[Recorded by Electronic Apparatus]
Thursday, May 9, 1996
.1107 
[English]
The Chairman: Order.
Mr. Speaker (Lethbridge): I have a point of order, Mr. Chairman. It's about establishing the list of witnesses, how it's done. I appreciate Mr. McWhinney's being here this morning, and I certainly appreciate his time - I respect him very much - and I raise the point of order with the qualification that I was away for a few days last week. But are the lists of witnesses prepared by an all-party executive committee of this committee, and has that executive committee come back to this committee and made a recommendation to the full committee about who the witnesses will be and what sequence of agenda we will use to deal with those witnesses?
The Chairman: Does anyone wish to speak to that point of order before I comment?
On the point of order you raise, we did discuss the submission, if you will, of potential witnesses, and all members were asked if they wished to submit witnesses. Colleagues should know they have in their possession the only list I received, which was a list that came from the members of... I think it was Mr. Frazer's memo to me. That remains the only list I have.
Mr. Speaker: Mr. Chairman, could I have clarification, then, on how Mr. McWhinney was chosen as the first witness by the committee? Did you do that on your own, Mr. Chairman, or is there a process by which we are going to set this priority of witnesses? And are all political parties involved in that executive committee -
The Chairman: No.
Mr. Speaker: - for example a representative from the Bloc, certainly, a representative from the Reform Party, and a representative from the Liberal Party, along with your leadership, making a determination of priorities and then recommending that back to the committee for approval? Is that process -
The Chairman: No, that is not the process. That could have been a process, but in answer to your first question, all the parties agreed, your party included, that Mr. McWhinney would be invited to appear as a witness. I'd have to refresh my memory by asking the clerk, but it was literally weeks and weeks ago.
Jack, you were at that meeting, so you might want to share that information with Mr. Speaker.
Mr. McWhinney's appearance was predetermined by all the parties. It was proposed at the time by the members of the Bloc, I believe. In fact, I believe it was Mr. Ringma who agreed to it. I've forgotten who it was. It was at the time when we agreed on the rules by which I would guide the chair.
.1110
The other thing we agreed was that we would hear from Mr. Maingot, so he is at the table at the moment.
So what I had proposed at the last meeting was that the next witness after Mr. Jacob would be Mr. McWhinney, and then Mr. Maingot. That was the extent of the work on which we had developed a consensus. On the rest there is no consensus at the moment. As your chair, I'm at your will.
Mr. Speaker: Would you entertain a motion, Mr. Chairman, that an executive committee be established that will make a recommendation as to who the subsequent witnesses will be and establish the priority of those witnesses? That committee in turn will recommend it to the full committee, and at that point we'll have full committee approval. If you will accept the motion, I will move that, Mr. Chairman.
The Chairman: Do you want to comment on the point of order first?
I think we're still dealing with the point of order.
Mr. Milliken (Kingston and the Islands): I'd like to speak on a point of order.
As I understand the proceedings, Mr. Chairman, we have agreed, as outlined by you, to hear two other witnesses, and we should hear those. My suggestion is that at the conclusion of those witnesses' presentations and our questions we ought to have a meeting at which we can discuss what we'll do from there.
The position we were in is that the Bloc members have refused to come to a steering committee meeting - I'm told. They don't want matters in respect of witnesses to be decided at the steering committee. That was the indication given at a previous meeting. Perhaps it was a fit of pique byMr. Bellehumeur at the time, but I assume that he was serious in his comment.
Frankly, I don't mind making the decision in the full committee. I would be happy to discuss in full committee what further witnesses we need to hear and what we might expect to hear from them, and also have an opportunity as members to comment on the evidence we've heard so far, because frankly I think we've all been very good as members in asking questions of the witness and in not using our time to make speeches. I think we're getting to the point at which we might find it helpful to express views on the subject and then make decisions as to what further witnesses we're going to hear.
If we finish with both these witnesses today - and I don't know if that's anticipated - then we could do this next Tuesday, or alternatively next Thursday, and have an open discussion in the committee as to how we're going to proceed.
For that reason I hope that Mr. Speaker might refrain from putting his motion, because I don't think we're going to get much cooperation and frankly I would rather have a full discussion here on which witnesses we will hear. We'll all have something to say about it, rather than just a select group.
The Chairman: On this point of order, I'm prepared to rule that we shall proceed with Professor McWhinney and Mr. Maingot pursuant to Mr. Milliken, but I'd rather do it if you are in agreement with that process, Mr. Speaker.
Mr. Speaker: Yes, I would agree.
Number one, I wanted clarification as to what we had done, and that's been established. I accept those two witnesses in that sequence.
Secondly, Mr. Chairman, hearing the comments here, I would appreciate it if you would set in place, possibly at the end of today's meeting, or as early as possible, a process by which we shall determine the next sequence of witnesses.
The Chairman: Mr. Boudria, did you have a further comment?
Mr. Boudria (Glengarry - Prescott - Russell): Yes. Because there was no prior notification of this, I have already scheduled events for today. I have one at 12:15 p.m. and some of our colleagues have one at 12 noon, so there is no room to have that kind of a meeting to decide what, if any, other witnesses we would like.
Perhaps at the end of the next meeting, once we finish with the list of witnesses already established - and I believe Mr. Maingot is the last one - we can make whatever determination we feel like.
The Chairman: I thought I shared that point of view with all of you -
Mr. Boudria: Let's do it.
The Chairman: - on Tuesday, which was that it would be Mr. McWhinney and Mr. Maingot, depending on Mr. McWhinney's schedule. He's kindly agreed to make some changes and he's here. I've spoken to Mr. Maingot and I understand he is available for Tuesday. So if it's agreeable we will make a decision on future witnesses after or at the end of Mr. Maingot's appearance on Tuesday.
Is that agreeable to everyone? Mr. Speaker, is that agreeable to your party?
Mr. Speaker: Yes.
The Chairman: Agreed.
At the end of our meeting on Tuesday, Mr. Frazer raised a point of order that the judge advocate general had conducted an investigation into Mr. Jacob's communiqué and apparently had provided a report of his findings. Colleagues, Mr. Frazer requested that the committee ask that the report be made available to the committee and I indicated at that time I would take the point of order under advisement.
.1115
Since then I have spoken directly with Mr. Collenette, the Minister of National Defence. As members are undoubtedly aware, the judge advocate general is also the chief legal adviser or counsel to the minister. I am advised by Mr. Collenette that the report referred to by Mr. Frazer is in fact a legal opinion or legal advice that was tendered to the minister and the government.
As I mentioned at the end of the last meeting, Beauchesne's makes it very clear in their citation 446.(2) that "legal opinions or advice provided for the use of the government" are exempt from production. Accordingly, as your chairman I must rule that it is not appropriate for the committee to request or order the production of the document and that a motion to do so would be out of order.
Mr. Frazer: I have a question. I believe the ruling says the document may not be demanded, but doesn't say it can't be given to the committee, presumably with the minister's approval. Am I to understand from what you said that the minister has refused to make the document available to us?
The Chairman: I wouldn't call it a refusal. I would call it a compliance with one of the rules of Beauchesne's that legal opinions... I'm not going to editorialize. I asked for the judge advocate general's report, and was told that it was legal advice and that it would be unavailable, based on its being legal advice.
Mr. Frazer: Thank you, Mr. Chairman.
The Chairman: Thank you.
As you know, Dr. McWhinney is our witness this morning. Welcome, Dr. McWhinney. As many of you know, he's a distinguished academic scholar. He's a widely recognized expert on the Constitution and has been a professor and visiting professor at major world universities and centres. He has served as a consultant and an adviser to the governments of Canada, Ontario, Quebec and British Columbia and to the Cree nations, as well to the Secretary General of the United Nations and a number of foreign governments. He was a member of the Permanent Court of Arbitration at the Hague from 1985 to 1991. He is the author of 25 books and co-author of 13 books.
Dr. McWhinney, some of us might wonder what you're doing in Parliament now, but I would like to welcome you this morning. I understand you have a very brief opening statement.
Mr. Ted McWhinney, MP (Vancouver Quadra): Thank you, Mr. Chairman, and welcome back to some of my colleagues. I had the pleasure of serving on this committee when its eponymous chairman was our friend opposite. It's a pleasure to be back.
I have prepared a brief statement in English and in French. Copies were given to the clerk of the committee. Unfortunately, by oversight we didn't make extra copies, but I've instructed my secretary to make them. So before I finish this morning, I think you should have them in French and in English.
I appear here - at least I hope to appear here - in a technical capacity, in an expert capacity, rather than as a member of Parliament. And for these purposes I have re-read opinions that I gave at somewhat earlier periods when I was not in Parliament. Among others, I was a consultant to the United States Senate Committee on Campaign Activities, the Ervin committee.
As you know, the United States borrowed into its constitution the English constitutional institution of impeachment from the 17th century. It was written into the American constitution at the end of the 18th century. It's a very elaborate procedure and they are perhaps more up to date than anybody on the evolution of the English rules if they are to be applied as a still-living institution.
I've also, though, given advice in an expert capacity to legislatures that have been considering the issue of expulsion of their members for alleged misconduct or in fact for actual conviction under the criminal law. A recent opinion I gave on that is published in the Canadian Parliamentary Review.
I have this statement here as basically a résumé of positions presented twenty years ago and ten years ago, and I hope they'll be of help to the committee. Since I think you now have these reports, I won't shame you by reading them. We often read. I'll simply give a résumé of essentially what I've said.
.1120
It is often said Parliament - and this is our Parliament - is a high court of Parliament. This was in origin the British Parliament. It originally fused governmental powers, the Curia Regis - it has roots going back in fact before the Norman conquest, back to the original Anglo-Saxon Witan... Executive, legislative, and judicial powers were fused in Parliment, and Parliment residually exercises judicial powers. But since the great constitutional battles of the 17th century in Great Britain, which vindicated those judicial powers of Parliment, in fact there has been an atrophy of the judicial powers of Parliment, with the consent and acquiescence of Parliment itself, to the point where the criminal law powers of Parliment, defining criminal law in the broadest sense, have essentially been unused since the beginning of the 19th century. The trend here, which is aided by another principle, equality before the law, has been for the British Parliament and parliments deriving from it to subject issues of the conduct of their members, their conformity to the laws of the land, to the ordinary courts of the land and the ordinary processes, to take it outside Parliment itself.
This was essentially the thrust of the evidence I gave the United States Congress in suggesting that in interpreting their own powers - and remember, their powers have survived - they should make a distinction between political actions of a parliament against its members and criminal law-based actions. In the 17th century in England there is no doubt ministers were tried by Parliament for political offences, their political judgment, and they would lose their heads over it. I think that was an unfortunate trend even in the 17th century, but it was constitutionally necessary. I made the basic point that in the British Parliament and British-derived legislatures the criminal law powers have fallen into desuetude and they are subjected to the jurisdiction of the ordinary courts of the land, with equality before the law.
Professor Dicey, by the way, on the basis of a wrong example from his study of French institutions in the Conseil d'état a century ago, thundered against the concept of a special regime of privileges for parlimentarians that wasn't open to ordinary citizens.
That is the first point. The second basic point I would make is that within the evolution of Parliament itself, the evolution of the party system, which dates from the 18th century in Great Britain, the concept of government and loyal opposition, also the concomitant concept of the self-restraint of government majorities, for these purposes, again the trend has been to take issues of political judgment out of Parliament itself and into the ordinary courts.
In the specific case you have before you I would add one further point to this: that the facts occur outside the rayon of Parliament itself, outside Parliament's chambers, outside its precincts. So I suppose there would be an extra case for saying Parliament's criminal powers, vestigial as they are, should not apply in this case.
I had occasion to give opinions in this Parliament. When I say "opinions", they were confidential opinions. They happened to be interesting, one involving a senator who had been served - or attempted to be served - with processes within the House, including an attempt to serve a process by fax. I will tell you simply that I advised that this was contemptuous of Parliament and should be resisted, and the civil authorities, if judges were involved, if need be should be advised that this was conduct unbecoming a judge. So we are privy from service of processes within the House. These are readily available for service outside.
Secondly - and again I simply refer to the case - I exchanged some correspondence with the Speaker in a private capacity concerning a case of alleged assault occurring within Parliament itself. I expressed my own opinion then that if the facts were substantial enough to warrant action, again they should be taken outside of the jurisdiction of the House and transferred to the ordinary courts.
.1125
By the way, I expressed the private opinion that the facts were not substantial enough to warrant action within the House or outside.
You get into other areas. I'll simply comment on them.
I've always argued for full discretion of the Minister of Justice and of prosecutors. Having been a prosecutor myself, I am aware of the discretionary power to act or not to act on particular facts. But this seems to me to be an issue separate from the one you invited me here to testify on, and undoubtedly you can get advice from other crown prosecutors on it.
I'll simply rest my formal presentation there, Mr. Chairman.
The Chairman: Thank you, Professor McWhinney.
I invite our colleague Mr. Bellehumeur to begin.
Colleagues, I have been somewhat lax in enforcing time allocation - and I use that word loosely - but I'd like to revert to a more traditional ten-minute opening round to all the parties.
An hon. member: Five minutes.
The Chairman: Five minutes, then. I don't care; it's just to give members the opportunity...
I'd like to do ten minutes - ten minutes to the Reform Party, ten minutes to the Bloc, and ten minutes to the Liberals - and then we'll go to five-minute rounds.
[Translation]
Mr. Bellehumeur (Berthier - Montcalm): I'd like to thank you for appearing as a witness in an attempt to shed some light on this matter, Mr. McWhinney. As I understand the process which gave rise to these proceedings, Mr. Jim Hart MP raised the question of privilege which, if accepted by the Speaker, would be followed by the tabling of the motion.
But in order for this question of privilege to be accepted by the Speaker, a precise charge had to be made and this was done, since March 12 Mr. Hart was clearly asked whether the member for Charlesbourg was guilty of sedition.
I think it is sufficiently serious to meet your criterion.
The Speaker also asked him to make a prima facie case for his allegation. This is where I see a slight problem occurring. I'd like to hear your opinion on the matter.
On March 12 Mr. Hart also said to the Speaker that the communiqué issued by the member for Charlesbourg was addressed only to the French speaking members of the Canadian forces. When he testified before our committee, he apologized for this saying it was a mistake on his part.
Another claim he made in his prima facie case to convince the Speaker was that the communiqué of the member for Charlesbourg was an invitation to desert the Canadian armed forces. He also said that the communiqué was a call to arms.
And as if that was not enough, in his prima facie case to the Speaker in order to table his substantive motion, he said the communiqué released by the member for Charlesbourg called on the Canadian men and women in the armed forces who had sworn allegiance to this country, to desert the Canadian forces with their arms.
Mr. Hart testified before our committee, Mr. McWhinney, and in addition to apologizing for a number of erroneous claims he made, he was unable to provide any evidence for the statement he made on March 12 in making his prima facie case for a question of privilege. He was unable to quote a single of the sentences in the communiqué we are now studying to justify his question of privilege nor was he able to table any document substantiating his interpretation of the communiqué.
I'd like to ask you, Mr. McWhinney, if in these circumstances, you think these serious allegations, that up until now have proven to be unfounded, made by Mr. Hart, influenced the Speaker in his decision to entertain a question of privilege.
Mr. McWhinney: I cannot comment on the reasoning of the Speaker of the House. Only once did I see a question of privilege raised on the basis of a so-called offence against criminal law such as sedition. I think that this goes beyond the present powers of Parliament and the House. It should be referred to a civil court.
.1130
Mr. Bellehumeur: So if Mr. Hart had been serious in his charges, rather than raising a question of privilege, he should have lodged a complaint before the civil or criminal courts in an attempt to have Mr. Jacob formerly charged with sedition.
Mr. McWhinney: I wouldn't want to criticize Mr. Hart's action. He is not a lawyer and doesn't have any legal training but in my opinion, he should have submitted the matter directly to a civil court. As I understand it, since he doesn't have any legal background, it was normal for him to follow the well known procedure of privilege before the House.
Mr. Bellehumeur: There are lawyers who earn their living by providing advice to members of Parliament, and Mr. Hart could have consulted legal counsel before making such charges in the House.
Having said that, if the committee reaches the conclusion that no formal proof can justify the charges made by Mr. Hart on March 12 and that they are based merely on his personal interpretation, what are we going to do with this member, Mr. McWhinney?
Mr. McWhinney: That goes beyond my competence as an expert witness. I can only say that once a matter of privilege is raised with the Speaker of the House, if it relates to a serious criminal offence, it must immediately be transferred to a civil court.
In any case, this goes beyond the present powers of the House. I know from my experience as an expert adviser to the legislative assembly in British Columbia that the decision to expel members of the House who are tried in a civil court is based on certain principles. If a serious offence has occurred, the member concerned is automatically expelled from the House.
In the present situation, it would appear that contemporary constitutional law requires that such matters be immediately referred to a civil court or that the charges be dropped.
Mr. Bellehumeur: Mr. McWhinney, I know that a member of Parliament has rights and privileges. With all your experience, can you tell us, Mr. McWhinney, where do the rights and privileges of one parliamentarian begin and where do they end in relation to those of his colleagues?
Where do they begin and where do they end? In other words, Mr. McWhinney, can I, as a member of Parliament rise in the House of Commons and under the pretext of a question of privilege, accuse Tom, Dick and Harry of every imaginable offence knowing that I am covered by Parliamentary immunity? Can I accuse my colleagues of any kind of offence and then expect not to face any consequences? Knowing that I will risk nothing, can I simply assume that the other member will simply have to find a way of dealing with the charges I made against him?
I'd like you to tell us where my rights as a Parliamentarian begin and where they end.
Mr. McWhinney: That is another matter that we can deal with later. Every member has the right to bring before the House a so-called breach of privilege but it is the House and the Speaker who will make a decision on the matter.
Once the decision is taken, if it is found that the question of privilege is based on a so-called criminal offence, then the matter must be brought to a civil court since it goes beyond the authority of the House.
That is not the rule in the United States but it is the rule in Canada and countries of the British Commonwealth.
.1135
Mr. Bellehumeur: You didn't quite answer my question so I'll put to you again in a different form.
In Mr. Jacob's testimony, he said quite clearly and I think he also gave evidence to this effect that when charges of sedition, treason and all the rest were brought against him, as a result of pressure he had to give up his position as Vice-Chair of the Standing Committee on Defence. He also gave evidence, and everyone will agree on this, to the effect that his name, the name of Jean-Marc Jacob, had been associated with the possibility of imprisonment because of the charges. I'm sure that you have read this in the press.
All this resulted in serious consequences for him both in carrying out his duties as member of Parliament and his credibility in his own riding and in a number of other matters.
Based on your experience and your expertise, do you think that as a result of the charges, the privileges of the member of Parliament Jean-Marc Jacob were breached?
[English]
The Chairman: Mr. Pagtakhan.
Mr. Pagtakhan (Winnipeg North): On a point of order, I wonder if the chair would make a determination whether such a question is appropriate to this particular witness.
The Chairman: Why not? Could you tell me why it's...?
Mr. Pagtakhan: I understood that the purpose of this witness is to make a ruling that it is a matter of a criminal law aspect, that when the determination has been made it should go to the court and not before the House. That of course could not be made until the Speaker has made a ruling. The Speaker has made a ruling that there has been a prima facie case; it was referred to this. Questions related to that are re-creating the debate again in the House. I think that is the type of question that should be posed to Mr. Maingot.
The Chairman: Okay, fine.
[Translation]
Mr. Bellehumeur: Mr. Chairman, I don't think the member understood. I realize he missed a few meetings at the beginning. First of all, our mandate also requires us to look into the consequences that resulted for Mr. Hart and second, the witness is here as an expert and his curriculum vitae shows that he does have the appropriate training to answer this question.
[English]
The Chairman: I'm going to allow the question. I agree with my colleague that the question should be answered.
[Translation]
Mr. McWhinney: It seems to me that there are two questions. The first relates to the privilege of Mr. Hart as a member of Parliament and his ability to raise in the House a so-called breach of his privileges as a member of Parliament. And there may be a second question arising from the decision made on the first question. Was there a breach of Mr. Jacob's privileges as member of Parliament? That is the second question. Was there a malicious intent on the part of Mr. Hart in his complaint alleging a breach of privileges? It seems to me that it is within the purview of this committee to come to a conclusion on this question.
Mr. Bellehumeur: I have no further questions, Mr. Chairman.
[English]
The Chairman: Mr. Strahl.
Mr. Strahl (Fraser Valley East): Thank you, and thanks to Mr. McWhinney for coming here today for us.
Just to get this back on track, if I could, I'm getting pretty sick and tired of this idea that every time we get a witness in here Mr. Hart goes on trial. I don't know what's going on here. I know what's going on, all right: there's a diversionary tactic of the Bloc to keep blaming Mr. Hart for their communiqués and their problems. This happened when Mr. Hart was here, and it continues now. I hope we can deal with the issues at hand.
Our briefing notes from the House, legal advice on parliamentary privilege and contempt, say that the House enjoys wide latitude in maintaining its authority and the dignity of the House. We're not talking about criminal law here; we're not talking about a case where the courts are involved or anything else. We're talking about the right of Parliament and the right of this House to determine what has affected its dignity, when it has been brought into disgrace, ridicule or shame, any of those things.
Mr. Speaker: Or violated the rights - -
Mr. Strahl: If it has violated the rights in any way, we are entitled to deal with that issue, are we not?
.1140
We're not talking about criminal law. As you say, the criminal law is one thing, but certainly we're within our purview to say this has brought disgrace upon the House of Commons and I want to deal with it. Isn't it our right to do that?
Mr. McWhinney: If the original complaint of breach of privilege had been formulated in those terms and those terms alone, yes, although obviously, since it's a rather open-ended formulation, the possibility of an affirmative decision would be the less. As I understand it, the original complaint was formulated in very precise terms, alleging a breach of the criminal law, the law of sedition. Therefore, the base of the claim of privilege -
Mr. Frazer: I have a point of order, Mr. Chairman.
The Chairman: Mr. Frazer.
Mr. Frazer: The original one was not stipulated as a breach of criminal law. In other words, "sedition" wasn't said; it was said that it should be viewed as seditious. That's quite different, I think, Mr. McWhinney.
Mr. McWhinney: No, you're dealing with this concept of colourability. The moment you formulate it in terms that bring in the old common law concept of sedition, the old common law crime now in our Criminal Code, then it seems to me the whole file is governed by that. Therefore I said immediately - as I've said in the previous cases, before I was in Parliament, that came to my attention, and those today - in the 17th century Parliament itself would have decided; in the 20th century the concept of equality before the law, the other principle I've mentioned, says they must go to the civil courts.
My understanding, by the way, is that this matter has been before the civil courts, and the civil courts have decided. If the civil courts should find a conviction, then automatically, under the law of Parliament, that would constitute a ground for expulsion. It's one of the rare grounds on which Parliament today can expel a member. By the way, that privilege should be viewed very severely, because of course it's one way of getting rid of opposition members, and I refer in my paper to the pathological excesses in the Weimar Republic in the 1930s.
But the moment you formulate your complaint of breach of privilege by reference to the law of sedition - I use this term "colourable" only in the legal sense - then it governs the whole nature of the ground of privilege. So I think it is a case where Parliament today should properly say it's not the United States Congress, where they followed a different route, a different historical development of the 17th century. Parliament should properly decide this is not for us.
Mr. Strahl: But, Mr. McWhinney, according to this committee's mandate, as I understand it, if I look at the three things we are looking at, we are not looking at criminal law, we are not looking at kicking anybody out of Parliament, and we are not looking at trying to browbeat the official opposition, or browbeat them out of Parliament, although there may be some who would like to do that.
What we are dealing with is whether or not Mr. Jacob's actions violated the privileges of the House and whether or not they're in contempt of the House. We're not dealing with criminal matters at all. So it's certainly within the rights of this committee and the House to determine whether those things have been contravened.
Don't bring sedition into this. That's not what we're dealing with. We're dealing with whether or not these actions have violated the privileges of the House. Sedition doesn't enter into what we're talking about.
Is it not our privilege to examine this, find out whether Mr. Jacob's comments did violate, bring the House into ridicule, bring it into disgrace, bring it into contempt? Is it not our privilege to do that without going to the courts first?
Mr. McWhinney: If the matter in its origins had been formulated in those very broad terms, and by the way, the risk you take is that the less and less precise it is, the less and less the grounds for breach of privilege... But the moment it is formulated in terms that bring in the law of sedition, then it seems to me the whole file is coloured by that. I don't think you can get away from it, short of a withdrawal of the original request and the submission of a second one. I take it under legal advice that Mr. Hart might have done it differently.
Mr. Strahl: Yet the House decided and voted on the terms of the reference. There were amendments in the House pro and con, and so on, and then the House said we're not dealing with sedition; we're talking about contempt of Parliament. So the House decided - and not just the Reform Party - that this was worth looking into as contempt of Parliament.
.1145
I guess the follow-up question is what does it take to have contempt of Parliament? The way I am understanding you, Mr. McWhinney, is unless you go to court, prove it in court first, don't bother bringing it up in the House. I think that's nonsense. In Parliament, which sets its own rules, surely we're allowed to say this has brought this House into contempt, ridicule, scorn; we are not going to put up with it, we're going to step in. And by stepping in, we're not going to a criminal court, we're saying we're not going to put up with this. And we're going to set the rules now, so when this comes up again - and surely it will - we're not going to be faced with this sucker in the next referendum, because you can be sure the next communiqué that comes out will be worse. We're trying to set the ground rules now so we can say this is not allowed, we're not going to put up with this; the line has been drawn and you've gone too far. Don't we have to do that? Isn't it a privilege to do it?
Mr. McWhinney: If one had proceeded differently in bringing the case, of course you could go ahead on that basis. But I would have to tell you this would be one of the rare examples, the file being as it is now, where the courts, I think, would have grounds for departing from the usual rule of non-interference in decisions of the House. It would clearly be not merely a breach of the privileges of another member to act on a file of this sort, which has the criminal law elements in from the beginning, but in my view it would be one of the rare examples of a judicially reviewable act of Parliament if action were taken in consequence of it. I think there is our dilemma.
But as to your general issue, can Parliament define what privilege is, of course. The case I mentioned, which I didn't cite by name, a case of alleged misconduct in the House in this actual session, was an example where Mr. Speaker looked at a complaint, I believe spoke to the parties, and the matter disappeared, because the consensus emerged to take no action.
It's certainly open for Parliament to do it. But I warn you again that this power of a majority should be construed very, very narrowly, in the concept we now have. Parliament used to be elected without any limitations on its terms. You had a thirteen-year Parliament. With regular Parliaments, the trend again is to submit these issues to the good judgment of the electorate.
Parliament itself is bound by rules of due process within its own internal parliamentary law. That's why I referred to the larger dossier present in this case. From the beginning, it seemed to me, Mr. Strahl, it is flawed in terms of the particular purpose you were looking at in your question.
Mr. Strahl: But given the terms of reference we are dealing with - we're not talking about criminal law, we're not talking about sedition here, we're talking about the terms of reference the House has decided to give this committee - is it not a breach of privilege? You talked earlier about the loyal opposition, which we certainly do not have over here in the official opposition. Is it not contempt of Parliament for someone to say the day immediately after a referendum victory we will be offering all Quebeckers serving in the Canadian Armed Forces a job, in contrast to the oath of allegiance, which again comes out on official letterhead, saying
- I swear that I will be faithful and bear true allegiance to Her Majesty, Queen Elizabeth II, Queen
of Canada, her heirs and successors, according to law, so help me God
Mr. McWhinney: On the facts you cite, and taking into account the development of the facts also mentioned in the discussion in the House, you have created a prima facie case for judgment by the regular courts, for reference to a crown prosecutor and the like; and it seems to me Parliament cannot ignore its contemporary responsibility to follow that route. That is to say, there is no special law for Parliament, no special privilege for Parliament not available to ordinary citizens, and if the issue is an alleged sedition, then it should go to the ordinary courts. If there's a judgment, I assure you it's one of the rare acts in which an expulsion would virtually automatically follow. That's if a judgment were made by the courts that this was so.
You'd have to go through two hurdles: the crown's decision to prosecute and then a decision of the courts. I gather both those steps have been taken, but I must tell you I haven't read the documents concerned.
.1150
Mr. Boudria: I want to preamble my question to Professor McWhinney by saying that I'm not a procedural expert. Maybe I am a layman procedural enthusiast.
I want to go through the following scenario before our witness.
As I understand it - and I want to be corrected and to be assured that I have this properly - a specific charge was made on the floor of the House. Then a motion was put. There are two propositions there, the charge and the motion. One is independent from the other, although one is a prerequisite for causing the other.
The House then saw fit to modify not the charge but the motion. To my understanding, the charge as it was made remains the same. Is that the understanding of our witness?
Mr. McWhinney: Yes.
Mr. Boudria: Two meetings ago I walked out of this room a little bit disturbed by testimony I had heard. One member of this committee, Colonel Frazer, said:
- Mr. Jacob, I am not for a moment suggesting that you were advocating the use of force in
achieving sovereignty - not at all.
- I'm not talking about criminal law, not talking about sedition.
I'm at a loss to know what I'm supposed to be investigating right now.
Mr. McWhinney: Clearly the original charge is sedition, and there is a base for referring it to crown prosecutors for examination. I understand this step was taken.
By the way, I looked for precedents and I could find only one. An Australian cabinet minister in the post-war world skated very thinly to the line and said that if aggressors came to his country pursuing people who had violated international law, then he would urge people to support them. It was a fairly clever statement and it was looked at by prosecutors and they decided there were not enough grounds to go on.
I could tell you from my own experience as a prosecutor what I would do in these particular cases, but you don't want to hear me on that and I'm not here as an expert witness on that.
I simply say that this case from the beginning becomes a sedition case. It cannot, with proper regard to the rights of members - and this is Mr. Jacob - immediately be separated from that issue.
Therefore, with all respect to the House, because it's feeling its way into an area where precedents are still evolving, it seems to me you took the incorrect course by going ahead with these hearings. It would have been better to send it back to the civil authorities.
Mr. Boudria: Is it your opinion that we're having these hearings because of the charge?
Mr. McWhinney: I'm reminded of what Chief Justice Bryan said: "The devil himself knows not the thought of man".
I can't speculate as to your reasons. I don't mean yours personally; I mean collectively as a committee.
Mr. Boudria: Let me rephrase that then. Is it your understanding today that the charges originally made were the basis that was utilized by the Speaker in order to determine that there was a prima facie case of privilege, which was the basis for making the motion subsequently?
Mr. McWhinney: You cannot avoid that conclusion. I think no court of law called on to pronounce on this, as it might peripherally, could avoid that.
Mr. Boudria: Is it your understanding this morning, from Mr. Strahl's questions and statements, that the charge today is identical to what it was when it was made in the House?
Mr. McWhinney: Again, I'd prefer not to comment on Mr. Strahl's reasoning; but separating that off, the answer is yes.
Mr. Boudria: Is it your understanding that the charge as stated today - we're not talking about criminal law, not talking about sedition - as made by Mr. Strahl, is identical to the charge made by Mr. Hart in the House of Commons on March 12, 1996, when he said that there was sedition?
.1155
Mr. McWhinney: The file from beginning to end is the one file. By the way, there are no reflections on Mr. Strahl's good faith, because we're giving a technical, legal opinion here. But yes, the answer's yes.
Mr. Boudria: So it's the same charge?
Mr. McWhinney: It's the same charge.
Mr. Boudria: Do you think that the charge remains then as it was originally, notwithstanding the statement made this morning?
Mr. McWhinney: You cannot avoid it. As I say, if it were to come to the courts, in the rare examples in which courts have made a judicial review of parliamentary decisions... I think an issue involving, for example, expulsion of the member would be a case in which I would urge the court to come in. Yes, I think the court would have to take that conclusion.
You cannot divorce this in a narrow way. You're dealing with privileges of a member in the end. Mr. Jacob has privileges, and he has the right to due process within Parliament itself. I think that is the largest law of the British Parliament.
I cite here the example of dealing with the Irish members. You don't make one law for those you like and one for those you dislike. The rule of law requires equal application.
Mr. Boudria: Here I'm going to be calling for an opinion. I don't know whether you care to answer it. The charge, were it to be in the form Mr. Strahl has made it this morning, as opposed to the different form when it was -
Mr. Strahl: Initially.
Mr. Boudria: No, no. We're talking about the charge here, not the motion. It was established in the beginning. They were two different issues.
The charge we're dealing with this morning, according to Mr. Strahl's understanding of it, is such that we're not talking about sedition or a breach of criminal law.
As repeated last time, or two meetings ago, by Mr. Frazer, we're "not for a moment suggesting that you were advocating the use of force", and so on. Is it sufficiently different, in your view, such that had this latest version of the facts been stated initially, it would have caused the Speaker to make a different ruling as to whether or not there was a prima facie case of privilege?
Mr. McWhinney: I can't speculate as to what the Speaker would have done, but if he had asked my advice, I would have said, prima facie, you can go ahead with this. If he had asked my next advice - do you think it will fly? - I would have said no.
Mr. Boudria: Would you say that this latest accusation is more serious or less serious than the original one?
Mr. McWhinney: As I said originally in answer to Mr. Strahl, it's so open-ended that I don't think it is as serious in terms of a legal pursuit.
Mr. Boudria: It's not as serious in legal terms?
Mr. McWhinney: No.
Mr. Boudria: Thank you.
The Chairman: Thank you, Mr. Boudria. Dr. Pagtakhan, please.
Mr. Pagtakhan: I'll pass. Most of my questions have been asked.
The Chairman: Mr. Speaker.
Mr. Speaker: Mr. Chairman, thank you very much. To Mr. McWhinney, welcome, as well.
I reference the communiqué itself. There are two statements in here that I think are under the privilege of Parliament and should be dealt with as a contempt of Parliament. It deals with the security of the country, the integrity of the laws of our country, and the integrities of the protection of our citizens. It says: "The day after a YES win".
In an earlier discussion, we recognized that there was an interpretation question as to whether the translation from French to English was accurate in that or not. Mr. Jacob says:
- "Québec should immediately create a Department of Defence, the embryo of a major state, and
offer all Quebecers serving in the Canadian Forces the chance to integrate into the Québec
Forces "while keeping their rank, seniority, and retirement funds as a means to ensure a better
transition,"
- "All of this expertise will not disappear with Quebec's accession to sovereignty and personally,
I think that soldiers of Québec origin will respect the people's decision and will transfer their
loyalty to the new country whose security they will ensure,"
It's saying that their loyalty must transfer and that they are to guard this new country of Quebec. It's asking this of people loyal to the country of Canada. This is saying to the laws and minister of our country that they're encouraging desertion and the removal of the protection they were asked to fulfil.
So my question, Mr. McWhinney, is why can't Parliament deal with that?
[Translation]
Mr. Bellehumeur: A point of order.
[English]
The Chairman: A point of order.
Mr. Speaker: You're saying the court should deal with it. Why can't Parliament deal with it?
[Translation]
Mr. Bellehumeur: I have a problem with this, Mr. Chairman. I'd like to understand the logic of the Reform Party.
At the beginning, they said that this was not a call to desert the army or to take up arms and then they insinuate before the witness that the communiqué is a call to arms and to desertion.
I'd like the Reform Party to show some logic at least once in this committee and to tell us what their position is. Do they claim that this a case of sedition, a call to arms and desertion or not? Then we'll know where we stand and be able to get some work done.
[English]
The Chairman: All right. I'm sorry, Mr. Bellehumeur, I'm not sure you're making a point of order. Are you objecting to the line of questioning?
[Translation]
Mr. Bellehumeur: They're misleading the witness, Mr. Chairman. There is no evidence. They are deliberately misleading the witness.
[English]
The Chairman: Okay. I think the witness is not going to be led or misled. We're not in a court of law. He's giving evidence, and I'm going to allow the witness to answer Mr. Speaker's question.
Mr. McWhinney: Mr. Speaker, in answer to your question, there are conclusions in the facts you are making there, and I wouldn't disagree or want to venture an opinion as to whether or not they're the correct conclusions. If the case had arisen on this basis, and the Speaker had referred it to the House, it would be possible for the House to make a decision as to whether statements of this sort constitute a breach of privilege.
It's open for the House to decide whether somebody who later became Prime Minister and who appeared in the House with toeless sandals and no socks was in breach of the privilege of the House. In fact, I understand the Speaker spoke to the gentleman concerned. When he later appeared wearing a polo neck, again, he was spoken to. So Parliament can define what its privileges are.
It seems to me there are conclusions there on the facts that you would be entitled as a member to make - others might make them differently - that I shouldn't get into. But the case didn't arise this way. That's basically been the point I've been making. It seems to me that it was covered from the beginning by the association with the alleged breaches of the criminal law.
If those were held to be correct, they constitute the gravest of felonies, for which of course the civil courts have full jurisdiction. On a conviction, this would be one of those rare cases in which expulsion would be the right of Parliament. It would be virtually mandatory on Parliament as a political choice. But there we're getting into the jurisdiction of the civil courts.
Mr. Speaker: Mr. Chairman, just one question for clarification. I believe Mr. McWhinney has answered this.
As Parliament, we can then decide on the question of whether Mr. Jacob, by sending out the communiqué - we have to make a judgment on that communiqué - acted either properly or improperly, and whether an MP should be allowed to do this or not. It's still the right of Parliament to make a judgment on that and take some kind of action. Can that be done?
Mr. McWhinney: That certainly can be done within the House.
I warn you again, though, on one other point. Parliament's decisions on its privilege are limited to matters occurring within Parliament on the technical term "rayon of Parliament". Since the acts concerned occurred, as I understand, wholly outside Parliament, you might be in a problem in this particular case. But in respect to the sorts of facts you are raising, and given interpretations that different people might make on them, certainly it would be within the competence of Parliament to decide.
Mr. Speaker: In other words, in the definition of "rayon", and if the communiqué was forwarded from the office of the leader of the official opposition, that would bring the communiqué within the parameters of Parliament.
Mr. McWhinney: It might be argued that way. In a reverse way, it's also been argued, of course, that some acts committed in Parliament itself cease to be within Parliament's jurisdiction. For example, a murder committed in the House would clearly be a matter in which the House would abandon jurisdiction to the ordinary civil courts - although in the 17th century it exercised jurisdiction.
.1205
It could be argued that it's a little bit like Brian Tobin's salmon hanging by its fingernails to the net, but because of the letterhead connection this would be committed within Parliament itself. The argument could be made, Mr. Speaker.
Mr. Speaker: Thank you.
The Chairman: Before I turn to Mr. Langlois, I wanted a clarification. Mr. McWhinney, are you suggesting that the internal proceedings of the House of Commons could be subject to judicial review?
Mr. McWhinney: I would recommend... We're getting into a fascinating area in which Professor Maingot and Gérald Beaudoin and others...the frontiers of new law.
The right established in the Charter of Rights to representation in Parliament is so clear that the expulsion of a member is the taking away of the rights of his constituents, and I would argue today that is judicially reviewable. It should be judicially reviewable and I'd be prepared to take a test case free of charge.
The Chairman: Thank you.
Mr. Langlois, please.
[Translation]
Mr. Langlois (Bellechasse): Thank you Mr. Chairman, for your patience with me.
Dr. McWhinney, in view of the fact that in this case three judges, one from Montreal the other two from Toronto and Mississauga, quite recently refused to issue a summons to Dr. Jacob on the grounds set out in sections 59 to 62 of the Criminal Code relating to sedition, does this suffice, in your view, to say that the committee should simply note that the courts refuse to issue a summons and they should close the matter?
Mr. McWhinney: It seems to me that there is no longer a case and that the file be closed.
Mr. Langlois: Thank you, Dr. McWhinney.
Now I'd like to make a few comments. It seems to me that in addition to the political options that we all defend in this House, in different ways and with varying degrees of success, we must also consider the criterion of freedom of expression. We have an example of this in the Red book.
For some weeks now Mr. Chrétien has been quoting at great length pages 20 and 22 of the Red book relating to...
[English]
The Chairman: Excuse me. Colleagues, I'm trying to stay on point with the matter for which we have witnesses here for questioning. We've all basically adopted a rule that this particular hearing is going to be about questions directly related to a communiqué, and I urge the members to put some questions to the witness that relate to that. I have other members who wish to ask questions. Thank you.
[Translation]
Mr. Langlois: You will see, Mr. Chairman, that my comment is related to the communiqué we are examining. Mr. Chrétien refers to pages 20 and 22 as the pledges made by the Liberal Party and states that he has carried out his promise. But there are other members of Parliament who say that this is not true and that the promise was quite different. Would you take a dim view of Mr. Chrétien being called to appear before the Committee on procedure and House affairs to examine the Red book and find out what exactly he said?
Mr. Jacob was elected on a specific political platform. Is it not the responsibility of voters to determine whether he is doing his job? And as far as the government is concerned, is it not up to the Canadian electorate, from sea to sea, to determine whether the Liberal promise was kept rather than being up to the Committee on procedure and House affairs?
Mr. McWhinney: In answer to that question I can refer you to a legal opinion given to the government of British Columbia. Since there is an act requiring the legislature to call elections at least every five years, there are some matters where voters must make a decision. In a situation such as this one, it is obviously up to the electorate to decide. Today it is only in very rare cases of serious criminal offences that the legislature must react immediately and directly to the criminal court's decision once it has been rendered.
Mr. Langlois: Dr. McWhinney, in conclusion, I would like to say that you've been very clear in your answer. Mr. Strahl said that Mr. Jacob's communiqué brought the House into ridicule. In your opinion, did Mr. Jacob's statements bring more ridicule on the House than those made byMr. Ringma, Chatters, Hill and Thompson on Bill C-33?
.1210
Mr. McWhinney: All members are entitled to raise a question with the Speaker of the House and this committee.
[English]
Some hon. members: Oh, oh!
Mr. Strahl: That's just nonsense, Mr. Chairman. You just cut him off a minute ago because you said he got on to the red book, you won't let him talk about the red book, and then you get him to get the preposterous stuff going here. What the... Come on!
The Chairman: I'm prepared to receive a point of order, but...
Mr. Strahl: Well, on a point of order, then, Mr. Chairman, if you won't let him talk about the red book and how many broken promises there are...
The Chairman: I let him talk about it.
Mr. Strahl: You cut him off, though. You said...
The Chairman: I asked him to make sure that his point was directly related.
Mr. Strahl: Yes. Do you feel this is directly related, Mr. Chairman?
The Chairman: Look, colleagues... If you want to raise a point of order, I'd be happy to receive it.
Mr. Strahl: On a point of order, I'd say that's nonsense, and I ask you to rule it out of order. Thank you.
[Translation]
Mr. Bellehumeur: Mr. Chairman, I think it's the members of the Reform Party who are attempting to have the witness make a value judgment on the statement of a member. If we wish to appreciate a member's value judgment, we have to put it in context. The parallel chosen by my colleague is both topical and appropriate. Did the statements made by Reform Party members, Messrs Ringma, Chatters, Hill and Thompson on Bill C-33, a serious subject, bring more ridicule on the House than the statement of Mr. Jacob? We are not straying from the topic. It's the Reform members who are making a value judgment.
[English]
The Chairman: Order! Order!
I must confess that in that context the question is not an appropriate matter.
[Translation]
Mr. Bellehumeur: It's very much connected.
[English]
The Chairman: It's not directly related to this issue and I'll rule it out of order.
Colleagues, we have one last questioner on the list. Mr. Frazer.
Mr. Pagtakhan, did you have a question?
Mr. Pagtakhan: I want to put a question.
The Chairman: Mr. Frazer, you're next, and then we'll end with Dr. Pagtakhan.
Mr. Frazer: Mr. McWhinney, I'm not for a moment questioning your expertise and so on, but I do question your relating the whole case to the original charge. This matter was referred to this committee for the committee to judge and to then recommend to Parliament whether or not the action taken by Mr. Jacob was appropriate for a parliamentarian. It is not a Criminal Code offence. It's a simple consideration: is this the type of activity a parliamentarian should undertake?
A voice: Exactly.
Mr. Frazer: I refer to Mr. Boudria's intervention, when he said that I said to Mr. Jacob - and I admit it freely - that I had never considered that he was advocating the use of force to effect the separation of Quebec from Canada.
But I submit to you, and I ask you to agree with me, hopefully, that there can be many actions taken by an individual in the armed forces who transfers from one force to the other. He carries with him a tremendous amount of information, much of it confidential, that would be useful to the gaining state and deleterious to the losing state. There are many ways in which the transfer of loyalty could be damaging to Canada and beneficial to Quebec at Canada's expense. Would you care to comment on that? Then I have one last question.
Mr. McWhinney: Colonel, I think you and I have both worn the Queen's - in my case, the King's - commission.
Mr. Frazer: Yes.
Mr. McWhinney: And I suppose we have an extra interest in cases of this sort that have arisen.
However, I've given a lifetime to legal issues and I think you have to apply the rule of law impartially and generally to every case that arises. Therefore, I tell you from my legal background that I couldn't really recommend proceeding with this case because of the nature of the conditions under which it arose. It seems to me it is coloured by the origin. And that's no reflection on Mr. Hart's good faith or his integrity and no reflection on the integrity of the questioners from your party. But it seems to me it was flawed from the beginning, and in deference to the rights of Mr. Jacob, we have to proceed with it on the basis I suggested. I do so out of respect for the principle of the rule of law.
.1215
I have made no implications in my responses to Mr. Speaker or to Mr. Strahl on the motive with which this was raised. I respect the attitudes of all members of the party. I think it is the right of every member to raise an issue. It's not an issue of ridiculing a member for raising an issue and asking for a ruling by the Speaker and by this committee.
I'd have to advise that the case, it seems to me, is coloured by the origins.
Mr. Frazer: Dr. McWhinney, the privileges a parliamentarian enjoys are somewhat in excess of those of other people in the House. I submit to you that also his responsibilities are somewhat more than those of other Canadians in some regards. For instance, in the House we are precluded from using language that would be quite acceptable and would create no fuss outside the House.
A communiqué bearing the headline of the Office of the Leader of the Official Opposition that is headed "A sovereign Québec will have need of all Quebecers now serving in the Canadian Armed Forces"... Do you not think this is a questionable communiqué to be issued on official stationery by a member of Parliament to a group of individuals who have sworn their allegiance to another country?
Mr. McWhinney: I cited the case of the Honourable Edward Ward, the Australian case.
I think it is a case where, perhaps in the campaign rhetoric of a referendum, the member went beyond where I would advise prudently to go. I looked at the situation again, and I would say in a case like that, submit it to the ordinary courts of the land. It is wrong that parliamentarians be entitled to special privileges beyond those of other people. If there's sedition there, take it to the courts.
Don't allow the defence of parliamentary privilege, which, by the way, used to be raised successfully. They said they were doing this as parliamentarians and they were immune from prosecution.
Submit it to the courts, and if the courts say there's a case and they're convicted, they're convicted. They go to jail. They can't plead parliamentary immunity or parliamentary privileges. But if the civil courts dispose of it, that's the end of the matter.
As I understand, three courts have looked at it. I assume three crown prosecutors have looked at it. The respect you and I have for the rule of law would suggest that in this case we accept the decision of a civil authority within Parliament and matters limited to Parliament itself. But if the suggestion here - and from the origins I think it was the suggestion - is it was an attempt to subvert the government and to convert young -
The Chairman: Thank you. We're out of time.
I did say we were going to try to conclude at 12 o'clock. I promised Dr. McWhinney that I'd have him out of here by no later than 12:15, and I've kept him beyond that.
Dr. Pagtakhan, you may have a very short last question.
Mr. Pagtakhan: Mr. McWhinney, did you find in the communiqué any breach of privilege, contempt of the House or inappropriate action?
Mr. McWhinney: No. I found a prima facie case that I would have referred to the civil authorities for the decision to prosecute and then the decision of the courts. This process has been taken, followed and exhausted. As I said in answer to Mr. Langlois, in my view the matter is closed for Parliament as a result of the decision of the civil courts.
Mr. Pagtakhan: Thank you.
The Chairman: Thank you, Dr. Pagtakhan.
Colleagues, on your behalf I'd like to thank Dr. McWhinney for his point of view and for sharing with us his expertise.
We're grateful to you for that, sir.
As you know, it's the general agreement that on Tuesday at 11 o'clock we'll be hearing from Joe Maingot. At the end of that committee hearing we'll dispose of the other issues that our colleague, Mr. Speaker, raised in terms of future witnesses. Is that the general predisposition of this committee?
Some hon. members: Agreed.
The Chairman: Okay.
Yes, Mr. Langlois?
[Translation]
Mr. Langlois: It's a question I've already stood three times.
[English]
The Chairman: Right. There was a motion from the last -
[Translation]
Mr. Boudria: Could it be tabled and considered at another meeting?
Mr. Langlois: Mr. Boudria, I would like to have it done by Tuesday at the latest because the deadline is May 31.
.1220
There will be very little time for us to make a decision. Since the motion deals particularly with the creation of a subcommittee to deal with members' objections, it may be necessary to sit during the week of recess. Personally I would have no objection.
[English]
The Chairman: Is there agreement to table this matter until Tuesday?
[Translation]
Mr. Langlois: It should be noted that this is on the table for the third time.
[English]
The Chairman: Yes, I realize it's the third time on the table.
Are we agreed?
Mr. Boudria: Agreed.
[Translation]
Mr. Langlois: Thank you.
[English]
The Chairman: We're adjourned until Tuesday morning.