly a matter of order. The contest is with the member who refuses to withdraw a particular piece of vocabulary that has caused the disorder. The Speaker's intervention is usually as a result of disorder, not of the word being uttered specifically. I think Mr. Laurin was trying to make that point.

It's then a contest between the Speaker and a member as to the recognition of the authority of the chair, and not of a so-called offence that has taken place. It may be in the eye of the beholder as to the degree of the offensive word, gesture or act that may have been used.

At that point, the Speaker is engaged in a discussion with the member, usually pleading with him or her to recognize the authority the House has vested in the chair, and not specifically about the word that has been used. Because a disorder has taken place, the duty of the chair is to maintain order and decorum and the dignity of the House, and his or her interventions are from that perspective. I would like to underline that.

I think I commented that the change in the rule in 1985 put the Speaker and the offending or recalcitrant member in a difficult position, with the entire House acting as witness. In other words, the House simply observes this exchange. The reaction may range from ``throw him out'' to the parties sometimes orally participating in support of the recalcitrant member by saying, ``Don't withdraw, stand by your statement''. Therein lies the complexity of the discussion you're having.

On the one hand, you seem to want to deal with the offensive language or comportment of a member, and expect the Speaker to pass judgment on to what degree the statement or action is offensive, not only to the member in receipt of the offence,

[Translation]

for example in the case of the word «big»,

[English]

but also to what degree it offends the House's dignity and at what point it causes a disorder. The Speaker's first instinct is to wait for disorder to occur.

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The point Mr. Boudria made about freedom of speech is also extremely relevant, I think, because it's also linked to intimidation in a way. If a member wishes to say something in the chamber that he truly believes to be right and yet outside the House it would be a slanderous, libelous message, the member needs the security, if I can put it that way, in parliamentary debate so that he will not be intimidated by his actions or utterances in the chamber. That is a privilege that should not only be sacrosanct, but it is one that the Speaker has difficulty in dealing with from the chair. Every Speaker's intervention in that kind of context can be an infringement on the freedom of speech of the member who legitimately has the floor.

So the Speaker is weighing disorder on the one hand and freedom of speech on the other, in terms of interfering with a member. It could be on a matter not of disorder but of relevance or repetition, which is the other dimension on which the Speaker should act unilaterally.

As I said in June, I believe the rule, which was an attempt to reinforce the Speaker's authority in 1985, has weakened the chair in a way, because then all members no longer participate in the ejection of the member.

The procedure the chairman referred to, which was used in the past and is still used in Britain, is that a motion is made, usually by the government House leader, to suspend the member from the service of the House, and then the House proceeds to vote. Every member rises and judges his peer by a yea or nay in terms of how offensive the remark may have been or in support of the chair's authority, but it's still in support of the Speaker at that point because the Speaker has named the member. Technically the House could defeat that motion. Then the Speaker is in an awkward position of having named a member, in his judgment, and the House has absolved him.

That almost happened under Speaker Jerome, where there was a hesitant government House leader who, following the naming of a minister, took an uncomfortable amount of time before moving the motion, with Speaker Jerome sitting there with his brow getting a little sweaty, I believe.

In the context of the discussion you're having, the Speaker has no power to order an apology. There is usually a demand being made by the House in these contests between the Speaker and the member to force the member to apologize for what he or she has said or done. All the Speaker has is the power to name. Historically, in naming the member, the Speaker then demanded of the House that it deal with the impertinence or the undisciplined member. The formula was to refer the matter to the House for a vote and determination.

There is also the concern of the impact of television. In the last parliament a member was being prima facie libelous in the context of his remarks. An objection was made, and while reinforcing the freedom of speech of the member in the House, Speaker Fraser reminded the House that with television, the impact of freedom of speech had been broadened and there was a greater responsibility on members in the modern age. Where it used to be a club where mostly men spoke to each other, trying to convince each other, it has now turned into a much more complex composition, and not just from a party point of view. With the advent of television, the message gets out across the country instantly.

The Speaker didn't go as far as saying that he would limit that. He reminded the House of the impact of TV in that context.

.1200

The list you talk about is a list in Beauchesne's that has evolved over the years, and you'll find the same word on both sides of the list, in and out. That goes to support the contention that it's not so much the word that is used,

[Translation]

as Mr. Laurin stated earlier, but rather the impact, the tone, the context and the result which is disorder. Whether the word ``hypocrite'' is on the left or right side of the list this has no impact on the chair because each case in my opinion, is unique in terms of its context and intent.

Thus the Speaker plays the role of a judge up to a certain point, according to the intensity of the incident.

[English]

Then there's the issue of comportment, and I remind you of the incident in the House of the touching of the mace. It was reported as the grabbing of the mace in the last parliament, where Mr. Waddell, a member of the New Democratic Party, at adjournment time in a moment of frustration because, I believe, debate had been closured, as the sergeant was leaving the chamber, grabbed the mace to prevent it from leaving the chamber.

There's a case of a member in Britain who grabbed the mace and threw it on the floor in anger. The mace representing the authority of the House, the House was quite indignant about the action of this member and a question of privilege was raised. A formal motion was moved that the member attend the bar and be admonished by the Speaker.

Technically, and historically in terms of referring to precedents in practice in Britain, that was out of order because a member is usually admonished at his or her seat in the House and not at the bar, the bar being reserved for strangers and witnesses who may be admonished, but the member should rise in his or her seat and be admonished by the chair.

However, the House felt so strongly at that time and it demanded the attendance of the member at the bar. While strictly the Speaker might have intervened from the point of order to further protect the immunity of the member by saying no, I shall admonish him in his seat, the House wanted to do it this way, again showing it is the House that's in control of its membership and its discipline and their discipline.

Conduct is one thing. Language is another. I think you have to make a distinction between the two. What is uttered in frustration or in anger in debate might be of a different degree of offence when compared with conduct, whether it be assault or something that totally offends the dignity of the House.

Recently at Westminster, last June, two members were disciplined for selling their questions in Question Period. It was raised by way of a question of privilege in the House and alleged that two members had been selling their opportunity to ask questions in the House in the marketplace.

The privileges committee did inquire and did find the two members guilty of such an offence. In the one case the recommendation was that the member be suspended for 10 days from service of the House, and the other 20 days from the service of the House. The committee report was concurred in and the members suspended accordingly.

Again, that is a recent example of the House controlling its own speakership and its own membership.

If I can transgress into your debate ever so little - for, I think, the Speaker's interest and my own as his chief adviser - the more you give the Speaker the discretion, the more you give the Speaker the responsibility, the more you shift away from the House the disciplining of its own members, and even the opportunity, in some cases, of disciplining its own members.

I'll leave it at that, Mr. Chairman.

The Chairman: Thank you, Mr. Marleau.

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I am in the hands of the committee.

[Translation]

Given what Mr. Laurin and the other member said, we could perhaps begin by looking at the report of the Special Advisory Committee to the Speaker from the last Parliament.

[English]

Mr. McWhinney: Can we ask some questions?

The Chairman: Yes, if members want to ask questions of Mr. Marleau, I am in the hands of the committee.

Do you have a question, then, Mr. McWhinney?

Mr. McWhinney: Yes, thank you.

As usual, I was very impressed with your presentation, Mr. Marleau. You have accurately described the vestigial judicial functions of the House, which I referred to, when the Speaker takes action and the House votes. It is the pre-modern, you might say, judicial function and operation in that members of the House act in effect as a jury of peers of the members of the House.

I put it to you, and I would be interested in your reaction, that save in ways Parliament itself has limited its own discretion by legislation, the powers are inherent and could include, for example, the Speaker's asking a member to apologize. Assuming the House voted on that, it would be within the powers of the House. In other words, the penalties can be determined by the Speaker. If ratified by the House, they would become applied. The Speaker is in a rather strange position, but again, if you remember, this is pre-Montesquieu, and it is carried over in its own right. The Speaker is both an officer of the House and in a certain sense a judge. So there is a certain combination of functions.

But I am right - and this is the only part in which I have difficulties with this Mulroney-era report - that Parliament has limited its disciplinary powers over members by rendering precise circumstances in which they can be expelled. Therefore, the powers of imposing penalties, going beyond parliamentary procedures, it seems to me, have to be examined in light of what Parliament has legislated. Once it has legislated grounds for expulsion - and I don't mean expulsion from the sittings of the House, I mean expulsion from the House proper - it has limited the capacity to create new ways.

Am I right in that interpretation?

Mr. Marleau: I believe the House still has the power to expel a member, if it so chooses.

Mr. McWhinney: From the sittings.

Mr. Marleau: No, from his seat.

Mr. McWhinney: But once it has legislated particular bases, as it has - for example, the distinction between felony and misdemeanour - if you don't expel for the criminal misdemeanour as distinct from the felony, then unless further legislation emerges, there would be no way of doing that, correct?

Mr. Marleau: No. My view on that would be that the House could still act by itself -

Mr. McWhinney: Regardless of the legislation.

Mr. Marleau: - regardless of the legislation it has passed in terms of what I would call ``qualifying criteria to sit''. But it could deal with a member post-factum if something came to light. Regardless of the legislation, I don't think the power of the House to expel has been diminished.

Mr. McWhinney: It has not been pre-empted.

Mr. Marleau: No, it has not been pre-empted. Part of the debate would be to read the two together in terms of what the consequence would be.

Mr. McWhinney: I am glad to have your views on that on record. Thank you very much.

[Translation]

Mr. Laurin: Mr. Clerk, paragraph 11(1)(d) deals with suspended members. It even says that the suspended member may be ``excluded from the precincts of the House''. What exactly are the precincts to the House?

Mr. Marleau: ``Precincts'' is an English expression. It means every area that is made available to a member by the Speaker or by the Board of Internal Economy, for example his office in another building, and not just his desk in the House. If this paragraph were adopted, the suspended member would not have access to the places he can go to as a member of Parliament. It would mean that he would not have access to a committee meeting in a Halifax hotel because that would be considered as being a precinct of the House.

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Mr. Laurin: So it's much more than the foyer of the house. My office is in the Confederation Building, so if I were suspended I would lose my privilege of working there.

Mr. Marleau: That's right. This is actually what happens in Westminster. When a member is suspended from his duty in the House, he loses the right to enter the Westminster precincts. He may not attend committee meetings and if he has an office in the parliamentary precincts, he may not enter.

Mr. Laurin: Does the suspension extend to the riding office?

Mr. Marleau: No. Mr. Arseneault asked the same question. Members' riding offices have never been and are not considered as parliamentary offices, so they are not part of a member's legislative function.

Mr. Laurin: Mr. Chairman, are we only discussing section 11, are can we also ask questions on section 10?

The Chairman: I didn't quite understand.

Mr. Laurin: This paper contains proposed amendments to sections 10, 11 and 18. However, Mr. Marleau spoke mainly about section 11, and I'd like to ask him a question about section 10.

The Chairman: You may ask questions on any section and on any part of the report.

Mr. Laurin: Section 10 deals with the suspension of a member in case of disorder.

In your opinion, how long may the Speaker suspend the sitting of the House under this section if it was passed?

Mr. Marleau: You would first have to determine whether order has been re-established. We're dealing with a suspension, not an adjournment. It would be a problem if a demonstration in the public galleries interrupted the sitting of the House and if the situation had calmed down after 20 or 25 minutes. The Speaker could suspend the sitting during that time. I think it's at the discretion of the Speaker. Since we're dealing with a suspension rather than an adjournment, we can assume that the sitting will resume as soon as order has been established again.

Mr. Laurin: Subsection 10(2) states that

Mr. Marleau: Yes, there is the risk you may have to depend on the judgment of the person sitting in the Speaker's Chair, depending on the circumstances. There should only be an adjournment in cases of extremely serious disorder, like fire, a demonstration which cannot be controlled by security, or a political party which disrupts a sitting. In those kinds of cases, the Speaker may adjourn the House for two days, or until everyone has calmed down. However, these are all hypothetical and extreme scenarios.

Mr. Laurin: My last question concerns subsection (3) of section 18, which reads:

Mr. Marleau: It depends on how one member has accused one member of lying.

Mr. Laurin: If I said: ``Sir, you are lying'', would that be deliberate or not? How can the Speaker know? I might accuse another member of lying, but if he did not lie deliberately, he is not a liar. But if he lied deliberately, he is. How can you know? You have to put yourself in someone else's situation.

.1215

Mr. Marleau: The wording of that subsection makes it very hard for the Speaker to decide what a member's real motives are. It's very difficult for the Speaker to judge if the motives are true or false if he doesn't know the background of the situation.

It also says: ``Nor charge another member with uttering a deliberate falsehood.''

In this case, the Standing Order says that a member may not lie deliberately. It's not up to the Speaker to judge whether that's the case or not. The wording suggests that anyone would be forbidden from accusing a member of deliberately lying to the House.

Mr. Laurin: The Speaker does not have the freedom to judge. If a member uses the word ``liar'' or ``"lying'', the Speaker has to rule that unparliamentary language has been used.

Mr. Marleau: Yes, that's the tradition. Until now, the Speaker has always ruled that a member has used unparliamentary language if he accuses another member of lying, be it deliberately or not.

Mr. Laurin: I'm not trying to trick you into saying something. Suppose Mr. Boudria calls me a crafty fox or a sly fox in the House, and I accuse him of lying because I know it's not what he really thinks. Do I have to withdraw my words because I used the verb ``to lie''?

Mr. Marleau: It depends on the situation. The House might find it very funny that you accused Mr. Boudria of lying after he called you a sly fox. If the sitting is not disrupted, the Speaker will probably not intervene. But if you accused Mr. Boudria of deliberately misleading the House by calling you a sly or a crafty fox, you would be accusing him of lying. In that case, the Chair would probably intervene.

Mr. Laurin: So, even if there is a list of words deemed unparliamentary, using them will not necessarily lead the Speaker to ask for a retraction, because it depends on how the words are used.

Mr. Marleau: I'm frequently asked that question and I usually answer with an anecdote.

On a point of Order, a member of the British Parliament asked the Speaker whether it was alright to say in the House that half of the government benches looked like a gutter crawling with rats. The Speaker immediately replied that it was unparliamentary language. So the member thanked him by saying that the rats were relieved. The House burst into laughter.

The member's reply was accepted by the House. It would have been difficult for the Speaker to intervene and to order him to withdraw his words while everyone else was laughing. Therefore, it all depends on the tone of the words and the way they are spoken, and on the intent of the member. That's the way it's always been until now.

The Chairman: Mr. Montpetit.

Mr. Camille Montpetit (Clerk Assistant, Procedural Services, House of Commons): I'd like to be a little more precise. It might be wise to say a few words about the list of words deemed unparliamentary.

Beauchesne contains a list of expressions which have been deemed unparliamentary, but it all depends on how they are used. It would not make sense if we decided that all the words contained in this list would be deemed unparliamentary today. As you have already said several times, each word has to be taken in its proper context.

.1220

[English]

The Chairman: Perhaps I could ask one question before I go to you, Mr. Boudria, as a follow-up to Mr. Laurin's. Does paragraph 10.2 in the report of the special advisory committee add anything to the powers currently enjoyed by the chair?

Mr. Marleau: Yes, the power to adjourn the House without question put would be.... So far, and it always has been stated, the Speaker can suspend the House for grave disorder, but it would be an extreme circumstance where the Speaker would adjourn the House without question put.

The Chairman: But he has the power.

Mr. Marleau: He would take the power rather than have the power, is what I mean.

The Chairman: That's what I mean.

Mr. Montpetit.

Mr. Montpetit: The chair has taken the power in the past to suspend the sitting. The most recent case we have is the fire alarm bell. If the fire alarm goes, the Speaker will not wait for a member to move a motion to suspend the House because the alarm is on. The Speaker has chosen to suspend the House and reconvene afterwards, though there is nowhere in the rules that gives the Speaker that authority.

Mr. Marleau: I would say that he does it nemine contradicente.

The Chairman: Would there not also be the inherent power that a judge has to adjourn a court for grave disorder in the courtroom? Surely that power is there without adding these words to the standing order.

Mr. Marleau: I have to confess that I don't know what the intent was behind this particular one. Perhaps Mr. Montpetit, who attended some of their meetings, can -

Mr. Montpetit: I was involved in some of the meetings, and this was to seize the occasion to give the Speaker in the rules the specific authority to do so without being contested.

The Chairman: Mr. Boudria.

Mr. Boudria: My view is that that part is superfluous. Secondly, as much as I'm in favour of codifying to a degree some form of increase in penalty, I'm not too crazy about the idea of including what constitutes disrespectful or unparliamentary language, for reasons that Mr. Laurin brought up.

[Translation]

Language is continually evolving, and what may be completely acceptable today might not be in ten years. Over time, an expression might become derogatory, and so on. Things are continually changing, and even if I can't predict the future, change is the only constant.

That's why I think we had better drop the subject. Mr. Laurin clearly explained the circumstances in which a member would have accuse another of lying. It all depends on the tone and whether disorder ensues or not. I think it's better to let the Speaker rule rather than codify it in the Standing Orders.

The same applies to discriminating language. We might include a reference to discriminating language, without codifying it. It is impossible to make a complete list of discriminating words. And as Mr. Laurin said so well, it is impossible to codify the context. For all these reasons, we should leave it alone.

That being said, I think we should, without creating new Standing Order, talk about the maximum kinds of penalties which could be imposed by the House. However, the Speaker would still have the freedom, of course, to impose a less severe sanction than the one called for in the Standing Orders. But the Speaker should be given some guidance so he knows what we expect.

.1225

[English]

The Chairman: We've had a very useful discussion and we're running out of time. I wonder if I could perhaps summarize things and then see if we can move somewhere from here in a more informal way, and come back in a later meeting on this.

It seems to me there's some agreement, and I don't say how far this goes, that additional penalties as proposed in this draft report are not out of line. There's disagreement on how far the penalties should go and so on. But for second and third offences there seems to be some willingness to consider an additional penalty.

Second, I think there's some willingness to codify some of the proposals in this report, but not all, by making changes to the rules. I think there's some willingness to look at the possibility of having a motion moved, after naming, to reinforce the authority of the chair.

Having said that, would it be possible to confer, because I think this is going to take some wider consultation, and then we can perhaps talk either informally or have another go at it in another meeting. But maybe we could come up with a few items that are agreed on at a subsequent meeting and either add or delete a bit from that, rather than start with this document again. This document, I think, is more than most want to chew, and maybe by agreement we could knock out certain things and then come back with a smaller document at a subsequent meeting. That might be acceptable to members.

Could we work along on that basis?

Mr. McWhinney: Could I suggest you add Mr. Boudria's point if one codifies, the distinction between a codification in extenso and a codification of general principles, which I thought was a very thoughtful point to make.

The Chairman: I think it's a very good point. That's why I said I thought all of what is in here would not be acceptable because it's too extensive a codification.

Are members content to leave it on that basis at the moment? Rather than appoint a subcommittee to go into working on this, can we see what happens in the next couple of weeks through informal consultation and then maybe come back? Is that okay?

[Translation]

Do you agree?

[English]

I thank members for their -

[Translation]

Mr. Laurin: I'm sure we'll discuss the matter again.

The Chairman: Surely. Hopefully sooner than later.

The meeting is adjourned.

;