PRHA Committee Meeting

STANDING COMMITTEE ON PROCEDURE AND HOUSE AFFAIRS

COMITÉ PERMANENT DE LA PROCÉDURE ET DES AFFAIRES DE LA CHAMBRE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 10, 1999

• 1543

[English]

The Chair (Mr. Peter Adams (Peterborough, Lib.)): Colleagues, I have a message from André Harvey, who's the member for the PC Party, that he is unable to be with us today.

An hon. member: Is he door-knocking?

The Chair: I don't know what he's doing.

The order of the day is the orders of reference from the House of Commons dated Wednesday, February 17, 1999 and Thursday, February 18, 1999 in relation to the matter of the molestation of Mr. Pankiw (Saskatoon—Humboldt) and in relation to picket lines established to impede access to the precincts of Parliament.

We have with us today, once again, Mr. Joseph Maingot.

Mr. Maingot, we greatly appreciate your coming back. We know it's very short notice. It's very good and patient of you to be with us again.

Mr. Maingot, before we begin, I'm going to go to Stéphane Bergeron.

[Translation]

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Mr. Chairman, I would like to clarify a small point before we begin to hear Mr. Maingot. Please excuse me, Mr. Maingot. I would like to make this small clarification, because I am missing something with respect to the committee's previous work. I have tried to clarify the mystery with our diligent and very competent clerk, but, unfortunately, it is still a complete mystery to me. I would require some clarification from you, Mr. Chairman.

Without wanting to break the secrecy concerning the House leaders' meeting, you know as well as I do that, surprisingly, the issue of this committee's 22nd report was discussed yesterday. It was presented, and we were asked to approve the adoption of the 22nd report. But the last reference that I have to this report in our deliberations, Mr. Chairman, is the resolution that was adopted by this same committee on October 8, 1998, which stated:

That the Committee review the changes proposed by the Senate Committee on Rules to the 22nd Report on the Rules Governing Joint Committees so as to determine whether there are any changes that are acceptable to the Committee.

• 1545

It would appear, Mr. Chairman, unless I have been asleep at the switch, that we did not review the proposals for change made by the Senate to our 22nd Report. Consequently, I'm astonished that we are being asked to dispose of this report, even though the committee has not yet followed through on the resolution that it adopted on October 8, 1998.

I wonder if you could clarify this, Mr. Chairman, because I am presently totally in the dark. This matter seems to be unclear and vague.

[English]

[Member hums theme from The Twilight Zone]

Some hon. members: Oh, oh!

The Chair: Stéphane, thank you very much for that.

I heard the reference to this report again yesterday, and since then I've tried to get myself up to speed on it. I haven't quite done that yet. I suspect, Stéphane, that this is a case of sloppiness on my part.

[Translation]

Mr. Stéphane Bergeron: No, that's impossible.

[English]

The Chair: Well, I only suspect, Stéphane. It is very unlikely; you're right.

Mr. Stéphane Bergeron: We don't.

The Chair: But Stéphane, as Joe Maingot is here, the way I had thought we'd left it was that there were items of disagreement between us and the Senate. I was asked to speak to Senator Maheu, who is the chair of the Senate committee, and I did that on a number of occasions. I spoke to her.

At a steering committee meeting, it is my recollection—and this is where I may have been sloppy—that we thought there wasn't great interest in the committee at large in reopening the whole thing, though I know you personally were very interested. These items that were left outstanding between us, the Senate and the House of Commons, were quite difficult, and at the steering committee, the thought was they'd be left to the House leaders.

At that point, Stéphane, to be honest with you, I left it. I didn't follow through as strongly as I should have.

Go ahead.

[Translation]

Mr. Stéphane Bergeron: Mr. Chairman, according to the information that I have been able to glean, I think that you are not entirely incorrect. However, I would respect fully say, even though I don't want to get into a long debate because Mr. Maingot is here, that the meeting of the Sub-committee on Agenda and Procedure took place on October 6, two days before the committee sitting. This is when we would have discussed these things that you have just raised.

However, the matter, quite properly, was brought before the full committee, and, at the end of the discussion, it was agreed that the committee, as I said a while ago, review the changes proposed by the Senate committee on rules to the 22nd Report on the Rules Governing Joint Committees, in order to determine if there were any changes that were acceptable to the committee.

Mr. Chairman, the idea was not to try to reach compromise on points that were absolutely irreconcilable, but rather to merely see if there were any aspects, among the Senate's proposals, that might eventually bring us to make some concessions. We never did this, therefore, I was surprised when the subject was raised on Tuesday.

[English]

The Chair: Again, I suspect you're absolutely right. If it's okay with you, I'll take it under advisement. I think you're right; the committee should look at it again. As you know, we're very busy at the moment. The Senate has now, as you know, tabled a report on this, and perhaps it is an appropriate time to reopen it.

I know, I repeat, you were particularly keen to try to resolve these differences, and I'm sure once we've reopened it, the committee will become as enthusiastic as you. So if that's okay, we'll leave it. I undertake that at some future meeting, we'll raise the matter again.

[Translation]

Mr. Stéphane Bergeron: Therefore we can expect that the question will not come before the House leaders, at least not for the moment.

[English]

The Chair: If that is your wish—and I'm sure colleagues would support it—we will consider it in the committee before it goes to the House leaders. Is that okay? I'll agree with that.

[Translation]

Mr. Stéphane Bergeron: Thank you, Mr. Chairman.

[English]

The Chair: Mr. Maingot, I apologize for that. As you know, this time we're dealing with this question of the picketing and these two referrals, and we'd be grateful for anything you have to say in the way of a preliminary statement.

Mr. J.P. Joseph Maingot (Former Law Clerk and Parliamentary Counsel, House of Commons; Author, Parliamentary Privilege in Canada): Mr. Chairman, ladies and gentlemen, I had occasion to read the February 17 and 18 debates dealing with this interesting matter, and I thought I'd just break it down into what are really the issues, taking first into account the general concept you have to consider. In other words, is this an improper means to obstruct a member in his parliamentary work? Does something such as that constitute contempt? In other words, is it an improper means?

• 1550

The first issue is the statement of Mr. Pankiw. In his statement, he says that physical violence and intimidation were used to stop him from gaining access to the House. That seems pretty clear and straightforward, but you'll hear that from him.

There are other allegations that another member of Parliament was told he could not and would not be able to enter his office. Another member of the House of Commons said that.

Then there was another allegation that a member and his staff were not allowed to enter the building. The issue is, does staff constitute, for the purpose of privilege, people to be protected? You have to consider what is essential to the functioning of Parliament. The members certainly are. Historically it's members and officers of the House. So you'd have to consider whether you want to widen that. Up to now, both in the U.K. and here, the regular staff of a member has not been considered essential for the purpose of privilege. This is something you're going to have to consider.

Also, what constitutes the precincts? There are definitions in traditional literature, but generally speaking, the precincts are usually those buildings which accommodate the House and the members who are involved in the proceedings of Parliament.

The other issue you'll have to consider, because it was raised by Mr. Reynolds, is what was the role of the president of the Public Service Alliance of Canada? He raised that, so it's something you're going to no doubt consider. The Speaker, in his ruling on the 18th, probably had that in mind also.

So the principal matter is really whether everything you're going to hear—and of course you'll have to hear it before this committee—in your view constitutes an improper interference.

I'm trying to think of a recent example that's happened in the House.

In 1980 members complained that they were being obstructed in their work because those members of the public service who do the interpreting here were on a legal strike and therefore were not always available for translating. The Speaker said in that case it wasn't a proper question of privilege. It was interfering with their work, just as a newspaper editorial may interfere in your work, and just as literature you might get telling you that you're not doing a great job may interfere in your work. But in this case the interference was not improper, because it was legal. They were on legal strike. That was the position of the Speaker at that particular time.

Similarly, in this case here, the members of the Public Service Alliance of Canada who were doing the picketing... I don't know whether they were on legal strike or not. That's something you'll have to consider, and whether it makes a difference.

As you know, there is always movement outside the precincts of Parliament and on Parliament Hill itself. But the Speaker also in the past has said that with whatever happens outside the House, for purposes of contempt, you have to be careful, because the precincts of Parliament are where members are protected in the sense that it's the jurisdiction of the House that covers the precincts, but not outside the building itself on Parliament Hill. For that matter, the staff of the House doesn't maintain the buildings, including this building here and other buildings that house members. It's members of the Government of Canada who maintain it.

These are some of the issues you have to consider, which I put before you. You'll find out more about them when you hear the people coming before you, giving you their evidence as to what happened. You have to decide whether that constitutes, in your view, improper interference.

The Chair: Mr. Maingot, we appreciate that. Thank you very much again. We've all read your book. Particularly I read the part on precincts, and I'm glad to see you remember what's in it.

Stéphane Bergeron, Gurmant Grewal, Marlene Catterall, and Joe Fontana.

• 1555

[Translation]

Mr. Bergeron.

Mr. Stéphane Bergeron: Thank you very much, Mr. Maingot, for being with us once again today. It seems that your advice is always very valuable, since we invite you, time and again, to appear before our committee.

I am always astonished, that since the beginning of this matter, all those persons who have appeared before us and even committee members, in the discussions, are trying to distinguish the jurisdiction of the various security forces over different aspects of Parliament hill: the buildings themselves, the grounds of the parliamentary precinct north of Wellington Street and the buildings that are on the south side of Wellington Street. Moreover, I put a similar question to Ms. Davidson this week, and her quite interesting answer seemed to confirm my first impressions. Once again, you have raised the matter of the distinction between the jurisdictions of the various security forces for different aspects of the Hill.

My question is very simple: is this of any relevance when the issue is to determine whether or not the privileges of the House were violated? In other words, if, according to the principle of privilege, a member cannot be stopped from entering the House to perform his duties, does it matter at all, in this case, whether the impediment took place on the steps of the Wellington Building, on the property adjacent to the Centre Block, or at the door of the Centre Block?

Mr. Joseph Maingot: The legislation governing parliamentary privilege states that a member cannot be impeded from doing his work, regardless of where the work is being done. That could constitute contempt. If a member who has to get to the House to perform his duties and vote is impeded from getting on an aircraft in Toronto or Montreal, in my opinion, this would constitute contempt. Whether a member is stopped from entering the Parliament buildings or from getting into an aircraft, there is no difference.

For there to be contempt, the impediment must have a link with the proceedings of Parliament. The minutes of your meetings of February 17 and 18 show that most of the members believed that the people knew that the person was a member. We could suppose that someone did not know that he was a member, but I would like to read you a very old document from the XVIIth century which is fascinating,

[English]

Sir Edward Coke's Institutes:

Every man is obliged at his peril to take notice who are members of either house returned of record.

[Translation]

In this case, there may be a difference because the member wanted to enter Parliament and get to the House of Commons in order to perform his parliamentary duties. In my opinion, stopping him would constitute an untimely obstruction. This would not be the same if we stopped a member who owed us money. However, stopping him from entering the House of Commons to carry out his parliamentary duties constitutes contempt. This appears in all of the authorities that I have read.

Mr. Stéphane Bergeron: Therefore, wherever the incident takes place, it constitutes contempt of the House. It is not important whether we know which security force is responsible for the place where the event occurs. It is not important to know whether it is under the authority of the Speaker of the House and of the Security Services, under the RCMP or the Ottawa police, because the incident occurred in front of the Wellington Building. Basically, that is not important. When someone gets between a member and his place of work and prevents him from getting there, this constitutes contempt of the House.

• 1600

Mr. Joseph Maingot: We should perhaps make a distinction here. When a member is here, in the House of Commons, or in his parliamentary office, we can say that he is there to carry out his parliamentary duties. It is a little different when he is in his riding office.

Mr. Stéphane Bergeron: That's correct.

Mr. Joseph Maingot: Regardless of where he is, that is part of the parliamentary precinct, which includes the places where members are called upon to do their parliamentary work.

Mr. Stéphane Bergeron: The chairman rightly pointed out that there are two fundamental rights at issue in this case: the right of workers to demonstrate freely when they disagree with their employer, and the right of parliamentarians to conduct their business and get to their work. These are two fundamental rights recognized under the Constitution, as Ms. Davidson pointed out.

Since there is an aspect that concerns labour legislation here, in your opinion, does the fact that the event that we are discussing involve three entities have an impact? These three parties are the union, the employer, the Government of Canada, and, finally, a third party which is the House of Commons. This third party is involved in the conflict to the extent that the demonstration did not take place in front of the offices of the Department of Citizenship and Immigration or the Department of Foreign Affairs, but before the buildings of a third party, which is the House of Commons. From the point of view of labour law, can the demonstration be deemed as appropriate and legal under such circumstances? For example, can the right of the picketers to demonstrate be set against parliamentary privilege?

Mr. Joseph Maingot: My brief answer is yes. We must consider the fact that there are also other laws besides the ones that concern the Canadian Parliament and that workers have rights to picket all kinds of buildings. The sidewalk of Wellington Street has nothing to do with the Parliament area. Since they have that right, they do their picketing wherever they want, including in front of the main Parliament building, right here.

I am aware of the fact that some members do not want to cross a picket line. Further, Parliament has always declared that freedom of speech must be respected as well as the Canadian law that grants rights to picketers. It also depends on the way the picketing is done. You know that employers often go to court to object to picketing in front of their companies. This happened perhaps ten years ago at Queen's Park in Toronto. Some members had been blocked from entering a building; I do not remember whether it was a provincial legislature building or a provincial government building. They went to court and the judge ruled in their favour and agreed that parliamentary privilege must guarantee any member the right to go into the building to do his parliamentary work. So he put out an injunction to stop the picketing.

Thus, it is certain that parliamentary privilege

[English]

doesn't ride roughshod over

[Translation]

all other laws. We must also consider Canadian law. Parliamentary privilege protects members while doing their parliamentary work and not otherwise. It is a matter of striking the right balance in the circumstances.

• 1605

[English]

The Chair: Gurmant Grewal, then Marlene Catterall, Joe Fontana, and John Harvard.

Mr. Gurmant Grewal (Surrey Central, Ref.): Thank you, Mr. Chairman.

To follow up on Stéphane's question, I have three questions, actually. When an assault occurs on a member of Parliament within the parliamentary precincts, does it constitute contempt of Parliament?

Mr. Joseph Maingot: If the House is sitting, yes, if it's done within the precincts, for whatever reason the person is assaulted—

Mr. Gurmant Grewal: If the House is sitting, but if when it happened the House was not sitting, would it still be contempt of Parliament?

Mr. Joseph Maingot: Well, when the House is sitting, it certainly is. When it's not sitting... I'm trying to think of what I said earlier.

The Chair: We're talking about the morning of caucus.

Mr. Joseph Maingot: Yes.

The Chair: This particular morning, is the House sitting?

Mr. Joseph Maingot: Yes, the House is sitting today.

The Chair: No, no—

Mr. Joseph Maingot: It's not sitting, but it's sitting that day.

The Chair: Okay, sorry, that's right.

Mr. Gurmant Grewal: What is the effect on these questions of privilege that we're discussing here if a legal case is filed or a legal proceeding is going on? Would it have any effect on our discussion here today, on the outcome of this meeting?

Mr. Joseph Maingot: I'm sorry, but I don't quite follow you. What legal proceedings?

Mr. Gurmant Grewal: In case charges are laid and the discussion goes to the court.

Mr. Joseph Maingot: Oh, about what's happened—

Mr. Gurmant Grewal: Yes, then would we have to stop what we are discussing here?

Mr. Joseph Maingot: No, you don't have to stop, but as a general rule, you don't discuss both at the same time. Usually you wait until what happens in court—

Mr. Gurmant Grewal: We will have to suspend then?

Mr. Joseph Maingot: You don't have to, but it's a question of deference. You defer to the court usually. It's a question of you deciding that, but usually you defer. I'm trying to remember what I wrote.

Mr. Joe Fontana (London North Centre, Lib.): We should have a copy of your book.

The Chair: You're saying in theory we could continue, if you were weighing the one against the other. But in reality, out of deference for the system, we likely would not.

Mr. Joseph Maingot: Yes. Actually, you didn't in the case of Bryce Mackasey, that interesting case back in the 1980s. I think it was in the early 1980s. I wasn't here at the time. He raised a question of privilege about what was said in the Montreal Gazette concerning him and having some improper connection. As a result of that, in the middle of that there were criminal proceedings against Mackasey, I seem to recall, and while that was taking place, you stopped.

The Chair: Okay.

I'm sorry. I was trying to clarify your point, if that's okay.

Mr. Gurmant Grewal: That's okay.

The Chair: I apologize for that.

Mr. Gurmant Grewal: Thank you.

On another point, from the previous discussion, do I understand rightly that members of Parliament have the right to access the parliamentary building? Do they have the right to access?

Mr. Joseph Maingot: Yes, well, not only members, but people who are coming here to take part in the proceedings as witnesses have the right to access, and if they're obstructed, they could be... Certainly members have the right. They have a duty. The standing order says they're supposed to attend.

Mr. Gurmant Grewal: Right, but I heard you say that in the U.K., in the example you quoted, the staff members are not considered essential, so they don't have the equal right of access to the parliamentary building as the members of Parliament have. Is that true here in Canada as well?

Mr. Joseph Maingot: I would say so. The only thing I mention in my book has to do with officers of the House—members, officers, and witnesses. Yes, it's the position of the U.K. also. The whole issue is that whatever is necessary for the House to perform its function is part of privilege. For that purpose, staff members are not essential, but officers of the House are essential to run the place.

Mr. Gurmant Grewal: But sometimes there could be examples of staff members who are essential for a member to carry out their job. For example, the member may not be very computer literate, and they may have to go to the computer to retrieve information, follow up, go into detail, go on the Internet, check their e-mail, or something like that. Many members don't know how to check their own e-mail.

• 1610

So it becomes essential that staff members should also be an essential complement of the whole game, even though it's not related directly to the case. There could be arguments on both sides. Staff members could be considered essential as far as the carrying on of duties of members of Parliament is concerned. So I don't quite agree with you when you say they are not.

Mr. Joseph Maingot: Well, that's fine. The thinking is that Parliament, the House of Commons, is the most important secular body, and it needs its members, and it's the members who do the work and vote in Parliament. So the idea is that if you affect the ability of a member to come to Parliament, then that could be contempt, because it's necessary for them to perform their function, and they can't perform their function unless they're able to attend. They have to be protected, and that's why the House has the power to punish, because they need the members to perform the function, not the staff. You members need the staff, but Parliament itself, the House, doesn't need them for purposes of privilege.

Mr. Gurmant Grewal: I get your argument, but still...

Anyway, since the members have the right of access to go to their offices and to the parliamentary buildings, if there is a demonstration happening outside or any activity going on and the members are prohibited from going into their offices or having access to their offices—I won't go into staff, because it's a grey area—who is responsible? Let's say hypothetically a member is stuck in a situation where he's prohibited from going to his office or any parliamentary building. Whose protection should he seek at that time? Would it be RCMP? Would it be the local Ottawa-Carleton police? Or is it the security of the House of Commons? Who should the member go to to seek help? Who's responsible?

Mr. Joseph Maingot: I think it's been said elsewhere that the security staff of the House of Commons have no jurisdiction outside the precincts of the House. It's also been written elsewhere that when there are problems with respect to what takes place immediately outside the precincts, there is an arrangement for the Sergeant-at-Arms of the House of Commons to get in touch with the local police or RCMP to assist in that regard.

As a member, you have the opportunity to raise it in the House as a question of privilege. But if you're actually obstructed, and from a practical point of view, if you're trying to get in and you can't... Unless you're being assaulted, the security staff are reluctant to actually get involved outside the precincts, and because of that arrangement of the Sergeant-at-Arms, you have to wait a bit. But you have the privilege of raising the matter in the House of Commons and having the House of Commons deal with it, and hopefully it will be dealt with in such a way as to discourage other people from doing the same thing.

Mr. Gurmant Grewal: Okay. Where do we draw the line? Would it be only the Parliament Buildings, or does the location cover the residence of a member of Parliament and his working place? If I'm going in the evening to my place or coming early in the morning to my office, would it be constituted as from my residence to here? Or would it be only in the precinct buildings?

Mr. Joseph Maingot: Let me put it this way. If somebody approaches you and they know you're the member for such-and-such, and if they're not happy with what you're doing and they obstruct you for that reason, then the privileges of Parliament would be there to protect you; the authority of Parliament would be there to protect you. But if you're approached for other reasons, if you're obstructed for a personal reason, that has nothing to do with Parliament and your work in Parliament, so no privilege would be involved there.

Mr. Gurmant Grewal: Thank you.

The Chair: Joe Fontana, then John Harvard, then the chair briefly, and then Stéphane Bergeron.

Mr. Joe Fontana: Thank you, Mr. Chairman.

Let me try to understand the definition of “precinct” as I've been following this discussion. Do I understand then the precincts of Parliament to include all offices of Parliament, including the offices of a member of Parliament—hence the Victoria Building, the Wellington Building, the Confederation Building, and so on? So when you're talking about the precincts of Parliament, are you talking about any parliamentary office complex or office building? And therefore, if a member is denied access for whatever reason, that is considered a case of privilege and contempt of Parliament?

• 1615

Mr. Joseph Maingot: Well, not for any reason.

Mr. Joe Fontana: Well, the reason specifically—

Mr. Joseph Maingot: Dealing with attending Parliament and a session of the House.

Mr. Joe Fontana: Sure, yes.

Mr. Joseph Maingot: I've written in my book:

In the parliamentary sense, the precincts are the premises which the House of Commons and the Senate occupy from time to time for their corporate purposes. It includes those premises where each House through its Speaker exercises physical control to enable the members to perform their parliamentary work without obstruction or interference.

Then I go on to say what are those buildings in Ottawa, and you know where they all are: the Victoria Building, the Promenade, and so on.

Mr. Joe Fontana: Okay, so I take it then that those are the precincts of Parliament?

Mr. Joseph Maingot: It's a little awkward, Mr. Fontana, because, for example, in the Promenade Building, on the second floor there's a cafeteria and the Citizen, so it can be a little awkward. But that's the general definition.

Mr. Joe Fontana: On the precincts of Parliament, I think you started to talk a little about constituency offices, as Gurmant says. Would you consider those to be the precincts of Parliament, even though they're outside the capital? They're in other cities, but essentially they're there for the purposes of doing one's parliamentary work.

Mr. Joseph Maingot: Well, of course a member does more than parliamentary work, and it has always been the position of the House and elsewhere that when you're speaking of a constituency office, you're really speaking of the member in his other capacity. He's there to serve his constituents, as opposed to performing his parliamentary work.

Mr. Joe Fontana: But isn't all of that work related to parliamentary work? If someone comes to see me about their unemployment insurance and he has a problem with the policy of EI, as an example, and I'm there to receive him and I'm precluded from getting into the office to deal with that policy issue, you mean to tell me that wouldn't be considered a privilege that's being denied me, to deal with my constituents?

Mr. Joseph Maingot: There are two aspects of that.

Mr. Joe Fontana: The only reason I ask you that is... I think Diane Davidson said here's an opportunity. It hasn't happened that often, but if we're going to look to the future and if we truly want to set some guidelines or even clarify what privilege is and what contempt of Parliament is, then we should know to what latitude we may want to take this.

Gurmant has even asked about staff. I couldn't do my parliamentary job unless my staff were there. Sure, I could get to the House of Commons and stand up and vote, but I sure as heck couldn't do an awful lot of things without their assistance. We're trying to look to the limits of where that privilege may extend, be it precincts, staff, or whatever.

I suppose if I were prevented from getting into my constituency office for the purpose of doing parliamentary work—because it's all parliamentary work—I could stand in the House of Commons on a point of privilege and wait for the Speaker to determine whether or not that was a privilege that was breached. I could try it that way.

Mr. Joseph Maingot: With respect, Mr. Fontana, the member in his constituency—not only in his constituency, but elsewhere—is not only doing parliamentary work; he wants to get re-elected too.

Mr. Joe Fontana: But that's all parliamentary.

Mr. Joseph Maingot: There has to be a nexus with a parliamentary proceeding.

Mr. Joe Fontana: What's a parliamentary proceeding then?

Mr. Joseph Maingot: Well, this is a parliamentary proceeding.

Mr. Joe Fontana: Hearing witnesses and voting, is that the extent of what you think my job is?

Mr. Joseph Maingot: No. I've tried to deal with that in the book too: What is a parliamentary proceeding?

Mr. Joe Fontana: That's what I'd like to know, because at the end of the day, we're given an opportunity to define what a breach of privilege is, and I'd like to know how far we can go. I'd like to say that if I'm prevented from getting into my constituency office to do my work, that may very well be something I might want this committee to consider. Or the fact that my staff is being prevented from getting into my office or from getting into the House of Commons may very well be a privilege that is mine but is extended to my staff for the purposes of doing my parliamentary work, committee work, or what have you.

Mr. Joseph Maingot: I can certainly understand the thrust of your questions, Mr. Fontana. These are things you have to consider. Up to now it has not been considered essential for the purpose of parliamentary privilege that the staff of the House be covered under the cloak of privilege and the corporate privileges of the House.

• 1620

Mr. Joe Fontana: In your expert opinion, is that worthy of consideration?

Mr. Joseph Maingot: Of course it's worthy of consideration, but you have to look at the other side too. Does your staff include the voluntary staff of just the paid staff? There are a lot of factors to be considered.

You say all your work in your office is parliamentary. I don't doubt that, but there is a lot of work done in members' offices that has in a sense nothing to do with a parliamentary proceeding. Most of it, I suppose, does, but a lot of it does not.

Traditionally, in the law of parliamentary privilege, there has to be a nexus, a connection, with a parliamentary proceeding. Because members are necessary to perform functions—to vote, etc.—in the House, and because officers of the House are required, they're covered. But up to now, the staff of members have not been considered.

Mr. Joe Fontana: But the remedy afforded individual members and members collectively is that we can stand up and make a point of privilege in the House. Or the remedy if I'm being obstructed is to call upon the Sergeant-at-Arms, in a precinct that the Speaker has control of, to ensure my access to my parliamentary office or to the precincts of Parliament. That would be one remedy.

Or if it were outside the precincts, as you indicated, if someone stopped me or Gurmant and said, “I don't like how you voted last night, so you won't be able to get to the House of Commons today, because I'm going to obstruct you”, I suppose in that particular case I'd have to get the Ottawa police involved, because the jurisdiction doesn't extend to Sparks Street or any other place I might be, right?

The other thing too is that in the case of the Ontario legislature, as I understand it, an injunction was asked for to prevent certain pickets from being within x number of feet of Queen's Park. Therefore, if the pickets weren't there, then staff and anybody else could get access.

I'm thinking of what remedies are available to Parliament or to a member for the purpose of ensuring access.

Mr. Joseph Maingot: Yes, it's an important consideration, especially because downtown you have many buildings here that are affected. There are two buildings on Sparks Street that everybody is walking by, and there could be picketing there.

You have the powers of the House to deal with a person who does that, and usually it's supposed to have the effect of stopping people from doing it subsequently, if you find them in contempt and then jail them. You haven't jailed a person here since 1913.

Mr. Joe Fontana: Nor do I think that's an appropriate thing.

Mr. Joseph Maingot: Yes, but you want to make sure nothing untoward such as that occurs. It doesn't happen that often. It happened in February, and I don't know the last time it happened. It's something where you have to be subject to the vagaries of the law—the civil law and the criminal law—and what goes on in the world.

Mr. Joe Fontana: This is my final question.

If we failed to act on this particular reference, would it prejudice our future deliberations on any particular issue? In other words, if we don't act on this particular one, will it in fact prejudice our legal or our future actions, because we haven't taken action on this one?

Mr. Joseph Maingot: No, it's always without prejudice.

Mr. Joe Fontana: Is it your view that we should take action so that it's clear what those lines are, so that in the future people understand what it is?

Mr. Joseph Maingot: Well, if the evidence is that the member was actually obstructed, intimidated, and physically assaulted trying to get into his office, that's pretty heavy-duty stuff; that's pretty clear. But what is the punishment?

Mr. Joe Fontana: But it doesn't have to be a physical assault.

Mr. Joseph Maingot: No, but just from what I recall reading, there was physical violence and intimidation. No, you don't have to touch someone, but threaten.

The Chair: John Harvard, Marlene Catterall, the chair briefly, then Gurmant Grewal.

Mr. John Harvard (Charleswood St. James—Assiniboia, Lib.): Thank you, Mr. Maingot. I appreciate your comments. I want to say I'm not a permanent member of this committee, so perhaps I'm not up to speed on the incident that occurred and triggered these two motions before the House of Commons. But I want to make a couple of comments, and then I have one or two questions for you.

• 1625

It seems to me, from what I've heard from you and from what I know about the incident, that we really have a competing set of rights and privileges. Certainly people who work for the civil service and elsewhere have a right to speak out, to express their concerns about whatever it might be. They have a right to demonstrate—perhaps not inside the Prime Minister's office and so on, but they do have a right to protest. And I would assume that in most cases they also have a right to picket.

So on the one side of the ledger or the equation are their rights and privileges, and at the same time, we MPs have our rights and privileges, especially in this context of doing our duties. Certainly the citizenry, ordinary people, or anybody just can't weigh in and obstruct the kind of work we do.

I would say there obviously have to be some kinds of guidelines, controls, and discipline, because we can't have mobs out there. And there may be, as Mr. Fontana pointed out, some need to have clarification as to what this is all about and what our duties and responsibilities are.

But what I'm getting to, Mr. Maingot, is this. I would be very loath, as an MP or as part of the collective of this House, to start throwing our weight around. I would be very loath. It seems to me anything we do here should be done with a touch or a measure of great restraint, because after all, we have a relationship with the people out there that is important, and we can't be seen undermining that. In other words, I don't think we can be too official about this, or officious.

It is possible that in this case there were some excesses, but excesses occur every day. I might be driving down a highway at five kilometres over the speed limit, or seven kilometres, or 10 or 12, and perhaps I'm observed by a patrolling officer and he ignores it. He perhaps could charge me if I'm one-tenth of one kilometre over the speed limit, but he chooses not to.

Getting back to our situation, we have to be very careful. What's molestation? I don't know.

The Chair: Actually it's a fairly technical term in this case. It's not the very general use of that word.

Mr. John Harvard: But what about obstruction?

The Chair: That's just so you know. Sorry. I didn't want to interrupt you, but we've established that.

Mr. John Harvard: Well, what about obstruction? What about interference? This is where I'm getting into a question or two. What constitutes interference with one's duties? If someone obstructs me somewhere within the precincts of Parliament and I'm delayed five minutes, is that obstruction? If I miss 10 minutes of a meeting, is that obstruction? How far do we—

Mr. Joe Fontana: Some might welcome that.

Some hon. members: Oh, oh!

Mr. John Harvard: Well, yes. But again, I would hope that whatever we do, we do it with restraint. These rules should be carried out very loosely.

In your experience, from what you know about this—and obviously you know a lot more than I do—has it been the practice of parliamentarians in the past to approach these kinds of matters with great caution?

Mr. Joseph Maingot: Certainly it's changed since the 18th century in England, when they put people in jail for fishing in a member's pond in his constituency.

Some hon. members: Oh, oh!

An hon. member: I'd like to reintroduce that.

An hon. member: I don't fish.

Mr. Joseph Maingot: Times have changed considerably, and of course we're very conscious of the world outside. We have to be circumspect.

• 1630

The general rule is whatever is necessary for the House to perform its functions. This is it. You need the attendance of members, and if a member is obstructed, you have to decide whether, under the circumstances, that obstruction is something you want to deal with—whether the dignity of the House is going to be affected if you don't do something about it by finding that person's act a contemptuous act.

Mr. John Harvard: But we're called scallywags, we're called the damnedest names every day on On the Line, and so on. If someone obstructs me, if you want to use that word, and I miss half a meeting or a whole meeting, is that as bad as or worse than some of the language that is used towards politicians on the air every day? Listen to the Reform Party. My God, if you're talking about dignity of the House, they should all be banned forever.

Mr. Joseph Maingot: As I say, you have to decide whether the interference is improper, and of course it's the House that decides whether the facts in question represent contempt of the House. That's really it. So in your wisdom together, in all of your common sense together, decide what you should do about it.

An hon. member: It's called chaos.

Some hon. members: Oh, oh!

Mr. John Harvard: Would you advise caution, though, or restraint?

Mr. Joseph Maingot: Well, you obviously want to be circumspect, yes, absolutely.

Mr. John Harvard: Okay.

Mr. Joseph Maingot: A lot of things happen. People have thrown things on the floor of the House.

Mr. John Harvard: Blood.

Some hon. members: Oh, oh!

Mr. Joseph Maingot: I can't think of anything more undignified than that to take place.

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Or molestation.

The Chair: Marlene Catterall, then the chair, and then Gurmant Grewal.

Ms. Marlene Catterall: That's a perfect lead-in to my prime question. If the committee were to conclude that in fact there was interference that constitutes contempt, and if it were to decide not to take action, what would be the implications of that? In other words, what would be the implications of Parliament choosing not to invoke its privileges?

Mr. Joseph Maingot: It's often happened in the past that Parliament, both here and in the U.K., has found that something that was done constitutes contempt, but that under the circumstances it would be best not to pursue it. For example, people have done things within the chamber here because they just want to get some publicity. So they worded it in such a way that it is contempt—it's affected the dignity—but under the circumstances, they decided not to take any action.

Ms. Marlene Catterall: Okay.

I want to thank Jamie, by the way, for some excellent briefing notes here, which only serve to confuse me, not because of the quality of the briefing notes, but because of the esoteric nature of some of the rulings, and in some ways the almost contradictory nature of some of them.

When molestation involves an assault of some kind, how broadly can we define “assault”, for instance? Can it include verbal or emotional abuse towards a member of the House?

Mr. Joseph Maingot: Well, you can be molested in different ways—by having a writ served on you for a variety of things or by being charged under the Highway Traffic Act or the Criminal Code—but the molestation has to connect, has to have some nexus, with a proceeding in Parliament. It really is up to you, in your collective wisdom.

Ms. Marlene Catterall: Could it be emotional and verbal intimidation as well as physical intimidation?

Mr. Joseph Maingot: Members of Parliament and judges get a lot of abuse in print. Is it such that it will constitute contempt of court or contempt of Parliament? It's always a question of weighing. Perhaps the courts are less reluctant to do something, but because you're here to represent the public, you have to be subject to the vagaries of everyday life.

Ms. Marlene Catterall: I'm also reading the note about access for parliamentarians to the Parliament buildings in the U.K., where the House actually passes an order of the House at the beginning of each session, essentially ordering the municipal police to keep the streets leading to the Houses of Parliament free and open.

• 1635

Mr. Joseph Maingot: Yes, well, you couldn't order. You could order the RCMP, I guess, but maybe the other police are under another jurisdiction.

That's something to be considered. I haven't been to Westminister for some time. I don't know how many police you see. You have the bobbies, actually, who are active around the entrance. It's a practical matter, whether you want to do that or not.

Parliament Hill is governed by the government regulations with respect to traffic, and as I say, they still have the arrangement where the Sergeant-at-Arms can call in the outside police. But it's a matter of recommendations and instructions to the Sergeant-at-Arms to get in touch with the police, and it's also a matter of whether they're prepared to do that.

Ms. Marlene Catterall: Okay. This is my last question, Mr. Chair.

I do apologize for having to miss some of what you said. You may have already dealt with this. I will review the minutes, but I want to know if you have anything to add in terms of what we mean by the ability to serve in the proceedings of the House.

It seems our Speaker's ruling was fairly narrow in the 1978 case of an MP appealing before the CRTC. The Speaker said:

Unless I am absolutely convinced that a member's ability to serve in the proceedings of this House has been affected, I cannot find a case of privilege.

I presume that means a little more than being actually in the House voting, participating in debate. Would it include standing committees?

Mr. Joseph Maingot: It includes a lot of things.

Ms. Marlene Catterall: Would it include having access to the materials you need to do your committee work, for instance?

Mr. Joseph Maingot: I have a summary conclusion here of a couple of pages of what constitutes a proceeding in Parliament, to which you need some nexus before it would constitute...

You're protected while you're involved in a parliamentary proceeding, in everything you say and everything you do. Then if you're going to raise a matter of contempt in the House, it has to relate to some connection you have with a parliamentary proceeding.

This is what is before you now: the allegation that members are obstructed from coming into the precincts of Parliament on a sitting day. That would constitute that.

Your question is whether notices of motion and production of papers constitute part of the proceedings. What are we talking about here? Are we still talking about the evidence of what happened, the allegations of what happened?

The Chair: Marlene, we did have some discussion about this nexus, this link, in response to Joe's question. There was a good deal of discussion about that.

Ms. Marlene Catterall: Okay, I'll just review the minutes then.

The Chair: Yes, I think you'll find it in the records.

Ms. Marlene Catterall: Thank you.

The Chair: Mr. Maingot, first of all, I believe we are functioning here between these two great rights or principles of our system. One is parliamentary privilege and the other is the right to demonstrate, strike, picket, and so on. So what we're doing is very important.

I have a couple of points with regard to what you said to Gurmant. Say I came out of my home in the morning in Peterborough and someone came up to me and said, “Peter, I'm going to stop you from going to Ottawa today to vote on that bill”, and they stopped me. That's one situation. On the other hand, say I come out of my house and someone says, “Peter, I'm going to stop you right here.”

• 1640

Did I hear you correctly that the first one of those is actually stopping me from proceeding to perform a... The person knew he was deliberately stopping me from going to perform a function in Parliament. Would that count in Peterborough?

Mr. Joseph Maingot: You have a very good case there, because you're a member of Parliament and you're on your way to a vote, a proceeding in Parliament. You have the connection with the proceeding in Parliament, and you also have the person actually obstructing you for that reason, not for a personal reason. So it has all the earmarks, as far as I can see, for it to constitute contempt.

The Chair: That's interesting. Thank you.

I found Joe's questions very interesting. In your book is a definition of the precincts and a definition of the work of a member. If you think of the 18th century or whenever it was, there was this big room someplace, and the members went into it—there was a janitor who opened the door and a few people like that—and they basically debated and went home. So the work was what went on in that room and perhaps in a few adjacent rooms, where there were committees such as this. The place was the room, the area around the chamber.

But it seems to me, in modern times—and our precinct is a good example of that—the precinct has changed. Parliaments grow like a weed. You mentioned Sparks Street. I suspect the jurisdiction is different on the side of our buildings that abuts onto Sparks Street from the jurisdiction on the other side, once you've stepped out of the building. I understand your point that while you're in a parliamentary building, that's the Parliament.

It's a very complicated situation. We're dealing with more complicated times than they were. It seems to me the definition of “precinct” may well have changed. That's one.

The other is with regard to the work. In the 18th century or whenever it was, the members could literally go and talk. But Joe's point was that we now may not be able to talk unless we can get the speech out of the computer.

I'll give you an example—and I realize, by the way, your point about volunteers and who the staff are. Say I arrive at the parliamentary building that contains my office. Someone stops me, and I'm with someone else. They stop me, knowing I'm a member of Parliament. I say, “I'm a member of Parliament. You must allow me through.” They say, “Yes, certainly, you go through.” I say, “This person who is with me is a member of my staff.” In other words, I identify them as a member of my staff, who is the only person in the world who can get my speech out of the computer. What happens when they stop that person?

Mr. Joseph Maingot: It's a novel point. I don't know whether it's been raised in any other jurisdiction. It hasn't been raised here. You're raising it now. Actually this issue is as a result of these questions of privilege. The question is being discussed.

You have to decide whether the work of a member of the staff of a member of the House of Commons is necessary for the House to perform its function. That's the general rule. That's what privilege is: whatever is necessary to perform your function. This is something you have to decide. The role of the member has changed dramatically. When I first came here, there were no other buildings, other than these buildings here.

The Chair: My main point is this. If I were assaulted in Peterborough by someone—they didn't know who I was; I was just assaulted—

Mr. John Harvard: Physically?

The Chair: Physically, yes, or whatever the circumstances. If I took them to court, I would take the individual to court, or the police would. The police would take that person to court.

In this case—and you mentioned this in your presentation at the beginning—of course we haven't heard the witnesses yet, but I haven't heard individuals mentioned or descriptions of individuals. We're actually dealing with an organization, which is PSAC. In actual fact, the first witnesses from that side who we're going to see are representatives of PSAC. They can send whomever they wish to represent them here. What about that?

• 1645

Is the contempt that of the organization or of the individuals who may—it's alleged—have physically impeded our members?

Mr. Joseph Maingot: I suppose you'd have to decide whether, when you're picketing, you're picketing as an individual or as a member of a union. I'm trying to think of what the courts do when they rule or give an injunction. It's usually an injunction against that union and its members. So I suppose, not unlike that, contempt here would be the actions of those who took part in those events, if it could be established that they were members of that particular union. But whether you could really find responsibility for the people who run the union or not is a matter of fact that you have to look into.

The Chair: As we're doing. We're calling representatives of the union.

What if they say, “First of all, we don't know who was involved, and secondly, we certainly didn't tell them to obstruct members of Parliament”? Is that it at that point, if we can't prove otherwise?

Mr. Joseph Maingot: Otherwise witnesses are going to be called on both sides and you have to decide what actually happened. If you call the head of the union and he tells you certain things, you either accept or don't accept what he says.

The Chair: Okay.

Gurmant Grewal.

Mr. Gurmant Grewal: Thank you, Mr. Chairman.

To follow up on a question you asked, Mr. Chairman, there is a distinction between demonstration and picketing. Under the labour law, if the picketing has legal status, aren't people who are not involved in the labour dispute supposed to be allowed to go to work?

Mr. Joseph Maingot: That's a matter of labour law. I don't propose to suggest that I have any more knowledge in labour law than anybody else.

Mr. Gurmant Grewal: Common sense tells me that if I'm not involved in that labour dispute and everything is going according to the law... Those employees and the union have the right to demonstrate and picket, and when they are picketing, they are simply there for the protection of the rights of the employees who are members of the union. But other people who have nothing to do with the legal status or the legal dispute should be allowed... Common sense tells me they have nothing to do with that. I don't know how far my perception is true or not.

Mr. Joseph Maingot: Picketing is to inform people. It's not supposed to obstruct you from going through.

Mr. Gurmant Grewal: Exactly. Information picketing and secondary picketing are two different things, and their implications are applied to individuals depending on who the individuals are.

Mr. Joseph Maingot: I'm not sure I follow you, sir.

Mr. Gurmant Grewal: Do you want me to explain?

Mr. Joseph Maingot: Picketing is part of life in the civilized world these days. Picketing is there to inform people. There are always disputes about whether they're informing or obstructing. That's why you have proceedings in court dealing with whether an injunction is permitted or not, whether it's secondary or primary picketing.

Mr. Gurmant Grewal: Talking about injunctions, can the House of Commons obtain an injunction to keep the picket line at a certain distance so that members of Parliament and their staff are allowed to go into the building? Can they determine the distance? Can they obtain an injunction and have it perpetual—a continuous or permanent injunction?

Mr. Joseph Maingot: It's a question of whether the House is a suable entity. It can sue now with respect to contracts. Otherwise the House of Commons is only an entity as part of Parliament. But the House has been sued in the past through its officers. There's all kinds of litigation dealing with officers, where they've been sued for what has taken place.

• 1650

I'd have to confirm that with what's been written. I didn't deal with that. I didn't think of that before I came here.

Mr. Gurmant Grewal: Can you follow up and send it to us if you find it? I would like to know if the House of Commons has the authority to obtain that injunction. I wonder if it would be a solution to future problems. It could prevent any future problems.

Mr. Joseph Maingot: I'm sure Mr. Robertson is more than able to give you the answer to that.

The Chair: Jamie, do you want to comment now?

Mr. James R. Robertson (Committee Researcher): In time we will prepare some research on that.

Mr. Gurmant Grewal: Okay, thank you.

The Chair: Marlene Catterall, but very briefly.

Ms. Marlene Catterall: In the discussion so far we have talked about members of Parliament and staff of members of Parliament. I don't think we've made the distinction between staff of members of Parliament and staff of the House of Commons, who are required to make Parliament function. Would you see a distinction between obstruction of those two groups of employees?

The Chair: Marlene, we made the distinction.

Ms. Marlene Catterall: Okay.

The Chair: Unless I'm wrong—and you can nod or shake your head—Mr. Maingot said there's no question with respect to staff necessary for the operation of the House of Commons and of Parliament.

Mr. Joseph Maingot: That's been the traditional view. Officers are protected in a sense. For example, with respect to usually provincial laws, most provinces provide that you don't have to serve jury duty. The odd time, a member of the staff of the House has been called for jury duty, and depending on what that person did, the court has been advised that that person is necessary for the House to perform its function.

Ms. Marlene Catterall: Thank you.

The Chair: Mr. Maingot, again I thank you for your expertise and your patience. You're very kind. You can tell there's a great deal of interest in what you had to say. Thank you very much indeed.

Colleagues, we meet again tomorrow—that's March 11—at 11 a.m., our usual time. The order of the day is the main estimates for 1999-2000. Our witnesses will be the Speaker, the Clerk, and Major-General Cloutier.

By the way, with respect to this topic, we meet on Tuesday, when the witnesses are our colleagues, the members of Parliament. We follow that with Wednesday, when the witnesses will be representatives from PSAC.

Thank you very much. The meeting is adjourned.