EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, April 17, 1996

.1538

[English]

The Chairman: Order.

Mr. Frazer (Saanich - Gulf Islands): Mr. Chairman.

The Chairman: Mr. Frazer, I'll recognize you in one moment. I'm just going to kindly ask the media with cameras to excuse themselves. It's an open meeting, but unfortunately you cannot leave your cameras going. Thank you.

Mr. Frazer.

Mr. Frazer: Mr. Chairman, the matter with which we are to deal is generating a fair amount of interest among Canadians. With that in mind, if you recall, I previously suggested that our consideration should be televised.

Therefore, with your permission, I would like to make a motion that the committee televise its proceedings on its order of reference from the House of Commons dated March 18, 1996, on the matter of the communiqué of the member for Charlesbourg released on October 26, 1995, concerning members of the Canadian Armed Forces, and that, of course, would be subject to the availability of room 253, the Railway Room.

The Chairman: Thank you. There's a motion and it's seconded. On the question, Mr. Boudria.

Mr. Boudria (Glengarry - Prescott - Russell): I just wanted to know if our clerk has any knowledge as to the availability of the room. I don't object per se, but I know that it's used extensively by other committees for various things. I know the foreign affairs committee was using it quite frequently for a number of issues, and the finance committee has been using it a lot lately. I was just interested in knowing if we happen to know anything in terms of its forecast usage for the next weeks.

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The Chairman: She says she doesn't have any knowledge about it.

Mr. Boudria: I don't have a copy of the motion, but if I gather correctly the motion says ``subject to availability''.

Mr. Frazer: That is correct.

Mr. Boudria: I see.

The Chairman: Are there any other comments on the motion? Are you ready for the question?

Motion agreed to

The Chairman: Mr. Ringma.

Mr. Ringma (Nanaimo - Cowichan): I have a question of clarification. This TV bit that we've had in here just now, for which I signed something this morning, was strictly for commercial TV. It was a quick look at the committee. Is that correct? The coverage we're looking for is parliamentary.

The Chairman: It's the standard, closed circuit, parliamentary TV.

Colleagues, there is a proposed agenda, and at your request I stood aside, if you will, the order of business for the day by half an hour in order to accommodate some notices of motion that were proposed yesterday. I believe you have those proposals circulated before you and there are motions attached.

Mr. Boudria, do you want to proceed?

Mr. Boudria: Yes. Mr. Chairman, I did propose a motion yesterday - I believe it was actually at the suggestion of Mr. Bellehumeur - that the instructions or opinions that the chair had given to the committee at a previous meeting be formalized. I'd love to have the exact words from the blues.I understand they're coming shortly.

In any case, I believe that was the intent of what was offered to us at that point byMr. Bellehumeur. Following that I proposed a motion after of course some debate had taken place. The motion would be that the rules of conduct proposed by the chair of the committee at the meeting of March 28 be concurred with. That's the motion I now move formally.

The Chairman: There's a mover for the motion. Is there a seconder? Mrs. Catterall.

Mr. Boudria: I spoke very informally and just briefly with Mr. Bellehumeur, who indicated that if we went with those rules he would perhaps require some further clarification as to whatthe rules meant. Nevertheless, Mr. Chairman, it was at the suggestion, and I believe it wasMr. Bellehumeur's.... I'll research it in a minute, and if it's okay with the chair I'll come back and read it into the record.

The Chairman: Fine.

Mr. Bellehumeur, please, on the motion.

[Translation]

Mr. Bellehumeur (Berthier - Montcalm): Let's recall the facts. I'm confident the Whip is listening closely to me. Events unfolded in two stages. First of all, I called for a resolution to be passed to limit the scope of the order of reference. Mr. Boudria proposed a motion and tabled a notice of motion which is before the committee this morning.

Subsequently, the Chairman made certain comments in his preamble of March 18, 1996, and we disagree with some of what was said. With all due respect, I have to say that this preamblewas somewhat muddled and appeared to contradict some of the comments we have heard, fromMr. Boudria, among others.

As a result, I tabled a notice of motion myself which I would like the committee to consider.I would also like us to vote on the proposed motion.

To settle the problem once and for all, something I hope we can do, I would be prepared to go along with Mr. Boudria's motion, but under certain conditions, namely that the apparently contradictory passages contained in your March 18 preamble be either amended or clarified.

.1545

I wish to move an amendment to Mr. Boudria's motion for the sake of making it clearer, more explicit and more consistent. The Bloc Québécois is, as always, open and willing to cooperate.

Some hon. members: Oh! Oh!

Mr. Bellehumeur: Exactly. You don't understand. We are quite willing to cooperate with you, Mr. Chairman, and with the government and to back Mr. Boudria's motion, provided that some amendments are made to bring it more in line with my motion because, in the final analysis, the two are not so very different. I want very clear parameters to be set so that, if necessary, objections can be raised.

Since you're asking, Mr. Boudria, I would like to amend the portion of your notice of motion which reads as follows:

That the rules of conduct proposed by the Chair of the committee at the meeting of March 28, 1996, be concurred in.

I would like the notice of motion to be amended to read as follows:

That the rules of conduct defining the parameters of the order of reference solely on the basis of questions directly related to the communiqué, as proposed by the Chair of the committee on March 28, 1996, guide the deliberations of the committee.

[English]

The Chairman: As I understand it, Mr. Bellehumeur, you're saying that rather than saying ``be concurred in'', you added following that, ``and that shall guide the deliberations of the committee''. Did I hear the translation correctly? Is that what you...?

[Translation]

Mr. Bellehumeur: That's right, guide.

[English]

The Chairman: Can we get a copy?

[Translation]

Mr. Bellehumeur: That's my first point, Mr. Chairman. The second concerns your March 28 statement sent to us by the House which very clearly identifies six guidelines. I would like us to take a look at these guidelines before adopting Mr. Boudria's motion, with the proposed amendment. Among other things, I find guideline number 3 contradictory.

[English]

The Chairman: Let's just see if your amendment is in order, because I haven't seen it. Your chair would like just a quick opportunity to have a chance to look at the amendment.

Have you shared this amendment with the Reform Party?

You've not seen the amendment.

Mr. Ringma: No.

The Chairman: Colleagues, while we're sorting this out, I just want to confirm that all members received the order of reference from my statement that would form part of this. I just want to make sure that....

The clerk advises me that she has confirmations from your offices.

I'm just trying to do a little fill-in here. Mr. Milliken, did you used to sing in these intervals?

Mr. Milliken (Kingston and the Islands): No, I would read more of the material that the clerk had prepared.

The Chairman: While we're having this consultation, I'm advised that the Speaker, who as you know cancelled his appearance earlier in the week for main estimates, will be available on April 30. If colleagues want to make a note of that for their agendas, there will be a meeting on April 30 on estimates.

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Colleagues, could we have some...?

Mr. Boudria: We're being seized with this at the last minute and -

The Chairman: I realize that, but there are also other colleagues at the table representing another party who are trying to understand -

Mr. Milliken: Could I make a suggestion?

The Chairman: Yes, Mr. Milliken.

Mr. Milliken: We have a witness here today, and I don't think these rules are going to affect this witness in one way or the other, regardless of what we agree on or what we ask this particular witness. Perhaps while negotiations go on with respect to the wording of possible amendments - I see what was presented here was a working copy only anyway, so presumably there is a lot of room for negotiation on the point - we could get on with the witness and come back to this a little later in the meeting. I wonder if that would not be agreeable to members.

The Chairman: It's a good idea, but there is one minor problem. We also have notice of one other matter, which is Mr. Langlois' -

Mr. Milliken: Yes, but we don't have to settle that before we hear this witness.

The Chairman: No, but I would want Mr. Langlois' agreement to put that aside as well before we get to the witness.

Mr. Frazer.

Mr. Frazer: Mr. Chairman, I would agree with Mr. Milliken and even point out that while what's in here may not affect the witness we have with us, what the witness says to us may very well affect what's in here.

Mr. Milliken: That's my point exactly.

The Chairman: I think it makes eminently good sense.

Mr. Langlois.

[Translation]

Mr. Langlois (Bellechasse): I would like to ask the government whip if we could possibly vote on the motion relating to the rules or parameters that will guide the committee's deliberations and on the motion calling for an invitation to be extended to Professor McWhinney to join our little group to enlighten us on the much broader issue of freedom of speech?

Mr. Boudria: Regarding Professor McWhinney, I would just like to say that he will not be available to the committee on a regular basis. He has, however, indicated that he is willing to lend us a hand.

Mr. Langlois: Then, you have no objections to our voting on the motion?

Mr. Boudria: No.

Mr. Langlois: Therefore, in a greater spirit of cooperation, we could probably hear from Ms...

Mr. Boudria: He is not available at all times, but he is prepared to advise us.

An hon. member: To illuminate us.

[English]

The Chairman: On the subject of Dr. McWhinney, for your information, Mr. Langlois, I spoke with Dr. McWhinney directly and he indicated he would be happy to come to the committee as an invited witness. In that capacity, limited as it would be, he is prepared to come to the committee to offer advice as a panel witness. He expressed, however, a modest reservation that, like all members, he has only a little time to devote to this subject, but he is prepared to graciously accept your invitation. It would be slightly different from the motion you proposed, but he is prepared to do so. That's as much information as we have on that at this time.

[Translation]

Mr. Langlois: I see.

Mr. Milliken: Perhaps he could take Mr. Bellehumeur's place when he is ill.

[English]

The Chairman: All right, colleagues, it's agreed that we are postponing the deliberation on this particular matter. We'll postpone motion (b) and the subject of Mr. McWhinney.

Are those disposed of, Mr. Langlois? Is what I've explained to you acceptable on McWhinney?

[Translation]

Mr. Langlois: He will be assisting us as an expert witness on the matter of the communiqué, and only the communiqué, not the order of reference.

The Chairman: I understand.

Mr. Langlois: I believe we'll come back to this later with Mr. Boudria.

[English]

The Chairman: Colleagues, we're at item 3 of the agenda, ``Witnesses'', and on your behalfI would like to welcome Mr. Robert Marleau, the Clerk of the House; and Diane Davidson, general legal counsel for Legal Services, the House of Commons.

I would invite you to make opening statements if you have them.

Mr. Robert Marleau (Clerk of the House of Commons): Mr. Chairman, I have not prepared an opening statement. I understood that I was to attend to answer your questions and that legal counsel had supplied you with a memorandum. I believe she would like to give a quick summary.

The Chairman: Thank you, Mr. Marleau.

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The Chairman: Thank you, Mr. Marleau.

Madame Davidson, please.

Ms Diane Davidson (General Legal Counsel, Legal Services, House of Commons):Mr. Chairman, members of the committee, as requested at your last meeting, I have provided you with a briefing note outlining generally the privileges of the House of Commons and its members, with special emphasis on the contempt powers of the House. It is not my intention today to repeat in detail the contents of my briefing note. I propose instead to refer briefly to the main points raised in my analysis and then perhaps leave time for questions.

My review of the law of privilege and the relevant authorities - Erskine May, Joseph Maingot, Beauchesne, Bourinot, to name but a few - allows me to state unequivocally that the committee is appropriately seized of the question of privilege sent to it by the House. There is no doubt that from a legal point of view the House possesses complete legal authority to act on matters of contempt to its authority occurring within and outside of its walls. In such matters the House has exclusive authority to act and possesses penal powers to punish whomever transgresses its authority. Not even the courts would question the existence or the exercise of such authority. In my analysis I referred to many cases involving the exercise by the House of its authority to punish its own members, cases the courts have refused to review.

[Translation]

In this context, the role of the committee is to conduct an inquiry to determine if sufficient evidence exists to make a finding of contempt. The committee's role is not to determine whether an offence under the Criminal Code has been committed. The committee is not a court of law competent to determine such matters. The Constitution is clear on this point: breaches of the Criminal Code fall within the jurisdiction of criminal courts which are bound by different rules of conduct set out in law.

This being said, the committee's terms of reference confer up it broad, wide-ranging powers. These powers are constitutional in nature and can be characterized as extraordinary. As such, I have focused in particular in my analysis on the way in which these powers are exercised. In reviewing precedents, I observed that as a general rule, committees are very much aware of the extraordinary nature of their powers and therefore exercise them with caution.

Generally speaking, before beginning their deliberations, committees endeavour, as this committee has done today, to establish the special rules that should govern their conduct, particularly when they are called upon to review the actions of an individual and when that individual's reputation could be tarnished in the process.

[English]

About the mandate of the committee, parliamentary law provides that it is contained in the four corners of its terms of reference. From a practical point of view, the legal effect of this is that if the committee exceeds its mandate, the House could always intervene to limit its area of consideration and instruct the committee accordingly.

In my opinion, what the committee has to determine in this case is whether the publication of the communiqué by a member constitutes a contempt of the House. In other words, does it offend its dignity and its authority? In the final analysis, the committee will have to make a finding on the matter referred to it by the House if they reach one of two conclusions: a finding of contempt or no finding of contempt. In either case, it shall have to report the matter to the House. If the committee reaches a finding of contempt, it shall also propose to the House what it considers to be an appropriate remedy or disciplinary action.

I have highlighted some of the measures used in the past to punish contempt. For the more serious offences the House has resorted to expulsion and imprisonment. For less serious offences the sanctions have included reprimand, apology, retraction.

Mr. Chairman, those are my comments.

[Translation]

I will now take questions from the members of the committee and attempt to answer them. Thank you.

[English]

The Chairman: Colleagues, as is our practice, we'll start with Mr. Bellehumeur and we will go around the table, back and forth, enforcing some time guidelines on questioning, as we would normally do with any witness.

Mr. Bellehumeur, please.

.1600

[Translation]

Mr. Bellehumeur: Thank you very much, Ms Davidson, for your briefing note to the committee. It's a starting point. I have many questions, but I will confine myself to the time allotted to me.

Right off, I was struck by your comment that in order for a finding of contempt to be made, it is not necessary for the misconduct to have occurred in the presence of the House or within its walls. Are you saying that comments made outside the House, for example, comments by a member in his riding, could be construed as contempt of Parliament?

Ms Davidson: Absolutely. Instances of contempt of Parliament are not confined to occurrences within the walls of the House. Contempt may occur outside the precincts of Parliament. As you said, contempt can occur in the riding.

Mr. Bellehumeur: You cite May in support of your analysis. I have read this citation andI don't see where he extends the definition to include necessarily the actions taken or words spoken by a member in his riding.

Ms Davidson: He doesn't necessarily mean that, but I can assure you that precedents show very clearly that this is the case.

Mr. Bellehumeur: If there are very clear precedents, I would like to know what they are. Could you provide the committee with this information?

Ms Davidson: Of course. I will be happy to do so.

Mr. Bellehumeur: Something else surprised me on reading your briefing note. I will phrase my comment in the form of a question. If a case referred to the committee is not a penal matter, can the House assign to itself review powers? I am referring to page 4 of your briefing note where you state the following:

While the Canadian Houses of Parliament have not inherited the complete judicial authority of the British High Court of Parliament, it was recognized by the Supreme Court of Canada that the Canadian Houses in the exercise of their penal powers did possess the authority to deal with matters which constituted impediments to their proper functioning.

Conversely, if it is not a penal matter, then the House cannot exercise these powers.

Ms Davidson: They are referred to as penal powers because they involve the power to punish for contempt. This punishment can be in the form of an expulsion, a reprimand, or imprisonment. They are, therefore, penal powers. That is what is meant here.

Mr. Bellehumeur: It is not being used to qualify the actions of a member or to reprimand him.

Ms Davidson: Correct. It is not to qualify the actions, but rather to qualify the nature of the powers that the House exercises when it metes out punishment.

Mr. Bellehumeur: The briefing note also contains a reference to sections 96 to 101 of the Constitution:

...there has never been a similar judicial role for the Canadian Houses of Parliament. Given that context, the Chief Justice of the Supreme Court of Canada cautioned that the boundary between the courts and either House on matters which were not completely internal to the proceedings of the House may still need to be clarified...

It would appear to me that several criteria come into play, whereas the very specific focus of our attention is the communiqué released outside the House.

You're saying that there is a precedent whereby even words spoken or actions taken outside the House can be construed as contempt. This is not a penal matter, as you stated very clearly at the beginning of your presentation, but based on your interpretation of what the Supreme Court of Canada judge said in referring to penal powers, the question of sanctions comes into play. The word ``penal'' does not have the meaning of offence within the jurisdiction of the Criminal Code or common law courts.

We are talking here about proceedings of the House or about words spoken by persons outside its walls. Here again, this is a borderline case. Where are we going to draw the line?

My final question is this: Do you not think there is a danger, if we look at events bearing in mind the freedom of expression recognized in the Canadian Charter... The decision that we are about to make today, one which will nevertheless be very clear - that is the report that we will issue will be extremely clear - will guide future deliberations. Perhaps the Bloc québécois will no longer be around, but you will have to live with these decisions.

.1605

Don't you think there is a danger that this decision might apply to everything that could done or said by a member outside the House about virtually any subject?

If a member who is easily offended raises a question of privilege in the House and accuses one of his colleagues of contempt, and if the Speaker determines that these charges are extremely serious, without indicating which of the two is the most serious, namely the action of the member who is being accused or the charge brought against him in the House, the entire matter will be handled on the basis of the decision that we will have made to muzzle members who take action or make statements of a political nature.

Based on what you have said, this is a borderline case. There aren't really any cases identical to this one. It is borderline and if we make a finding based on this case, we will have set an unusual precedent in so far as freedom of expression is concerned.

Ms Davidson: I will try as best I can to answer your question.

The courts have recognized very clearly that the House has the power to control the actions of its members. In the course of its proceedings, the House has the authority to regulate the conduct of its members. However, numerous precedents exist to show that the House also has the authority to intervene in matters involving the conduct of members, even conduct outside the precincts of Parliament. I don't know whether I've answered your question.

The Supreme Court did issue a cautionary note, however, in the case of persons who are not Members of Parliament or members of this House. The Court stated that under such circumstances, it might be inclined to consider questions relating to the exercise of a privilege if the matter was brought before it.

However, in this particular instance, the matter clearly concerns a member and his conduct.I can tell you that there are a number of precedents which show that the House has the right to take action to control the conduct of its members.

Mr. Bellehumeur: You cite examples of contempt. I checked in Maingot and in various sources and here are the examples that just about everyone gives: ``breach of the acknowledged privileges, misconduct in the presence of the House or of a committee, disobedience of rules or orders of the House or a committee or affront to the authority of the House and any behaviour which has a tendency to undermine the institution of Parliament or its members and to bring either into disrepute''.

In which category of contempt would you put the communiqué released by Mr. Jacob and dated October 25, 1995?

Ms Davidson: I don't believe it falls into the second category. That's obvious. This is not an instance of misconduct in the presence of the House or of a committee.

Mr. Bellehumeur: No, it's not.

Ms Davidson: It's a question of interpretation. It could fall into the fourth category or perhaps...

Mr. Bellehumeur: ``Any behaviour which has a tendency to undermine the institution of Parliament or its members or to bring either into disrepute''. That's the closest category, in your opinion.

Ms Davidson: It's a matter of interpretation. Perhaps the committee members have a different opinion of this.

Mr. Bellehumeur: Mr. Marleau.

Mr. Marleau: I would tend to answer that it is up to the committee to decide which category the communiqué falls into and even, if it wishes, to recommend to the House that it create a new category.

Mr. Bellehumeur: Very well.

Mr. Marleau: If the House decides to create a new category of contempt, it can either accept it or reject it.

Mr. Bellehumeur: I understand. However, I submit that at the present time, this action does not fall neatly into one existing category.

In light of your experience, Mr. Marleau...

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Mr. Marleau: Based on my experience with the issue of contempt and the knowledge I have of other Commonwealth parliaments, that which is perceived as contempt today will not necessarily be viewed in the same light tomorrow. Given the way in which habits and customs evolve, it would be risky to consider existing jurisprudence as absolute.

During the Victorian era, some actions were perceived as serious instances of contempt and today, to raise such matters would be viewed as rather amusing.

Mr. Bellehumeur: According to your interpretation, in which category would you place this action? We have our own interpretation. Personally, how...

Mr. Marleau: You're asking me to make a judgement as far as the communiqué is concerned. Until now, in offering advice to the Chair, I haven't had to...

Mr. Bellehumeur: Yes, but if this was a clear-cut case, the category of contempt would be obvious.

Mr. Marleau: It is clear that some of the categories listed in the briefing note do not apply.

Mr. Bellehumeur: Which ones do not apply?

Mr. Marleau: Misconduct in the presence of the House or of a committee, for example.

Mr. Bellehumeur: I don't believe ``breach of the acknowledged privileges'' applies either.

Mr. Marleau: I couldn't say. In the course of your inquiry, some facts may be brought to light and some testimony could address that issue. There is the possibility that...

Mr. Bellehumeur: ``Disobedience of rules or orders of the House or of a committee'', that doesn't apply either.

Mr. Marleau: I don't think so either, unless the facts...

Mr. Bellehumeur: ``Affront to the authority of the House'', could that possibly be the right category?

Mr. Marleau: It will be up to the committee to decide whether the actions of a member constitute an affront to the dignity of the House and therefore an affront to the House, and as such affect that member's ability to sit as a member. If I can...

Mr. Bellehumeur: Is that how ``affront to the authority to the House'' should be interpreted?

Mr. Marleau: Possibly.

Mr. Bellehumeur: Possibly, but that isn't how it's interpreted.

Mr. Marleau: I for one think it is much to early, given what I know of the facts, to come up with an interpretation that would enable us to categorize the communiqué and the manner in which it was released or, for that matter, to categorize the actions of its author and his reasons for releasing it.

I'm not trying to dodge the question, but I don't have the authority to...

Mr. Bellehumeur: No, but as far as the obvious points are concerned, you answered immediately that these actions fell into one particular category and that clear precedents existed.

Mr. Marleau: I don't have a big problem with the second and third categories.

Mr. Bellehumeur: The second and third categories. That doesn't help us much, particularly when you say that the category ``affront to the authority of the House'' is not necessarily interpreted this way, but that it possibly could be.

As for the fourth category, ``any behaviour which has a tendency to undermine the institution of Parliament or its members and to bring either into disrepute'', I would like someone to give me some examples and to prove to me that there is a logical connection here.

Mr. Marleau: I can give you one example. A well-known member, Réal Caouette, stated outside the House that several members were paying members of the Press Gallery to get their name in the headlines.

Mr. Bellehumeur: That case clearly falls into the fourth category.

Mr. Marleau: When the matter was raised in the House, Mr. Caouette responded: ``It's true,I know of members who are doing it''. Bingo! The fourth category applies in this case.

Mr. Bellehumeur: That's clear.

Mr. Marleau: That's one example.

Mr. Bellehumeur: But it's a clear-cut one.

Mr. Marleau: The House could have come to a different decision. It could have ruled that given the circumstances, the member's comments were not offensive and his actions did not constitute contempt or undermine the dignity of the House and its members.

Mr. Bellehumeur: Have both of you read Mr. Jacob's communiqué?

Ms Davidson: Yes.

Mr. Marleau: Yes.

Mr. Bellehumeur: In your opinion, which portion of the communiqué is the most contemptible or the most likely to discredit or pose an affront to the authority of the House?

Ms Davidson: In my view, that is precisely the question that the committee must weigh.

[English]

The Chairman: A point of order is being raised here.

[Translation]

Mr. Bellehumeur: What was that Mr. Milliken said? ``What a stupid question''?

Mr. Milliken: What a stupid question!

Mr. Bellehumeur: If we start debating the government's interpretation of questions raised by the opposition, we're in for quite a ride. Mr. Chairman, I would ask Mr. Milliken to withdraw his remarks.

[English]

The Chairman: Order.

[Translation]

Mr. Bellehumeur: I ask him to withdraw his remarks and to apologize.

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[English]

The Chairman: We'd have to check the blues to see exactly whether or not we caught that particular comment.

[Translation]

Mr. Bellehumeur: He did say it. He even repeated it, Mr. Chairman, in your presence.

Mr. Langlois: We'll take his word for it; he said it was a stupid question.

Mr. Bellehumeur: Yes, and I see he's still nodding. He is an honest person.

[English]

The Chairman: I guess I didn't hear it, but your chair has bad ears.

Mr. Milliken, do you have something you want to say?

Mr. Milliken: No. I said what I said, and it's true.

The Chairman: Okay.

[Translation]

Mr. Bellehumeur: Mr. Chairman, you're in for a good time, I can assure you. Just wait until we raise some arguments and start commenting on the intelligence of the government's questions.

[English]

The Chairman: I'd ask colleagues to please try to respect each other's questions. What may be folly to one may be intelligence to another.

I also want to draw your attention to the fact that as I was reading Madam Davidson's...in English, you have ``instances'' of contempt, and in French you have exemples of contempt.

I think what you were trying to give were categories or examples - or that's the way I read it. They weren't necessarily definitive categories but examples. In French, it's quite clear. It says exemples. But in English the translator translated exemples to ``instances'', which to me, when I read it, has a different connotation.

I guess it only goes to show the difficulty we have as colleagues to determine what is potentially a category in French, and in English an example, or the other way around.

Mrs. Catterall (Ottawa West): Mr. Chair, I have a point of order. I may not agree withMr. Milliken's expression of his opinion, but at the same time I think it's important that we recognize that these people are here as witnesses. They're not here to do the work of the committee.

I think perhaps what Mr. Milliken reacted to was that we seemed to be stepping over a line, asking the officials in front of us to make the kinds of judgments it's up to the committee to make.I would ask you to try to keep us, on both sides of the table, on the right side of that line.

The Chairman: Yes.

Frankly, Mr. Bellehumeur, I share the view you.... I was pretty generous or lenient with where you were going, but out of respect for these two witnesses, I think they're just sharing or trying to give us information, and our job is to make some of the determinations we're trying to make.

[Translation]

Mr. Bellehumeur: I wasn't blaming the witnesses. I was asking a question. Had they answered: ``Listen, that's your job, I can't do your work for you'', then fine, I would have accepted that. However, when someone tells me that my questions are stupid, that I cannot accept. If the member does not wish to withdraw his remarks, then so be it. I won't withdraw mine either whenI get around to assessing his work.

[English]

The Chairman: It's different. I agree.

Mr. Ringma, you're next on my list.

Mr. Ringma: Thank you, Mr. Chairman. A point of clarification first. Are you intending, as chair, to have time parameters put on -

The Chairman: I'm trying to adhere to some semblance of fairness in allocating time around the table. You'll let me know if I've been fair. I've allocated 13 minutes. Mr. Bellehumeur just went 13 minutes.

Mr. Ringma: That's fine. As long as you're keeping tabs on it, that's the main thing.

The Chairman: I'm known to keep tabs on time. I used to sell it for a living.

Mr. Ringma: My question, or what will come up to be my question, is that I want to examine - and I hope Ms Davidson and Mr. Marleau have the guidelines proposed by the chairman in front of them - the first guideline. It states:

The committee is not a court of law and therefore is not the appropriate forum for determining the scope and interpretation of the criminal law in Canada.

From what Ms Davidson said, I understood that this was perhaps so, but I read in page 4, near the top, second paragraph, that:

As a result, the courts have shown a customary deference when the House exercised its contempt powers and considered it imminently

- or probably ``eminently'' -

reasonable for parliamentary institutions to possess such powers.

.1620

From that comes the question of whether we can substitute.... Well, it would be up to the chairman to substitute, but could we have a statement in there that says that while the committee may not be a court of law, it is indeed the correct body to examine any breach of privilege or contempt of Parliament? If that is so, then I would want to put that in as a substitute there or, at the very least, add it to number 6 at the end, which would then say ``whether there has been a breach of privilege or contempt of Parliament''.

I just want to be quite clear with legal counsel that this committee is indeed correctly and properly constituted and has the authority to fully examine the issue of contempt of Parliament or breach of parliamentary privilege, against the background of criminal law in Canada.

Ms Davidson: To answer your question, I fully agree with what is stated in point 1 of the guideline, where it says that the committee is not a court of law. I think I stated that in my opening remarks.

Mr. Ringma: That's what I understood.

Ms Davidson: They are not there to interpret the criminal law of Canada. However, the committee has the power to determine whether a matter constitutes a breach of privilege or a contempt of the House. That's a special power. It does not have the powers of a court of law. So your suggestion to amend the guideline would be acceptable from a legal point of view.

The Chairman: I accept what you're suggesting, but I'd just like a clarification here. In item 4, where I as the chair had said ``whether or not Mr. Jacob's actions violated the privileges of the House'', that didn't deal with the issue of privilege?

I'm not being argumentative. I'm just trying to understand what may or may not be a reasonably exhaustive list of criteria.

Ms Davidson: Often the expression ``privileges'' embodies or encompasses the contempt power of the House. In that sense, if the intention here was to include and incorporate the contempt powers of the House in the privileges of the House as used in guideline 4, I think it would be acceptable. For greater certainty, you may want to add it. It doesn't take away.

The Chairman: We could add it where you had suggested, Mr. Ringma, so that item 6 would include a breach of privilege or contempt.

Mr. Ringma: That's in item 6, yes.

The Chairman: Okay. We're just thinking out loud here, so we might as well carry on. I'm sorry I'm using up some of your time, Mr. Ringma.

Mr. Ringma: That's okay, I'll pass it to Jack. We're a tag team.

Mr. Frazer: Ms Davidson, I realize we're not getting you to make our decisions for us, but in answer to a question from Mr. Bellehumeur you said you didn't think the situation we're considering would fall under item 2 in your list of instances of contempt. I refer you to the statement that says:

...publication of writings reflecting on the House and its Members has traditionally been considered to be a ``constructive contempt''.

In view of that, I wondered how you could have said this matter definitely doesn't fall under number 2.

Secondly, could you define for me ``constructive contempt''? Exactly what is that?

Ms Davidson: I think I have described it under point 2. It's indirect. It's not something that occurred in the House or a committee. It's something occurring outside. It's a reflection or a speech. Usually it's something that the media would perhaps do, a criticism of members or of the House.It would not necessarily involve a contempt that occurred in a proceeding. A constructive contempt is something occurring outside.

.1625

Mr. Frazer: Okay. What about my first point?

Ms Davidson: As to the publication issue, under point 2 I looked at misconduct in the presence of the House or a committee. I was referring to the fact that what you are dealing with doesn't appear to be a case of misconduct in the presence of the House or a committee. It's a question of interpretation as to whether you consider it constructive contempt or -

Mr. Frazer: But it does refer to the publication of a document?

Ms Davidson: Yes.

Mr. Frazer: That's why I questioned why you were able to so easily say it doesn't fall under item 2. Am I missing something?

Mr. Marleau: Yes, I think so. May I interject? What is meant here by ``publication of writings reflecting on the House'' is a document that would reflect negatively on or offend the dignity of the House by attacking the House.

Mr. Frazer: Isn't that what we're dealing with?

A voice: No.

Mr. Marleau: That would be up to you to decide, I suppose, but as I read the document that was sent out by Mr. Jacob, I don't think I found any criticism of the House.

Mr. Frazer: No, but is it an appropriate document to be issued by a member of Parliament? That's what we're dealing with.

Mr. Marleau: That's a different issue from that of a publication of writing...on the House. It's a document that emanates -

Mr. Frazer: But does that writing not have the possibility to reflect badly on the House, and is that not what we're dealing with?

Mr. Marleau: The nature, content and intent of the document, and the motives behind it, could ultimately, together or severally or separately, reflect negatively on the House. But the statement here is a publication of writing that is targeting the House or one of its committees.

Mr. Frazer: But it doesn't say ``targeting''.

Mr. Marleau: No, but it's traditionally been the publication of writings reflecting on the House and its members. If a member of the House wrote that a particular debate was a sham and put that in his householder, it could be determined after review that that was a publication of writings reflecting negatively on the House.

Mr. Abbott (Kootenay East): Within our time limit, perhaps I can deal with my question.

I made note of your comment, the question being whether it offends the dignity and authority of the House of Commons. This is a combative enough situation as it is, and my comment now is not intended in any way to inflame the situation, but my personal concern is that there has been an attempt on the part of the government to water this thing down as best they possibly can.

When I arrived at this, under ``Notices of Motion'' I noticed items A and C, proposed byMr. Bellehumeur. Item A says:

That the questions asked of witnesses and considered by the chair to be in order deal exclusively with the communiqué.

Item C is much of a reflection of that.

Say at some future point, through some procedure, either the Bloc or the Liberals choose to reintroduce clauses or motions like A and C. Would you agree with me that there are many things in this affair - for example, Mr. Jacob's comments that were carried in the press about the number of people he had spoken to in the armed forces amongst the officers and so on and so forth - that were directly related to the communiqué but were not related in as exclusive a way as items A and C would seem to confine it?

Do you understand what I'm trying to drive at here? If we are indeed to answer the question you have asked about whether it offends the dignity and authority of the House, would you not agree that to specifically confine any of the testimony or the discussion to dealing, as it says here, ``exclusively with the communiqué'', is far too confining an approach to this issue.

.1630

The Chairman: Ms Davidson, we're all waiting to hear what you're going to say now.

Ms Davidson: Again I was going to say that the committee is master of its own proceedings. The committee interprets its terms of reference. In my written submission I have given you some indication of how you could interpret the scope of your mandate. I have stated that it's for this committee to decide. It is not for me to tell you what falls within that, depending on what you want to achieve.

What you have to do is determine if a contempt has occurred. How you will achieve that is really up to the committee.

Mr. Abbott: Okay. But I guess what I'm asking for your opinion about.... We've hit on this about three times so far. I agree completely with all of my colleagues on this committee that we are not asking you to determine the issue. That is not what I'm asking.

What I'm asking is this: if at some point, perhaps following your testimony here now or at some future point at some other hearing, clauses or strictures like this were introduced, would you agree that, by introducing strictures that would state that the chair would be able to be in order to deal exclusively with the communiqué, those strictures would seriously limit the ability to consider all of the items relevant to this issue?

Mr. Marleau: It's a very difficult question for me, particularly, to answer: in terms of the end-result some several meetings down the road, whether the adoption of such, as you say, restrictions might be detrimental to your study. You'd have to look at that in that context.

As an officer of the House, sir, with all due respect - I'm not dodging your question - a long time ago I learned to respect majority rule and not to qualify it when a decision is made. But I am offering the caveat that the test often has to survive in a minority Parliament in terms of the quality of the decision the committee of the House might make. But at this stage I think it would be inappropriate even to attempt to answer that question.

The Chairman: Is that the last intervention? Is that it for now?

Mr. Abbott: That's it.

The Chairman: Mr. Boudria, please.

[Translation]

Mr. Boudria: Mr. Chairman, I would like to get back to the fine briefing note prepared for us by Ms Davidson.

I would like us to refer to page 3 where a distinction is drawn between privileges and contempt. The last paragraph reads as follows:

The House also enjoys a wide latitude in maintaining its authority and dignity through the exercise of its contempt power.

The briefing note goes on to state:

It is by its very nature discretionary and may not be delegated to parliamentary committees.

Could you provide us with some brief explanations, bearing in mind why this matter has been brought before the committee? Are we to understand that a case of contempt can only be dealt with by the House? Or will our report contain a recommendation to the House which will then make the final decision?

Ms Davidson: To answer you question, the job of this committee will indeed be to advise the House, in light of the evidence presented, on whether or not a contempt has occurred. Furthermore, if a finding of contempt is made, the committee will normally have to recommend the punishment which it considers appropriate in this case.

Mr. Boudria: In short, we can make any recommendation as far as contempt is concerned, but the final decision rests with the House. We make a recommendation to the House, but it is the House that ultimately decides. Is that correct?

Ms Davidson: Absolutely. The decision-making authority rests with the House.

.1635

Mr. Boudria: In your briefing note, you refer to Erskine May and the High Court of Parliament. That's very interesting to us, particularly as regards the initial motion tabled in the House.

As we know, this motion was later amended because some of the words it contained could have resulted in criminal charges. The Criminal Code clearly contains a definition of sedition.

My question is this: Should we exclude from our deliberations and our subsequent report to the House matters which fall within the criminal law and leave the final decision in the hands of the House?

Ms Davidson: That is indeed what I have advised you to do. In my opinion, jurisdiction over criminal matters rests with the courts of law which, pursuant to our Constitution, have sole authority in ruling on Criminal Code offences.

Mr. Boudria: Does this mean that if the House had adopted the motion as initially worded, with the word ``sedition'' and everything else, this committee would not even have had the authority to rule on this part of the motion?

Ms Davidson: I don't have the motion in front of me, but the word ``sedition'' can also be found in the dictionary. It could have been interpreted in the usual manner, not according to the meaning given to it in the Criminal Code.

Mr. Boudria: In other words, we could have dealt with a case of sedition only if it had been non-criminal sedition. Is that what you're saying?

Ms Davidson: It's a word...

Mr. Boudria: Based on what you have just told us, the committee would not, in any case, have had the authority to examine a case of sedition, had the word been left in the original motion. It was removed and it didn't change anything because we didn't have the authority in the first place.

The reason why I mention this is because our friends opposite have accused the government of all kinds of things because it had these words removed and the committee was not even given the chance to hear them.

I have no further questions. Thank you, Mr. Chairman.

[English]

The Chairman: Ms Davidson, did you want to make a comment in reply to Mr. Boudria?

Ms Davidson: No.

The Chairman: You'd be a very good criminal attorney.

Mr. Milliken, Mr. Boudria advised me that he was sharing his time. So, if it's okay with you, I'd rather -

An hon. member: Define non-criminal sedition.

Mr. Milliken: I won't go into that.

Ms Davidson, on page 9 of the brief you submitted to us, you state:

The Committee would not have the authority to conclude that sedition in the criminal law sense has occurred without running the risk of having the matter of its jurisdiction questioned by the courts.

Have you any precedents that indicate the courts would look on Parliament as exceeding its jurisdiction if it made a determination that certain matters that had occurred appeared to be violations of the criminal law?

Ms Davidson: I do not have any precedents that I could quote to you today.

Mr. Milliken: Then why did you make this statement?

Ms Davidson: This statement was made very clearly because it is very clear in our Constitution that the courts have jurisdiction. Sections 91 and 92 of the Constitution provide that the administration of the criminal law belongs to the courts. So this is a basic statement of law that I made here.

Mr. Milliken: You say that sections 91 or 92 of the Constitution Act say that?

.1640

Ms Davidson: I'm sorry. The jurisdiction of the courts is something that is provided for in the Constitution. I may have quoted the wrong section.

Mr. Milliken: I see. I would be interested in seeing your authority if you could provide us with that. It's not that I'm suggesting the committee in any way take on the role of the -

Ms Davidson: I'm sorry. It's section 96.

The Chairman: I think Ms Davidson means section 96. You said sections 91 and 92, which have the separation of powers, I think.

Ms Davidson: From section 96 to 104 would be....

Mr. Milliken: Is it fair to say that what you meant also by this statement is that the committee could not convict someone of an offence of sedition? The only offence that it can really convict someone of - that's if ``conviction'' is the word, but it is not - is contempt of Parliament.

Ms Davidson: That is correct.

Mr. Milliken: So the committee has exclusive jurisdiction, at least the House has exclusive jurisdiction, in respect of contempt of Parliament. The courts do not have jurisdiction in respect of that offence.

Ms Davidson: That's correct. The courts would not review the decision of the House in that respect.

Mr. Milliken: So if the House concluded that the conduct complained of was seditious in nature, whether or not the offence of sedition had been made out, it could conclude that this act in itself could constitute contempt of Parliament. Therefore it would be punishable as contempt of Parliament.

Ms Davidson: Yes.

Mr. Milliken: On page 4,

[Translation]

In pursuing his line of questioning, Mr. Bellehumeur referred to the same citations.

[English]

You said that:

While the Canadian Houses of Parliament have not inherited the complete judicial authority of the British High Court of Parliament....

I need not read the whole quotation.

This is a matter perhaps of academic interest, but just for clarification, you say that the Supreme Court of Canada explained that the broad penal powers of the British Parliament were established in great part to curb the despotic control of sovereigns. Was this penal power in relation to monarchs, or what penal powers is it claimed that the British Parliament had that our does not have?

Ms Davidson: What I was explaining here was a bit of historical background. The British Parliament exercised, at one point in its history, control over sovereigns who tried to influence judges in the exercise of their judicial function. One could petition the House to intervene on one's behalf to ask that the House prevent sovereigns from attempting to influence the courts.

Mr. Marleau: I would say that this comment applied more to the House of Lords than to the House of Commons at the time. The House of Lords to this day remains a court.

[Translation]

Mr. Bellehumeur: Now we are hearing some French.

Mr. Milliken: I will continue in French after this. It's easier. Does this question pertain only to the powers of the House of Lords? I don't know what the correct legal term is in French.

[English]

There is of course the notion in the British law that a person must be tried by his peers. The peer can opt to be tried by the members of the House of Lords, which can sit as a court in that respect.I think that right may have been abolished in this century - I'm not sure - but it was one that existed certainly until the 19th century or very close to it.

Is that the reference here, or is there some additional power in the House of Commons that our House lacks that the British House has, or had?

Mr. Marleau: I don't think so. I think it refers to.... The House of Commons in the British Isles has the same power - or we inherited the same power - to commit for offences against its dignity or contempts. But I know of no other judiciary power the British House of Commons holds. In fact, I'm pretty sure it doesn't have any.

.1645

Mr. Milliken: Could you let us have the citation for your Supreme Court of Canada ruling in this case you referred to?

Ms Davidson: The Donahoe case.

Mr. Milliken: Is that what it is?

Ms Davidson: Yes. Page 2.

Mr. Milliken: So it's a very recent one.

The Chairman: Thank you. While you're getting other material, would you also provide members of this committee with a copy of the publication you referred to in footnote 6 at page 3, if you wouldn't mind. I think committee members would appreciate receiving that.

[Translation]

Please proceed, Mr. Langlois.

Mr. Langlois: With your permission, Mr. Chairman, I want to back up a little. If you are unwilling to go along with this, we could debate the matter.

I would like to discuss with Mr. Marleau the very nature of the question of privilege now before us.

As I indicated to committee members, I have a bit of a problem when it comes to understanding exactly which privilege has been breached in this case. Allow me to explain.

In Beauchesne's 6th edition, citation 115 states the following - I will quote the French version, since I'm entitled to use my own language - :

115. On doit saisir la Chambre d'une question de privilège à la toute première occasion.

Let's consider Mr. Jacob's communiqué of October 26, 1995. The House was in session that day, it sat the following day and it sat on referendum day. It continued to sit for four more weeks until the Christmas recess. In March, the Member for Okanagan - Similkameen - Merritt raised a question of privilege. Can you explain to me the connection between the principle stated in citation 115 of Beauchesne and the question of privilege raised by Mr. Hart the following March, nearly four months after the release of the communiqué? Are you aware of any precedents in the Commonwealth that relate to a similar situation?

Mr. Marleau: First of all, it would be difficult for me to cite precedents relating to similar situations in the Commonwealth without consulting my colleagues from other assemblies.

Basically, three conditions must be present in order for a member to raise a question of privilege in the House. The question of privilege is a term which applies to actions taken by persons which undermine the personal privileges of members, or to members themselves who have acted in a manner deemed contemptible by the House. It does not necessarily refer to the privilege described in Ms Davidson's briefing note or to specific privileges such as freedom of speech, freedom of access to buildings or the personal privileges of members. When we speak of privileges or breach of privileges, we are using a generic term which applies to contempts as well as to specific breaches of specific privileges.

Some conditions must be present. Firstly, prior notice must have been given to the Speaker, as stated clearly in the Standing Orders. Secondly, action must be taken in timely fashion. In the 1960s, this was defined as meaning at the earliest opportunity.

Thirdly, in this specific instance, that is when the conduct of a member is at issue - and particularly when the matter has been raised by another member - , a clear, specific charge must have been made. This rarely happens, as the process can be fraught with consequences. Speaker Lemieux ruled quite some time ago, as did Speaker Michener on February 19, 1959, that the charge must be clear and specific.

.1650

It is up to the Speaker to determine, given the circumstances in which the question of privilege has been raised, whether the criteria set out in citation 115 of Beauchesne's 6th edition and in Standing Order 48, which is less specific, have been satisfied and to determine what exactly is meant by ``at the first possible opportunity" or ``at the earliest opportunity''.

I can only repeat what the Speaker said in the House. He was very serious and I believe he spoke in English. I don't recall the French translation, but he stated in English that

[English]

the question of first opportunity was moot.

[Translation]

Mr. Langlois: I will repeat the English version of citation 115 to ensure that both versions are consistent.

[English]

A question of privilege must be brought to the attention of the House at the first possible opportunity.

[Translation]

In your opinion, between October 26, the release date of the communiqué, and the Christmas recess...

[English]

Mr. Frazer: I have a point of order. We've been through this matter a number of times,Mr. Chairman. We're arguing with a decision of the Speaker, which I thought was a final decision we don't argue with.

[Translation]

Mr. Langlois: Mr. Chairman...

[English]

The Chairman: On the point of order that's been raised -

[Translation]

Mr. Langlois: I've barely had time to put my first question and already, someone is raising a point of order!

I want to ask Mr. Marleau, a person who has a great deal of expertise in this area and who hails from Cornwall, the riding of Speaker Lemieux, one of the great Speakers in Canadian history, to give me his interpretation of citation 115.

I haven't mentioned Speaker Parent's ruling even once and I'm not likely to. I get the feeling that the members opposite are looking for ways to stop me from putting my question.

Let me get on with it and let Mr. Marleau answer the question, if he can. The idea of wanting to prevent me from asking my question and of ruling me out of order even before I get started...

[English]

Mr. Frazer: Mr. Chairman, to what end? To what end?

Mrs. Catterall: On the same point of order, I frankly am interested in the questioning that is being pursued by Mr. Langlois. I don't regard it, yet, as a questioning of the Speaker's decision. If I do, I'll raise the point of order myself. But I do think it's important for the committee to look at this broadly, as Mr. Frazer and his colleagues have urged.

Two members of Parliament are in fact involved in this situation. I think it's important for us, as Ms Davidson has said, even perhaps to review the record of the debate and discussion of the motion. It's important for us, if we're to consider it broadly, to consider the whole context that brings it in front of us. I hope you will rule that Mr. Langlois may proceed with his line of questioning until he goes beyond what he should.

Mr. Abbott: On this point, I concur with Mr. Frazer, because this matter really has absolutely nothing to do with the matters brought before this committee. This matter that Mr. Langlois has raised has to do exclusively with the fact that the Speaker chose to refer it to Parliament and that Parliament in turn referred it to committee. It really is a moot point. It has absolutely nothing whatsoever to do with the matters before the committee.

The Chairman: My disposition, colleagues, is to allow the question. I've listened carefully to the point of order that's been raised.

Mr. Langlois, I'm going to allow the question, but I would just caution you to be respectful of the point that was raised by Mr. Frazer. I don't think you were headed towards being disrespectful to the Speaker, but as I understood it there was a question of caution. I'll allow the question, with a caution.

[Translation]

Mr. Langlois: It was my understanding, Mr. Chairman,...

[English]

The Chairman: In true Liberal fashion -

Mr. Marleau: Are you looking at me?

The Chairman: Why not? You're getting paid all the big bucks.

.1655

[Translation]

Mr. Langlois: It was my understanding that we were here to shed some light on the subject of parliamentary law. This is one aspect of parliamentary law that I consider important. It is as important to establish procedural parameters as it is to determine the very substance of the charge being made against someone. As I said the other day, we shouldn't erect the scaffold before establishing the rules of procedure.

My question for Mr. Marleau is as follows: citation 115 of Beauchesne states that a question of privilege must be raised... I will read the English version of the text this time around.

[English]

A question of privilege must be brought to the attention of the House at the first possible opportunity.

[Translation]

Considering that approximately 30 sitting days elapsed between the date on which Mr. Jacob's communiqué was released and the Christmas recess, wasn't there sufficient time during this period to satisfy the earliest opportunity criterion?

[English]

The Chairman: Now I'm going to jump in and, Mr. Langlois, I'm going to say, to try to help here a little bit, that the difficulty I think you're putting the witness in is that he's an officer of the House. You haven't asked me for advice, but you might prefer to reframe your question in a more hypothetical form, because if he were to answer yes, then obviously that would be a challenge to the chair. I know that Mr. Marleau knows this.

Your point is valid in that you're trying to get some information so we'll be able to do a valid assessment - and, Mrs. Catterall, you can help me - but as your chair I'm trying to lay out some parameters.

[Translation]

Mr. Langlois: Mr. Chairman, before the witness is given the opportunity to respond, I would like to make my reasons clear. In a trial setting, questions are important. You have stated that this is not a court, but what kind of forum is this then? Undoubtedly, this is a committee. In any event...

What I would like is for Mr. Marleau to comment on the fact that this problem could have been raised quickly in the days following the committee meeting and that had this happened, we would have been in full compliance with the criteria set out in citation 115 of Beauchesne. Had this been the case, the committee's terms of reference would have been different; we would no longer be dealing solely with the matter of Mr. Jacob's communiqué, but also with the conduct of the member for Okanagan - Similkameen - Merritt who brought a very serious charge against the member for Charlesbourg.

This would have changed the complexion of these hearings and that is what I'm getting at in asking Mr. Marleau this question. Had the question of privilege been raised in the days following October 26, the date on which the House began sitting on a daily basis, would this have been in strict compliance with citation 115?

Mr. Marleau: If the question had been raised in the days or weeks following the release of the communiqué, the three conditions that I listed and the terms of citation 115 would have been satisfied.

When the question was finally raised, the Speaker ruled that this criterion should be set aside. Therefore, the answer to your question is yes. If the matter had been raised quickly, the three criteria that I listed would have been satisfied. However, the Speaker ruled that this criterion could be disregarded.

Mr. Langlois: Ms Davidson, you refer in your briefing note to procedural fairness. Does procedural fairness include or exclude the waiver concept as it exists in British public law?

Ms Davidson: What exactly do you mean?

Mr. Langlois: When a point of law is raised, if it is not raised at the first possible opportunity, the waiver takes away the right to raise this point at a later date. This committee is acting at the very least in a quasi-judicial manner since it has rights to protect and witnesses to hear from. Given the delayed nature of the situation, the committee should simply wrap up its proceedings for the simple reason that too much time has elapsed for it to act on this matter.

.1700

Have you, therefore, excluded the British law concept of a waiver?

Ms Davidson: Did you say that this concept applied in the case of quasi-judicial proceedings?

Mr. Langlois: Yes.

Ms Davidson: Then I would say to you, as I have repeated several times in my briefing note, that this committee is not governed by the rules of operation of a court of law. The committee is not a court of law; the legal concepts that apply to the workings of a court do not automatically apply to the committee. If the committee wishes to adopt such principles, it can do so. I indicated that in the past, committees have complied with certain rules of procedural fairness, that is that they had given prior notice to a witness and advised him of the nature of his testimony prior to his appearance. This type of action corresponds to what I would call procedural fairness.

However, the concept to which you are alluding would not automatically apply to the committee.

Mr. Langlois: Ms Davidson, to exclude the authority of Parliament or of the House...

[English]

The Chairman: This will be your last question, colleague.

[Translation]

Mr. Langlois: I will get back to this matter during the next round of questioning. In your analysis of the authority of the House or of the committee in criminal matters, you referred to sections 96 to 101 of the Canadian Constitution and concluded, rather clearly I might say, that they had no authority over such matters.

Thus, you have subordinated the House of Commons in procedural matters to sections of the Canadian Constitution. My question, therefore, is as follows: is the House of Commons also subordinate to the 1982 Charter which was entrenched in the Constitution Act of 1982?

Ms Davidson: The Charter of Rights and Freedoms and the Constitution Act, 1982, do not apply to the proceedings of the House.

Mr. Langlois: Under any circumstances?

Ms Davidson: The Supreme Court has ruled that the House is not governed by these texts. The House can always decide, of its own initiative, to abide by the principles or spirit of the Charter, but it is not automatically subject to its provisions. That is what the Supreme Court ruled in Donahoe, the case to which Mr. Milliken referred.

Mr. Langlois: And it was your decision to include sections 96 to 101, not something suggested to you by the Supreme Court?

Ms Davidson: Sections 96 to 101...

Mr. Langlois: The Constitution provides for the existence of a judicial power and the House is no longer competent in such matters. This was confirmed by a ruling at which level?

Ms Davidson: By a Supreme Court of Canada ruling.

Mr. Langlois: Thank you.

[English]

The Chairman: Thank you, Mr. Langlois.

Madame Catterall, please.

Mrs. Catterall: I have a couple of questions. I want to go to page 5, first of all. Could I ask that the witness provide us with the document referred to in footnote 6 on page 3?

The Chairman: We already did that when you excused yourself.

Mrs. Catterall: My apologies then.

I want to understand a little more clearly item number 4 on page 5:

Any behaviour which has a tendency to undermine the institution of Parliament or its Members and to bring either into disrepute.

I'll back up from that for a moment to number 3:

Disobedience of rules or orders of the House or of a Committee or affront to the authority of the House;

You seemed to be indicating you felt if there were a possible case of contempt here it would more likely fall under number 4. I'd like to pursue the possibilities under number 3.

What constitutes ``rules or orders of the House'' or ``the authority of the House''?

Ms Davidson: Number 3 I saw more as a decision of the House: a rule, an order or perhaps -

Mrs. Catterall: Can you give me examples instead of reusing the words?

.1705

Ms Davidson: I gave you an example here. When a witness refuses to answer a question or to produce a document, the matter is reported back to the House, and the witness is ordered to produce a document or to testify, this would fall under category 3.

Mrs. Catterall: Would rules on the use of a member's parliamentary office, the equipment and supplies of Parliament, be considered something falling under the rules of the House?

Ms Davidson: No, because the use of the equipment and resources a member has to carry out his parliamentary functions is something regulated by the Board of Internal Economy and the board is created pursuant to the Parliament of Canada Act. The board establishes by-laws regulating the use of funds, goods, and services. This would not fall under category 3. I think category 3 would really be restricted to orders of the House, as opposed to decisions of the board and by-laws of the board.

Mrs. Catterall: What do you mean, then, by ``the authority of the House''? You do say ``or'' in the middle of that section, and ``an affront to the authority of the House''.

Ms Davidson: We could see in that the authority the Speaker exercises in maintaining order in the House. That would be, to my mind, disobedience to the authority of the House being exercised by the Speaker during the proceedings.

Mrs. Catterall: So in your opinion the authority of the House is only the authority of the Speaker.

Ms Davidson: I would read it as that here, yes.

Mrs. Catterall: Mr. Marleau, do you have a...?

Mr. Marleau: Whatever authority the Speaker exercises, he exercises on behalf of the House. So whatever action the Speaker would require, within that definition, I think.... Let's say barring someone from the precincts, the relationship we have with police investigations taking place within the precincts if they entered the premises without the Speaker's permission. We had privilege cases to that effect in the 1970s. Those are affronts to the authority of the House.

Mrs. Catterall: Ms Davidson, you gave us several examples about cases where members had been expelled from the House, and in some cases those followed on a decision about criminal activities. In all cases, were those decisions that had been reached by the courts subsequently used by Parliament in determining that there had been contempt?

Ms Davidson: I would say that in most cases, once a conviction for a criminal offence had occurred the House proceeded to expel the member. In most cases I have listed here that is the case.

Mrs. Catterall: Are there any cases where a member was expelled and it related to an offence of some kind but there had not been a finding by a court?

Ms Davidson: The McGreevy case is probably the one case that comes to mind where a member was charged and the House acted before there was an actual conviction. The House expelled the member before the member was actually convicted of the offence.

Mrs. Catterall: Okay. Now, is there or is there not a link between privilege and contempt? If so, please clarify that link for me.

Ms Davidson: Often when we speak of privilege or the law of privilege we speak of privileges and the powers of contempt as one and the same thing. The power to punish for contempt was listed in my document as falling under the powers and privileges of the House of Commons, as opposed to the individual privileges of members of the House. So the power to punish for contempt would be only one of the powers and privileges of the House. The others include the right to regulate its internal proceedings, the power to institute inquiries and to require the attendance of witnesses, the right to administer oaths, and the right to publish papers concerning defamatory material. Those are all powers of the House. To that you can add the power to punish for contempt.

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Mrs. Catterall: You mentioned only specific cases where expulsion was the result of the House's actions. Can you give us examples of other cases where the House has acted short of expulsion, and for what kind of thing?

Mr. Marleau: The most recent in my memory was in the last Parliament, which I guess would be considered an affront to the authority of the House. An hon. member attempted to prevent the House from adjourning as the mace was leaving, and ran up the aisle and grabbed the mace. The honourable member was then ordered to the bar of the House and admonished by the Speaker, on decision of the House. That would be an affront to the authority of the House short of expulsion. The honourable member was admonished.

Mrs. Catterall: Ms Davidson outlined a few things that she thought were components of what she would consider natural justice; in other words, fairness in the process. It might be helpful for the committee to have that in writing.

Ms Davidson: Okay.

The Chairman: That is a good suggestion.

I'll allow a clarification of Mrs. Catterall's point by Mr. Ringma.

Mr. Ringma: Mrs. Catterall was asking about the authority of the House, and we got an answer that came around about the Speaker. I would hope that the authority of the House would include something as basic and elementary as the passing of legislation.

Mr. Marleau: It's in the Constitution.

Ms Davidson: Yes.

Mr. Ringma: The supreme authority of the House is to pass laws and make legislation.

Mr. Marleau: Legislation and supply.

Mr. Ringma: Yes. Thank you. That's all.

The Chairman: Dr. Pagtakhan, please.

Mr. Pagtakhan (Winnipeg North): Page 4 of the brief indicated that if there is no precedent for any given offence, the House can create a new precedent in a case. Is that correct? Footnote 9 states that if a given subject or case has no precedent we can find in the literature, we can, so to speak, reach a new precedent. Is that correct?

Mr. Marleau: In a case of contempt, yes, but the House cannot create itself a new privilege or give itself a new power. But it can decide that a specific act that has never been committed before -

Mr. Pagtakhan: Constitutes.

Mr. Marleau: - constitutes a contempt.

Mr. Pagtakhan: The second point is on page 12, the nature of evidence under the rules of natural justice. In the context of the order of reference, are you able to help the committee as to the nature of evidence that we can seek to help us in our pursuit of the order of reference? Since notice as to the nature of evidence sought by the committee is so critical a component of natural justice, can you advise us as to what would constitute the nature of evidence that we can seek?

Ms Davidson: The procedural fairness guidelines, which I have stated on page 12, would suggest that the committee should allow the witness to be informed in advance of the nature of the evidence the committee is asking for.

Mr. Pagtakhan: Indicate in advance. Whatever nature we decide it to be is okay?

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Ms Davidson: That is correct, as long as it's related to your mandate.

Mr. Pagtakhan: Yes. On page 3 it talks about the appearance of witnesses. One of the privileges is that a member of Parliament may refuse to be a witness. Further on, on page 10, the exemption has in fact been made that a member of Parliament cannot refuse to appear as a witness before the committee. Am I correct?

Ms Davidson: On page 3 the reference to the privileges of members and the exemption from appearing as a witness are in reference to appearing in judicial proceedings.

Mr. Pagtakhan: Oh, I see. That's not before the committee or the House.

Again, on page 5, in footnote 10:

Words or acts shall not be taken to be an offence against a House by reason only that those words are defamatory or critical of the Parliament, a House, a committee or a member.

What shall be needed to make such words or acts an offence?

Ms Davidson: Are you referring here to the Australian practice?

Mr. Pagtakhan: Yes.

Ms Davidson: This is a piece of legislation that was enacted in 1987. I don't believe there have been any cases interpreting those provisions.

Mr. Pagtakhan: I see what you mean. So in other words, in our instance, since we have no such specific law.... Am I correct in saying that there is no such specific law?

Ms Davidson: That's correct.

Mr. Pagtakhan: Therefore words or acts may be construed as an offence even if they're only defamatory or critical of Parliament.

Ms Davidson: That is correct.

Mr. Marleau: Can I add a comment to that, Mr. Pagtakhan?

Mr. Pagtakhan: Yes, please.

Mr. Marleau: Without throwing your line of questioning off, because I believe it's an important point to your discussion, I know a little bit about the Australian issue. After a series of difficulties in the 1980s the Australians decided to codify privileges and contempts in law.

Once you do that you automatically subject it to review by the courts. Therefore, if they find someone in contempt under their legislation, an individual could have recourse to the court and the court could then find that it was not. I think that I can say without opining too much on my Australian friends that the experience since has not been a happy one in confining issues, particularly on the contempt side, which ought to be properly dealt with by the House and now can be taken before the courts for review.

Mr. Pagtakhan: My last question relates to the guidelines that the chair has placed before the committee and that in fact we are to consider. In item 3 and item 6, would the witnesses be able to help us in elaborating the parameters that will constitute ``matter of the communiqué''?

Mr. Marleau: Are you talking about the guidelines proposed by the chairman, sir?

Mr. Pagtakhan: Yes indeed, Mr. Marleau.

Mr. Marleau: There again I think it's difficult for me, as a witness, to give an opinion on what this specifically means. I think it's probably even premature for the committee to try to define it. Probably the course you will take will in fact define the breadth of interpretation that you may want to give to both items 3 and 6. As Ms Davidson said, it's for the committee to establish those dimensions.

Mr. Pagtakhan: Thank you, Mr. Chairman.

The Chairman: Thank you, Dr. Pagtakhan.

Colleagues, what is your pleasure? I'm watching the hour. Madame Dalphond-Guiral, you're next. Then I have Mr. Bellehumeur, Mr. Ringma and Mr. Loney. That would be the conclusion.

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Mr. Ringma: You can strike me. My question has already been answered.

The Chairman: Okay, so that will be the end. If that's agreeable, that would conclude the hearing, and I'd like to do that by consensus. Do we agree?

Some hon. members: Agreed.

The Chairman: Great.

Madame.

[Translation]

Mrs. Dalphond-Guiral (Laval Centre): My question is very simple. I don't have a legal background and I realize that this is rather unfortunate, but what can you do.

The Chairman: That' all right.

Mrs. Dalphond-Guiral: I'm sure it is.

The committee is holding these proceedings because one of our colleagues raised a question of privilege in the House. In the process, some very serious charges were made. The question as it was initially worded was not allowed. The Speaker ruled that sedition was not within its purview. However, this is what prompted this whole affair.

When one of our colleagues makes such serious accusations, isn't there some way for us to make it known very clearly that we do not condone this type of behaviour? In other words, if a member were to say just about anything, what kind of consequences would that member face?My question is for Ms Davidson and Mr. Marleau.

Mr. Marleau: I think it's important to make a distinction here. By the way, I share your view where this matter is concerned.

Mrs. Dalphond-Guiral: So, we agree then on this point.

Mr. Marleau: A member cannot speak out and make an accusation of this nature, because he would be cited for using unparliamentary language. For example, to claim in a preamble to a question that the Minister or a member is a party to sedition is to use unparliamentary language. The only way for a member to make such a charge, according to our parliamentary tradition, is to make a substantive motion, after first giving notice. Moreover, if a member wishes to criticize the Chair's actions, that member must proceed by way of a substantive motion, not raise a point of order.

When a substantive motion containing this specific accusation is moved, it may appear in the Order Paper, under the heading Private Members' Business, or, if it is a matter of privilege, the member may opt to raise a question of privilege which the Speaker can then allow or reject. That is the member's choice.

Therefore, the danger you are trying to pinpoint is that members could rise in the House and throw out accusations against one another in a very undignified manner, when in fact, such charges must be made through a substantive motion which may be brought to the House's attention, either by way of a motion in the Order Paper, or by way of a question of privilege. If the Speaker deems that the matter must be brought to the House's attention, the question will then take precedence over all other House business.

Mrs. Dalphond-Guiral: If this committee, which is going to do very fine work, found that a case for contempt cannot be made, what recourse would then be available? Could the committee make recommendations to the House? Could it do something or would it simply say: ``Listen, there was no contempt, it wasn't any more serious then that; let's go back to the House and, next time, we'll await another substantive motion''. Substance is very much in vogue these days.

Mr. Marleau: Once the committee has reached some conclusions, and if it makes a finding similar to what you have just described, it can make a recommendation which it deems relevant under the circumstances. For example, the committee may find that very valid reasons existed, that these led to some confusion and that the whole thing was nothing more than a big misunderstanding. The committee could even extend its recommendations to include the motives of the members who raised the question.

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Earlier, I said that the process was fraught with consequences and I want to explain what I meant by that. In the past, when a member made an accusation against another member, it was a matter of convention that he put his seat in the House on the line. The last resignation that occurred under such circumstances was in 1923. Over the years, other similar accusations have been made, but no resignations occurred when the Chair deemed the charges to be unfounded.

[English]

Mrs. Dalphond-Guiral: Thank you.

The Chairman: I think Mr. Bellehumeur is in the hall, but we'll go to Mr. Loney.

[Translation]

Mr. Langlois: Mr. Marleau...

[English]

The Chairman: I'm just trying to cut this off at some point. If it's just a short question, that's all right.

[Translation]

Mr. Langlois: ...I believe it was in 1964. I'm referring to the Gabias-Hamel affair in the Quebec National Assembly. Mr. Gabias, the member for Trois-Rivières, had made an accusation against the member for Saint-Maurice, Mr. René Hamel. The Privileges and Elections Committee concluded that the charge was unfounded and recommended in its report that Mr. Gabias be expelled from the Assembly. A substantive motion was subsequently moved and Mr. Gabias was expelled for a period of three years.

Points of order were subsequently raised, with members arguing that the motion was valid only for the duration of one session.

Do you agree that the same thing could happen here, that the accuser could find himself in a similar situation and have to bear the consequences of his actions, namely the substantive motion made by him? Once we have concluded our deliberations and if we make no negative recommendation involving the member for Charlesbourg, could we possibly recommend that appropriate sanctions be imposed on the member for Okanagan - Similkameen - Merritt?

Mr. Marleau: The scenario you're describing is possible. There is no limit as to what the House could ultimately decide further to the Committee's recommendation. Would a recommendation of this nature be seen by the House as a case of the committee overstepping the parameters set for this review? That's another story. However, What you have just described is possible.

Mr. Langlois: Thank you.

Mr. Milliken: Regarding the 1923 case which you referred to, following the committee's finding, did the member resign at the request of the House or on his own initiative?

Mr. Marleau: If my memory serves me correctly, the member decided on his own to resign.He ran again in the next election and was defeated.

[English]

The Chairman: Mr. Loney, please.

Mr. Loney (Edmonton North): Thank you, Mr. Chairman.

With reference to page 9, do the comments at the end of this page mean that this committee cannot review the sedition issue without the risk of an expensive and protracted court battle?

Ms Davidson: I would say that this committee would not be able to review the sedition issue in the criminal sense, as outlined in the Criminal Code, and substitute itself for the judicial authority in doing so.

Mr. Loney: Thank you.

The Chairman: Colleagues, we have a motion.

Mrs. Catterall: I have a quick question.

The Chairman: Okay.

Mrs. Catterall: Following on that, you said the committee could not review sedition in the criminal sense, but in response to an earlier question I think you said that in fact there had been a finding of contempt and an expulsion based on a charge that had been laid but not decided by the courts.

Ms Davidson: Perhaps this is something you read in my paper. I referred to an Australian case where a member was expelled for having made seditious comments outside Parliament. Yes, their House punished this member for contempt and later expelled him.

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Mrs. Catterall: So their House therefore did deal with the issue of sedition. Is that the case?

Ms Davidson: The motion was framed with the words ``seditious comments''. I did not review the.... This was a very old case in Australia. You have to understand that since then the Australian House of Representatives has abandoned its power to expel members.

Mrs. Catterall: But nonetheless it did deal with the issue of seditious comments in the context of the finding of contempt?

Ms Davidson: Yes, but not in the criminal sense.

Mrs. Catterall: Not in the criminal sense.

I have one last question. You did suggest in your paper that this committee might want to review the proceedings of the House - the motions that were presented and how they were dealt with in the House. In what way would that assist us in the matter before us, in your view?

Ms Davidson: What I intended to say was that in its own determination of the scope of its mandate, the committee could consider reviewing the votes in the House and the discussions that took place in the House to determine the scope of its mandate. I felt it could be helpful.

Mrs. Catterall: Thank you.

The Chairman: Colleagues, we're running into a problem with time. We're about to adjourn, and the difficulty I have is that I do not have an English translation, nor do I have a whip because he was negotiating with our colleagues. So could we suspend...? No, we can't, because everybody else has other time commitment problems. I'm in your hands.

Mr. Milliken: Can we not do it tomorrow at 11 a.m., at our normal meeting time?

The Chairman: I would be happy to do so at 11 a.m. tomorrow. We're meeting anyway.

Is it estimates tomorrow?

Mr. Milliken: Are we?

The Chairman: Yes, it's with the Chief Electoral Officer, and we'll just have to advise -

Mr. Milliken: If there's an agreement, with any luck it'll go through very quickly.

The Chairman: Yes, if there's an agreement. But in fairness to the third party, they've heard it but haven't had an opportunity to see it.

Mr. Ringma: We haven't seen it.

The Chairman: I haven't seen it. I have only the French in front of me and I do not have an English translation, so I have not circulated it yet.

Mr. Milliken: Would it be helpful to make it 10:30 a.m., Mr. Chairman?

The Chairman: Would 10:30 a.m. be agreeable? Can we meet at that time, colleagues? Okay.

I have a very quick conclusion here for these witnesses, because this would be our last opportunity at this point with these witnesses. Is that correct? We've agreed on that.

Mrs. Davidson, just for a clarification, at page 5 and under the heading of ``Misconduct in the presence of the House'', you have a reference to the publication of writings. My colleague Mr. Frazer touched on this earlier. In your view, what are the limits on the use of House of Commons stationary under that heading, for example? I'm trying to get some....

Mr. Marleau.

Mr. Marleau: I can't remember exactly when, but there was a case fairly recently in which an individual who was not a member of Parliament used a member of Parliament's letterhead. Parliamentary secretary letterhead was made available to the House of Commons and it was distributed in the United States and purported to carry the position of the Canadian government, and the issue was raised on the floor of the House. Any misuse in that sense by an outsider misrepresenting himself or herself as a member of Parliament would fall into that kind of....

Another individual recently advertised his constituency office in an ethnic newspaper - I forget which language it was in but I think it was Greek - when he was was no longer a member of Parliament. By my recollection, it turns out that the paper just kept running the ad after the election, but that could constitute that kind of publication.

The Chairman: Okay, colleagues, I guess we're adjourned until tomorrow at 10:30 a.m.

Mr. Boudria, we don't have the English so we'll have to wait until tomorrow morning. Is that all right, or is there a problem?

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Mr. Boudria: May I say something briefly? Mr. Bellehumeur and I worked on the draft of a motion, which I'll circulate to my own colleagues as soon as it is finished.

The Chairman: Could you also make the third party members receive that?

Mr. Boudria: The clerk will do that the minute she gets the translated version, and then tomorrow at 10:30 hopefully....

The Chairman: Okay. We're adjourned.

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