PROC Committee Report

The Standing Committee on Procedure and House Affairs has the honour to present its

1. Pursuant to the order of reference from the House of Commons of Monday, November 15, 2004, the Committee wishes to report as follows:
   
   
2. The Commission of Inquiry into the Sponsorship Program and Advertising Activities (commonly referred to as the “Gomery Inquiry” after its Commissioner, the Hon. Justice John H. Gomery) was appointed by Order in Council pursuant to the Inquiries Act to investigate and report on questions raised, directly or indirectly, by Chapters 3 and 4 of the November 2003 Report of the Auditor General to the House of Commons with regard to the sponsorship program and advertising activities of the Government of Canada.
   
   
3. Questions have arisen as to whether counsel at the Commission may cross-examine witnesses on the basis of prior statements made in testimony before the House of Commons Standing Committee on Public Accounts during its hearings into the Auditor General’s Report in the third session of the 37th Parliament. The Commissioner has asked whether the House of Commons would be prepared to waive parliamentary privilege in order to permit this.
   
   
4. Pursuant to this request, the Standing Committee on Public Accounts held hearings into this matter, at which counsel for various parties appeared and made representations. On November 5, 2004, the Committee tabled its Third Report in the House of Commons. It recommended that the House of Commons reaffirm all of its privileges and immunities and that the proceedings and all evidence, submissions and testimony by all persons participating in the proceedings of the Standing Committee on Public Accounts continue to be protected by all the privileges and immunities of this House. It went on to recommend that the question of any further or other consideration of these privileges as they apply to the Commission of Inquiry, or generally, be referred to the Standing Committee on Procedure and House Affairs, with the following order of reference:
   
   

   The Standing Committee on Procedure and House Affairs consider the question of whether or not and in what circumstances it may be possible for the House of Commons to waive its privileges under Article 9 of the Bill of Rights 1689, including review of:
   
   

   1. the circumstances which led to this reference;
      
      
   2. the views of the Standing Committee on Public Accounts;
      
      
   3. the position in Canada;
      
      
   4. the position in the Commonwealth; and
      
      
   5. such other considerations as it deems appropriate.

5. The Third Report of the Standing Committee on Public Accounts was concurred in by the House of Commons on November 15, 2004. Appreciating the urgency and importance of this matter, the Standing Committee on Procedure and House Affairs met forthwith, and established a subcommittee to consider this order of reference. The subcommittee heard from several expert witnesses: Rob Walsh, the Law Clerk and Parliamentary Counsel of the House of Commons; J.P. Joseph Maingot, Q.C., former Law Clerk and Parliamentary Counsel, and author of Parliamentary Privilege in Canada; and Robert Marleau, former Clerk of the House of Commons, and co-author of House of Commons Procedure and Practice. The Committee wishes to thank the witnesses for appearing at short notice, and for their testimony.
   
   
6. In his appearance, Mr. Walsh reviewed the evidence and advice that he had given to the Standing Committee on Public Accounts, and outlined the basis for parliamentary privilege, and the issues involved. He indicated that the question for the Committee was whether the House should permit limited use of parliamentary testimony outside the House, or whether it should insist on its privileges. Mr. Walsh urged the Committee that if it affirmed privilege without exception, the House must be prepared to defend its privileges in the courts if necessary. He was followed by Mr. Maingot, who traced the history of parliamentary privilege, and of Article 9 of the Bill of Rights, 1689. In Mr. Maingot’s opinion, privilege can only be waived by means of the enactment of a statute, not by means of a resolution of the House of Commons. Mr. Marleau, in his testimony, discussed the 1999 Report of the United Kingdom Joint Committee on Parliamentary Privilege, which maintained that any suggestion that there was an improper motive or that something was untrue or misleading with respect to a parliamentary proceeding should be handled by the House itself as part of its right to regulate its internal affairs. He reviewed some of the considerations and implications involved in this case, and urged the House to do what was the right thing for Parliament.
   
   
7. The primary issue before the Committee is whether the House of Commons should permit the use of testimony from the Standing Committee on Public Accounts in the cross-examination of witnesses before the Gomery Commission. As has often been said, privilege belongs to the House, not to individual Members.
   
   
8. On the face of it, this request may appear to be one that the House of Commons should accede to. All Members of the House are anxious to facilitate the work of the Commission, and to assist it in determining the facts with regard to the sponsorship program and advertising activities of the Government of Canada. The cross-examination of witnesses on the basis of prior inconsistent statements is a relevant and important means of eliciting evidence and establishing credibility.
   
   
9. The members of the Committee, however, are mindful of the fact that parliamentary privilege is part of the Constitution of Canada, and is goes to the very essence of parliamentary government. Current Members of the House of Commons are custodians of privilege for those who have come before and will come after us. Assuming that a waiver of privilege is permissible, it should not be given lightly, or without due consideration of all the circumstances and interests.
   
   
10. Freedom of speech in parliamentary proceedings is viewed by most observers as the most significant aspect of parliamentary privilege in the modern context. Article 9 of the Bill of Rights, 1689 provided:

    That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place outside of Parliament.

    Blackstone, in his Commentaries on the Laws of England, 17th Edition (1830), vol. 1, p. 163, said:

    The whole of the law and custom of Parliament has its origin from this one maxim, ‘that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.’

11. Freedom of speech allows Members of Parliament to speak freely, and without fear. It is essential for the effective working of the House. Witnesses who appear before parliamentary committees are entitled to the same protections as are Members of the House of Commons. A unanimous resolution of the United Kingdom House of Commons on 26 May 1818 stated: “That all Witnesses examined before this House, or any Committee thereof, are entitled to the protection of this House in respect of anything that may be said by them in their evidence.”
    
    
12. This principle is part of Canadian law – by virtue of section 18 of the Constitution Act, 1867, and the Parliament of Canada Act – and has been re-asserted time and again in countries with a parliamentary system based on the Westminster model. In a 1994 case, Prebble v. Television New Zealand Ltd., the Judicial Committee of the Privy Council referred to:

    the basic concept underlying article 9, viz.. the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect. [italics in the original]

13. There are two examples in the Canadian Parliament where the House of Commons purported to waive privilege with respect to proceedings in Parliament. The first, in 1892, concerned criminal chargers involving a former Member of the House of Commons who had been expelled for bribery and influence-peddling. In the second, in 1978, the House unanimously allowed in camera transcripts of committee evidence to be provided to a Royal Commission which sought to know what had been alleged. Permission was sought from each witness, and the transcripts to be reviewed in camera by the Commission. In view of the conclusions that we have reached, it is unnecessary for us to determine whether these cases constitute precedents that should be followed, and whether the procedures adopted in each of these cases should be followed or exemptions from privilege should be granted only pursuant to a statutory route.
    
    
14. Some witnesses who appeared before the Standing Committee on Public Accounts were given written or oral assurances and others could assume that their testimony would be protected by parliamentary privilege. To withdraw such protection after the fact would be unfair to them as individuals. Moreover, as a matter of principle, it would be contrary to the best interests of Parliament and parliamentary rights. Members of Parliament and other persons participating in parliamentary proceedings must be assured that there is complete freedom of speech, so that they are able to be as open and forthright as possible.
    
    
15. This is not to say that Members of Parliament are prepared to treat with impunity allegations that witnesses misled or lied to parliamentary committees. Such allegations are taken extremely seriously, and, if proven, will be punished to the fullest extent possible. Pursuant to section 12 of the Parliament of Canada Act and sections 132 and 136 of the Criminal Code, if a witness testifies under oath, he or she can be charged with perjury for deliberately lying to a parliamentary committee.
    
    
16. In addition, untruthful answers or testimony before a chamber of Parliament or a parliamentary committee constitute a contempt of the House, and can be punished as such, with the various penalties at the disposal of the House, from a reprimand to imprisonment. A Member can raise a question of privilege in the House of Commons, and, if the Speaker were to find a prima facie case, the matter could be referred to a committee for examination. Standing committees also have the right to re-call witnesses to seek explanations for apparent inconsistencies.
    
    
17. Misleading or lying to the House of Commons and its committees undermines the integrity of parliamentary proceedings, but it is primarily the responsibility of the House to pursue and to punish. To permit the use of testimony from a parliamentary proceeding to cross-examine a witness before a commission of inquiry (or a judicial or other body) would be a violation of Article 9 of the Bill of Rights, 1689, and would undermine and challenge the long-established principle of the autonomy and independence of the legislative and judicial branches. It would undercut the confidence that Members and witnesses must have in their right to freedom of speech in Parliament.
    
    
18. The Members of the House of Commons have reviewed the circumstances which led to this order of reference, the views of the Standing Committee on Public Accounts, the position in Canada and the Commonwealth, and other matters. After careful consideration of all of these circumstances, the Committee has come to the conclusion that a waiver of privilege is not appropriate or in the public interest in this case. Accordingly, we are recommending that the House of Commons continue to affirm its privileges, and not allow its proceedings or those of its committees to be used for the purposes of cross-examination by the Gomery Commission. We further recommend that the House of Commons, through the Speaker, and the Board of Internal Economy, take the necessary action to assert and defend these privileges.