EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, May 16, 1996

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[English]

The Chairman: Order, please. Good morning, colleagues.

As previously agreed, today I'm pleased to welcome Joe Maingot to the other end of the table. He is going to give us a brief overview of the issues involved in our order of reference from the House of Commons regarding the communiqué of the member from Charlesbourg released on October 26, 1995, with reference to the members of the Canadian Armed Forces.

As members are aware, Mr. Maingot has been retained by the committee to advise us with regard to this matter. Mr. Maingot was the law clerk and parliamentary counsel for the House of Commons from 1970 to 1982, and he was a commissioner for the Law Reform Commission of Canada from 1982 to 1989. He is the author of Parliamentary Privilege in Canada, Canada's basic textbook on the subject.

I now invite Mr. Maingot to make some general comments before opening this up to questions.

Welcome, Mr. Maingot.

[Translation]

Mr. Joseph Maingot (consultant): Thank you very much, Mr. Chairman. You have already heard the remarks by the House's general counsel and the interesting remarks by Mr. McWhinney. For the moment, I would simply like to give you a general overview since you already have a great many facts before you.

Parliamentary privilege, which is an important part of the law of Parliament, is part of the general and public law of Canada.

[English]

Parliamentary privilege is really an indispensable immunity the law provides to members of Parliament and to members of the legislative assemblies in order for them to do their parliamentary work. It's also the immunity that the law provides for all those who take part in the parliamentary proceedings. It's also the power and authority that the law provides to the assemblies and to Houses of Parliament to enforce their orders and to protect the immunity of members against third parties.

In this case, you've heard the evidence of the person who made the complaint and of the person who is the subject matter of it. You're aware that your order of reference is the order of reference that came from the House. That's what you look at and you interpret in your own fashion.

It seems clear from what you've heard that what is involved here is not the traditional privileges in the sense of freedom of speech or the sense of freedom of access to the House. A member hasn't been affected by being compelled to attend as a member of a jury or anything like that, and it also doesn't really involve anything with respect to misconduct in the House or in a committee. It doesn't have anything to do with disobedience to any orders of the House.

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It really involves that other aspect of parliamentary privilege, the right of the House of Commons to determine whether someone is in contempt of the House. In other words, to put it in the vernacular, you have to ask if this is the kind of activity that an hon. member should not be engaged in because it undermines or tends to undermine respect for an institution of Parliament, the House of Commons.

I think I'll leave it at that. I'll be open to questions, and at that point perhaps I could elaborate if necessary, depending on the questions asked.

The Chairman: Thank you, Mr. Maingot.

We'll begin our usual practice, and I want to remind you, colleagues, there'll be a ten-minute limit that I will attempt to enforce pretty rigidly so every member will get an opportunity to question Mr. Maingot.

Mr. Bellehumeur, we'll begin with the Bloc, please.

[Translation]

Mr. Bellehumeur (Berthier - Montcalm): Mr. Maingot, I thank you for coming to our rescue and for helping us in this study. You have heard the testimony of Mr. Hart, Dr. Jacob,Mr. McWhinney and Parliament's legal experts. I'm going to put to you again the questions I put to the others and to ask you what your position is since we hired you as an expert to advise us.

One of the questions that I put to Mr. McWhinney, for example, was how they proceeded throughout the process in order to put Dr. Jean-Marc Jacob's case before Parliament. It must be stated that the member, Mr. Jim Hart, made it a question of privilege. To use the Speaker's own words, a specific charge has to be made.

This very specific charge is found in the Debates of March 12, 1996, at page 557, whereMr. Jim Hart stated:

In the opinion of the House is the hon. member for Charlesbourg guilty of sedition?

You also heard the Reform members say on three occasions, I believe, that there was no question of sedition, no question of a call to arms, no question of treason, etc.

So there's a kind of contradiction. Once the person who raised the question of privilege said there was no specific charge to be made, are we nevertheless required to continue considering this matter?

Mr. Maingot: That's an interesting question. Perhaps I should being by saying that, whatever events occurred in the House, you must move ahead and look at the order of reference that you have before you, which must guide you.

[English]

With respect to the question of the charge, I guess it was with respect to dealing with the conduct of a member. It's come through in different forms. For example, the most recent one was the member - I think it was Mr. Waddell - who misused the mace. That had to do with conduct. There wasn't a charge because it was evident before you, so he was reprimanded by the House. This was two or three years ago.

You've had matters respecting the conduct of a member that members themselves have raised. In 1970 the member for the Yukon was concerned that his negotiations with the government at that particular time for lease of land might have affected his independence as a member. He himself raised that and brought it before the House. It went to committee and the committee said that it was a good question of privilege and that the government should take into account that a member should be like any other person in Canada and should be able to lease land from the government.

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In 1980 the present foreign minister was concerned that he had an interest in a hotel that was receiving grants from the government. So this again is the conduct of a member. Is that the kind of conduct...? He was concerned about his conduct, so he himself raised it. The committee dealt with it and they were satisfied that he was not involved, that the small interest he had in the hotel was not such that he would be aware of what was taking place.

Then in 1962 it was raised that if the conduct of a member... It was related to the conduct of the Speaker. A member had suggested outside the House to the newspapers that the Speaker was biased in a certain respect. So another member from another party raised it in the House, and it was agreed that it would be sent to the committee - nothing further. There wasn't any charge.

Usually - well, not usually, because nothing is too usual in the House sometimes...

There were two occasions when the charge procedure was done in what was supposed to be the traditional way. You lay out a charge. It's got to be set out in the material before the House, but there definitely has to be a charge.

In 1956, that infamous Black Friday, his friendly opposition party laid a charge against the Speaker, and that was dealt with by the House in a debate and was voted on.

Then in 1959 was that case as Mr. Speaker -

[Translation]

Mr. Bellehumeur: Mr. Maingot, perhaps I didn't ask my question correctly. You didn't answer it at all. Pardon me for interrupting you, but my question is very simple. There's an entire procedure for raising a matter on the floor of the House and referring that matter to a committee. The committee is considering Dr. Jacob's communiqué.

The starting point, the high point, is the charge. The Speaker of the House said there was a specific and serious charge. I'm not the one who is saying it. The Reform members even said there was no question of sedition.

So, at the outset, the entire question of sedition must be dropped from the moment the question of privilege is raised. If I consider the Speaker's decision, it seems that he did not accept it. That's an assumption. So my question to you is whether, once it has been proved that there is no question of privilege or sedition, there is still any ground for action.

Are there grounds to continue hearing witnesses or to conduct a more thorough study? By the very admission of those who brought it, the starting point, which was the specific charge of sedition, no longer exists. Is that not sufficient ground to decide not to go any further in order to save public funds? I would like to hear you on that point, Mr. Maingot.

Mr. Maingot: I would simply like to say that it was the House that collectively made the decision to refer to you what you have before you. It was a collective decision.

Mr. Bellehumeur: There is no longer any ground for the question of privilege. If we had told the Speaker that Dr. Jacob had now been charged with sedition and that we were perhaps going to withdraw his remarks a little later, do you think the Speaker would have received the question of privilege in the same way?

Mr. Maingot: I can't tell you what went on in the Speaker's mind, but I'm telling you that you have before you the result of a collective decision, which is the reference. What happened before that is another matter.

Mr. Bellehumeur: If I understand correctly, we can accuse our colleagues in the House of virtually any wrong, saying that a particular member is a thief and taking him before a committee, and the accuser can say before the committee: "Pardon me, my words were stronger than my thoughts. I didn't want to accuse my colleague. That's not true... It was in the context... He voted for a budget that took money out of taxpayers' pockets. That's what I meant. He's a thief in that sense, etc." So there would be no problem!

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Mr. Maingot: There are two ways of answering you.

[English]

First of all, it has been the practice since 1959. In the course of his ruling in the Pallett case, the Speaker said that the procedure has been established that you can make a charge against a member in the House, but it has to be implicit in the documents before the House that there has to be a charge.

Secondly, and very importantly, the freedom of speech you have in the House is a freedom that the Supreme Court of Canada set out over 100 years ago. Let me just quote what the Supreme Court of Canada said:

...one of the first and greatest of its privileges is free speech and one of the advantages of legislative bodies is the right of exposing and denouncing abuses by means of free speech.

That was in the Supreme Court of Canada. That is part of the practice with respect to privileges of the House of Commons. That's now cited in Beauchesne's fourth edition, page 48. In other words, the making by one member of an unfounded charge that has been inquired into by the House does not constitute a breach of privilege.

The Chairman: I'll have to jump in here because this first round for the Bloc is concluded. I'll now turn to our colleagues from the Reform.

Mr. Strahl (Fraser Valley East): Thank you for coming, of course. It's good to browse through your book, and I have a few questions for you.

The Bloc keeps bringing up this idea that the Reform Party is backing off. What the Reform Party is saying, or what we've been trying to say, is that in this committee we can only deal with what Parliament has given us to deal with. Is that not true? We can only deal with the terms of reference from Parliament, and the terms of reference were to investigate this communiqué to see if there was contempt of Parliament.

We have heard from Diane Davidson, our chief legal counsel, that contempt of Parliament includes any act that has a tendency to directly or indirectly bring the House into disgrace, shame or ridicule. Is that what we're dealing with here?

Mr. Maingot: Actually, you're dealing with the order of reference. Whatever the order of reference says, that's what you're dealing with.

Mr. Strahl: So that's what contempt is. In other words, it is not necessary to take Mr. Jacob, or any member of Parliament, to civil or criminal court and convict him of an activity in order to find him in contempt of Parliament. He or any other member could be found in contempt of Parliament without having a conviction in a civil or criminal court. Is that true?

Mr. Maingot: Yes, that's correct.

To give an example of that, this is not quite the same, but interestingly, on December 7, 1993, in the Quebec National Assembly a question of privilege was brought about. I think it concerned people who were storming a particular member's riding office. That was raised in the House and then it was brought to the attention of the Speaker that those persons were being charged under the Criminal Code, so he said we'll hold off on the question of privilege.

In the Mackasey case, the committee stopped their work to wait for the results of the criminal proceedings. That's quite different because Mr. Mackasey himself raised the question of privilege.

Mr. Strahl: In November, after this communiqué went out, the chief government whip said, ``I think this communiqué is dangerously close to inciting mutiny''. It may have been dangerously close; it may have been inciting mutiny. Who knows what the whip meant by that?

In other words, if you can say that something is dangerously close to something, if it's basically bringing disgrace, shame or ridicule upon the House of Commons, whether it's dangerously close to inciting mutiny, whether it's a form of sedition, or whatever the case might be, there doesn't necessarily have to be a conviction in court in order for Parliament to find it in contempt of Parliament.

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We do this all the time, don't we? In the House of Commons, when somebody says ``I think a certain member is lying'', that may not be a criminal case but it's certainly immediately brought short by the Speaker and he says ``Either withdraw that or you're in contempt of Parliament''.

All I'm trying to establish is that we're totally within our rights here as parliamentarians to find someone in contempt of Parliament without having to go to a civil or criminal court to prove it.

Mr. Maingot: Mr. Strahl, what you're saying is really a basic matter of privilege that was established nearly 200 years ago. The House of Commons in the U.K., and similarly here, has the power to hold someone in contempt without having to go through the courts, also because your standard can be higher or less than in the criminal or civil courts. It's up to you to establish the standard and then impose it on the members.

Mr. Strahl: Then give me some idea... Say this committee, in its discussions and with its witnesses, decides we want to find a member in contempt. What range of things can we do? Can this committee recommend to Parliament everything from expulsion from Parliament at one extreme to...what at the other? Is anything in between fair game?

Mr. Maingot: I'd be happy to deal with that. But maybe on what constitutes contempt I could make an analogy. It depends on what kind of conduct you're dealing with here. The analogy may help.

Suppose you have a member of the House of Commons and he has a house in the country, in a rural area, on top of a hill, with no forest around. There is no insurance on that house and there's no mortgage, and he burns the house down. You'd say that's a silly thing to do. It's not wise. It's insensitive.

Okay. Now the same member has a house in an urban area. Again he doesn't have any mortgage on it and he doesn't have the insurance and he burns it down. Well, he's reckless, because of all the houses around him.

Thirdly, we have the same member with that house. He has fire insurance and he has a mortgage on it. He burns it down. That's fraud.

So there are different degrees of activity. It's the kinds of different degrees I think the House of Commons would look at. They would look at it from the point of view of what this person did: how does it offend our sensibilities.

Mr. Strahl: Right.

Mr. Maingot: So about penalty, it runs the gamut, depending on how you find the conduct. On the other hand, you could say it's close to the mark but not quite.

Mr. Strahl: If this committee found there was contempt of Parliament of whatever degree, anything from ``I wish you wouldn't do that again'' to ``we're really ticked off'', and somewhere in between some action was decided on, given the terms of reference, can the House recommend action? In other words, can they say ``I wish you wouldn't do that, I wish you hadn't done that, and furthermore, this House would like to instruct, or this committee would like to recommend to the House to instruct, the armed forces to prepare an action plan to deal with this during the next referendum''? Or can we strike terms of reference of what would and wouldn't be allowed in another referendum case, or the like? Do we have that power?

Mr. Maingot: About power, as I say, you are guided by your terms of reference and how you identify them. But in the past committees of privilege have, in those two cases of 1980 and 1970, because of the difficulties they put the member in, made certain recommendations. In another case, that of Mr. Roberts in 1968, they made a recommendation on how to go about resolving it.

So in this particular case it's how you interpret your terms of reference. When it comes to conduct, you may be dealing with a little piece of conduct. It may be better to have a committee dealing with conduct in general. It's really up to you, because past committees have made that a condition.

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Mr. Strahl: I just want to make it clear, then, that we don't have to have a criminal or civil court conviction in order to proceed with a contempt of Parliament. A contempt of Parliament is anything that, in the opinion of the House, brings ridicule, shame or scorn onto Parliament. The committee is free to recommend any sort of sanction against that member if it finds that contempt has taken place. It can also make further recommendations to the House, dealing with things such as future incidents that may occur in future referenda, or future conduct on communication between members and the military. We're free to do all of that; it's all within the terms of reference of this committee.

Mr. Maingot: You certainly have great freedoms. I just want to perhaps point out that the committee can be guided by whether or not the proceedings took place in criminal court and what happened to them, bearing in mind that maybe the criminal court didn't have all the information that you have before you. It may be that if a member was charged and he got off on a technicality - in other words, not technically, legally, but because other evidence suggests... You could take that into account also.

Mr. Strahl: Okay.

Do I have more time?

The Chairman: You have a last, short question if you want it.

Mr. Strahl: You wrote in your book that there is no closed list of classes of offences punishable as contempt of Parliament. If that's true, if there's no closed list, it means it is an expanding list or an evolving list. This committee can therefore add to the list or can recommend to Parliament another classification or another thing that brings about contempt, and we're free to suggest that because this is an evolving list. So this committee could make recommendations on what should be, in the future, a contempt of Parliament, even if it isn't now.

Mr. Maingot: Yes, but it might be difficult to define all areas of contempt. The general definition you have before you covers an awful lot of ground. When you say that new forms of contempt can take place, it's just like going from the horse to the automobile, or there weren't any faxes ten years ago. So all these factors would be taken into account when considering how contempt can be defined.

Mr. Strahl: Certainly, and there's a list of contempts perhaps that did not consider the idea that referenda dividing the armed forces, etc., may have occurred, and we may want to address that. If we want to, we certainly can.

Mr. Maingot: You can make recommendations if that is the view of the committee, if you feel that's part of your terms of reference.

Mr. Strahl: Thank you.

The Chairman: Thank you, Mr. Strahl.

We'll now move to Mr. Milliken of the Liberals, please.

Mr. Milliken (Kingston and the Islands): Thank you, Mr. Chairman.

Sir, in answer to the questions that you have already been asked today, and in your testimony, you indicated that the committee had received from the House its reference in the form of a motion that was moved in the House and sent to the committee. However, the motion was based on a matter raised by Mr. Hart in his initial comments in the House, so those initial comments were also referred to the committee as part of the motion, since that was the question of privilege that was raised.

In his comments in the House, Mr. Hart made statements that indicated that either he hadn't read the communiqué in question, or he misunderstood it and said the offence of sedition was made out. This therefore constitutes part of the reference to the committee.

Last week, as an expert witness requested by the opposition, and not by the government,Dr. McWhinney indicated in his testimony that, in his view, the charge that had been brought really was one of sedition. In light of the fact that there was no criminal case for sedition made out on the evidence of Mr. Hart or anybody else, and in view of the fact that the courts had an opportunity to examine the matter - or at least the Crown had - and had obviously decided not to proceed with such a charge for lack of evidence, the charge itself was tainted with one of sedition and ought not to be proceeded with by the committee, because if there was a criminal element to this, it should have been disposed of in the criminal courts and then dealt with by the House as a matter of discipline. If there was not, there was then insufficient evidence, in his view, to warrant the committee continuing to investigate a charge of sedition. Since that is what had been referred to us - although it was couched as a privilege matter - it ought not to be proceeded with, because in effect it put the member in question in double jeopardy.

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Do you agree with that submission by Dr. McWhinney?

Mr. Maingot: Dr. McWhinney's remarks were very interesting. I was very interested in what he said, but I'm particularly interested in what you said, Mr. Milliken, with respect to what your terms of reference are.

It seems to me you're bringing in something new to suggest that the terms of reference - that is, the renvoi - you have before your committee are the remarks that preceded the actual motion that was adopted. With great respect, I suggest that your terms of reference are that order of the House.

I know of only one case... It was an unusual case back in 1882, when the House of Commons actually agreed to submit all the evidence before a committee to a criminal court. I don't know whether they had the power to do that, but they did it.

So, with great respect, I disagree with you. I feel the terms of reference are that motion that was adopted by the House.

With respect to what Dr. McWhinney said, I can understand his position, in a sense where he's coming from. He was concerned that the House was trying to assert a criminal jurisdiction. Well, that's been established, as you know, by that case back in 1811, Burdett v. Abbot. There the court said that it's clear that the House of Commons has never assumed a criminal jurisdiction.

Perhaps that's what Mr. McWhinney was concerned about by getting involved in that and the courts having, apparently on three occasions with three different justices of the peace in Canada, said that from what they looked at there was no case to proceed.

Mr. Milliken: So do you agree with Dr. McWhinney's submission?

Mr. Maingot: I don't think I'm here to agree or disagree with Dr. McWhinney. I would agree with the fact that the House of Commons does not have any criminal jurisdiction. I certainly agree with him on that. That's absolutely so.

Nevertheless, the House can be guided by whatever type of conduct it feels it should expect of a member of the House of Commons, and that can be the conduct that you find in technical evidence in a court or not.

Mr. Milliken: But would you agree that the motion that the House sent to us, which referred a matter to us, referred the matter of the communiqué, which was raised by the member, Mr. Hart, in the House and formed the basis on which the motion was framed? He, after all, moved the initial motion. Is that not correct?

Mr. Maingot: Oh yes. I also realize that members take into account considerations of public policy. But, with great respect, I think in terms of the collective decision of the House... That's what I have to deal with.

Mr. Milliken: Yes. Well, we all do, but the fact is that there were certain wild-eyed statements made by Mr. Hart that led to this motion - allegations, for example, of criminal conduct that led to this motion.

I believe there were allegations of criminal conduct by Mr. Hart. Is that not correct?

Mr. Maingot: I don't think I should comment.

Mr. Milliken: You didn't read the -

Mr. Maingot: I forget what I read in the debates.

Mr. Milliken: Oh, you've forgotten that. All right.

My second question is this. A member makes this kind of allegation and comes to the committee and says, ``Here's the communiqué. In my view it constitutes...''. Once he got here, he changed his tune; he said it was conduct that came close to sedition, I think, initially, and he may have backed off from even that position now. He said, ``Here are some press releases that indicate the media think that it was seditious or urging mutiny, and here are some other statements from other people along the same lines. Now I want the committee to go and investigate the matter and find evidence, because I don't have any more.''

Is this normal practice in hearings of this kind? In your experience and in the precedents you've cited already in answer to Mr. Bellehumeur's question, is it normal for a person laying a charge, as Mr. Hart did, to come before a committee and dump a few press clippings and say, ``Here. Find evidence, please. This is the best I can do.''

Mr. Maingot: As you know, Mr. Milliken -

Mr. Frazer (Saanich - Gulf Islands): Mr. Chairman, I have a point of order.

Mr. Milliken: I didn't think they'd like this question.

The Chairman: I guess we'll take it.

Do you have a point of order?

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Mr. Frazer: Mr. Chairman, since we seem to be dwelling on the statement by Mr. Hart in the House, may I read to the committee the actual motion he put forward, so we have it clear before us?

The Chairman: I think members have the -

Mr. Frazer: No, Mr. Milliken is jumping around, saying he thinks this is what he said. I will read into the record, if you wish, the actual motion Mr. Hart put forward. Then Mr. Maingot will know exactly what we're dealing with.

Mr. Milliken: We have it in the record.

The Chairman: The point of order I think you're raising sounds more like debate to me.

Mr. Maingot, do you have a copy of this? Have you seen it?

Mr. Maingot: Of what was said in the House?

The Chairman: No, of the motion itself.

Mr. Frazer, if you want to provide it...

Mr. Milliken: That's what my question was about. If the member brings in a bunch of press releases and dumps them on the committee and says please go and find evidence, I'm asking the witness if that is normal. It has nothing to do with what Mr. Hart said in the House. That's passé. We're off that question.

The Chairman: On this point of order, Mr. Frazer, I think your offer of help has been declined respectfully and I'll allow Mr. Milliken to continue to pursue an answer with Mr. Maingot.

Mr. Frazer: Thank you, Mr. Chairman. I missed the respect, but I guess it was there.

The Chairman: Mr. Maingot, do you want to answer the question, please?

Mr. Maingot: Yes, I'll do my best, Mr. Chairman.

Normally when it comes to matters of privilege the member in the House says, well, now, there's a question of privilege here and these are the facts I base it on. The Speaker looks at that and he says, well, on the face of it, is it really a question of privilege? If there's any doubt, he gives the member the benefit of the doubt and it goes to committee. It's at that point, when more evidence, more facts, are brought forward, that the committee can decide whether what appeared on its face to be a question of privilege is or not. They have that option.

On the other hand, even in the House members can disagree with the Speaker and vote not to send it to committee. That's been done in the past.

So to answer your question specifically, Mr. Milliken, all sorts of things are brought before committee. The rules of evidence don't apply, so evidence comes in all forms.

Mr. Milliken: But in this case, as you know, the hon. member, Mr. Hart, made statements that these words were seditious. Is it normal in a case of this kind, where the charge seems to be quite specific, simply to table the documents and say, I think this is seditious and so do all these journalists who wrote about it, therefore I want the committee to call other people who might think so and give us their opinion?

Mr. Maingot: I suppose you would look at it as a sort of hybrid case in the House.

Mr. Milliken: In what way?

Mr. Maingot: I gave you two examples from 1956 and 1959 where the charge form was pursued. In other instances it has not been. In this case there was a sort of mélange, a hybrid.

Mr. Milliken: By ``hybrid'' you mean a sort of charge was made in the statement but the motion doesn't state a charge. Is that what you mean?

Mr. Maingot: If there's any charge, it's in that motion. As I say, I think earlier Mr. Strahl was talking about one member calling another a liar in the House. Well, if you don't withdraw, it's unparliamentary. If you don't withdraw, out you go. But you can still say it if it's composed in a charge.

That's the distinction. But it has to be implicit in the documentation before the Speaker before he would say, I have something here in my hands and it can go to committee.

Mr. Milliken: So you are saying this was a sort of charge, because we have the communiqué in hand and it was referred to the committee.

Mr. Maingot: I'm letting the committee decide what it is. I'm saying collectively you look at that order of reference. That's your renvoi, that's your order of reference, that's what you have before you. You're talking about considerations of public policy, which I have nothing to do with.

Mr. Milliken: To go back to my question, is it normal with such a motion as this for the committee in effect to go on a witch hunt, looking for evidence to support the claim, when the person who brought the matter up and made the charge - and I don't want to exaggerate the term - had no evidence, or very limited evidence, to back up his statement? Based on the precedents, is it normal for the committee to start casting its net far and wide to bring people in to see if some evidence exists to support the charge that's been brought to the committee?

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Mr. Maingot: Well, nothing ventured, nothing gained, but it's still up to the committee to decide what they're going to do.

Mr. Milliken: In the precedents, is that what they normally do?

Mr. Maingot: If you look at the precedents, some may be interpreted one way or another, but usually they stick to their order of reference. I wasn't here for the Mackasey case, but they brought in a number of witnesses all related to that particular matter. They weren't extraneous people. Usually they're fairly relevant to the order of reference before them.

Mr. Milliken: So they had some direct involvement in the proceedings.

Mr. Maingot: As I said, usually the people who are invited to attend are relevant to the order of reference, in the estimation of the committee. If you look at it, usually it's fairly relevant.

Mr. Milliken: I have one last question.

In 1924, when a charge was laid against a member by another member, the committee that investigated the matter found that the member who had been charged was in fact not guilty of any offence of a breach of privilege of the House or anything of that sort, and of course the member who laid the charge promptly resigned his seat. If the committee in this case found that there was in fact no evidence of seditious acts or breach of privilege of the House, would you expect that Mr. Hart would resign his seat in accordance with that precedent?

Mr. Maingot: The member in 1924 was Guss Porter. He resigned and it was defeated.

Mr. Milliken: I wasn't so worried about defeat or victory.

Mr. Maingot: The point I'm making is that back in the 1970s the Speaker said there was nothing to say a member had to resign after bringing in something unfounded. The reason is that Beauchesne has spelled that out based on the 1878 Supreme Court of Canada decision:

The making by one member of an unfounded charge which has been inquired into by the house does not constitute a breach of privilege;

That's in Beauchesne's fourth edition, page 48.

The reason you have freedom of speech in a legislative assembly or in a house of Parliament is that the Supreme Court of Canada said it's our right to expose and denounce views by means of free speech. They may be wrong.

That case in 1878 was in Nova Scotia. There a member had accused another member, who was a minister of the Crown, of having altered registry office documents. The committee said that he did not fraudulently deal with documents.

Mr. Milliken: What year was that?

Mr. Maingot: It was an 1878 Supreme Court of Canada decision.

Mr. Milliken: Thank you.

The Chairman: I'm trying to impose the ten-minute rule here. Thank you, Mr. Milliken.

A clarification has arisen that I'd like you to deal with, because it was part of a larger discussion here, Mr. Maingot. I think the specifics of what Mr. Milliken was trying to say were that as a committee we're pretty limited about how far we're going to cast this net, in terms of getting witnesses and adducing additional evidence. The terms of reference should be directly related to the matter at hand. I thought that's what Mr. Milliken was trying to elicit a response from you on.

Mr. Maingot: Well, I can't disagree with that. The order of reference is your term of reference and it has to be relevant to that.

The Chairman: You aren't suggesting that we go off to do something else?

Mr. Maingot: Heavens, no. As I said, it's up to your collective common sense.

The Chairman: Thank you.

Mr. Langlois, please.

[Translation]

Mr. Langlois (Bellechasse): Mr. Maingot, I'm going to go into the logic of your viewpoint. I don't necessarily share it, but I'm going to try to put myself in the same framework as you so that we can discuss the matter.

On March 12, in speaking of Dr. Jacob, Mr. Hart said in the House, and this is on page 557 of Hansard:

The question to be answered is whether the member is guilty of offending Parliament. In the opinion of the House, is the hon. member for Charlesbourg guilty of sedition?

It ends there. In the ensuing debate, the Speaker took the matter under advisement and then said that the matter was so serious that the prima facie evidence was that, yes, privileges had been violated. But it was not really known which privileges had been violated. Was is Dr. Jacob's privileges, because a criminal charge had been made against him on the floor of the House, or the privileges of the House, that had been violated by the communiqué?

.1155

But, no matter, the Speaker took the matter under advisement and rendered his decision.

The member for Fundy - Royal countered with an amendment, which was adopted by the House and which today is the order of reference requesting that we consider the matter of the communiqué. We are therefore at the very least required by the order of reference, which is in fact the motion by Mr. Zed, the member for Fundy - Royal, to consider the matter of the communiqué.

We therefore have the communiqué in hand. Since you have been present since the start, you have heard all the evidence. Mr. Hart came, specific questions were asked about the communiqué, and he was required to apologize, saying that he had been mistaken and that the remarks had not been directed at Francophone military personnel, but at Quebec military personnel. Second, when my colleague, Mr. Bellehumeur, the member for Berthier - Montcalm, asked him where desertion was mentioned in the communiqué, he said that it wasn't mentioned anywhere. When Mr. Bellehumeur asked him where a call to arms was mentioned in the communiqué, Mr. Hart said that that didn't appear anywhere either and, lastly, said that one mustn't consider the communiqué itself, but rather the spirit of the communiqué.

However, the order of reference has not asked us to consider the spirit of the communiqué, but the communiqué itself. The accuser himself came and told us that there was nothing in the communiqué, that there was only a spirit emanating from our ancestors who stand outisde the communiqué and that it was precisely that that we had to consider. He tabled press clippings saying that he had nothing to say about the communiqué and that it was Dr. Jacob's thinking that he clearly did not share.

The witness offered no evidence. So there was no longer any case to put before the committee. Based on that, if we were a court of law, but the Chairman clearly established at the outset that we were not, there would certainly be a motion for non-suit in order to stop the process without even hearing Dr. Jacob, since the charge no longer stands.

Mr. Hart said that there is no longer any question of sedition, that there was no longer any of that, that there was no longer even any communiqué and that the only question was the spirit of the communiqué.

We have no mandate to consider the spirit of the communiqué, Mr. Maingot, and I believe we are in the area of political debate. Whether Mr. Hart likes or doesn't like Dr. Jacob's communiqué - he clearly doesn't like it - is a matter for debate.

Mrs. Parrish, Mr. Loney, Dr. Pagtakhan, Mr. Harb and their colleagues are in agreement on the communiqué, but I don't think this is at the point where it will prevent free debate in the Canadian way of debating matters.

Fundamentally, my question will be as follows: in the absence of references to the communiqué by the principal accuser, whereas the issue is no longer the communiqué itself, but rather the spirit of the communiqué, how can we consider that Dr. Jacob was guilty of contempt of Parliament through the spirit of the communiqué, when Dr. Jacob showed when he testified that he was acting during a referendum campaign, before a referendum held in accordance with the statutes of the National Assembly of Quebec and that his purpose was to inform military personnel? Like me, you heard the evidence that there would be a Quebec army in a future sovereign Quebec and that we would need soldiers. Dr. Jacob proved that he had never addressed the question of the oath of allegiance or that he had asked them to break it. We were in a referendum campaign.

[English]

The Chairman: I know you want to get to a question, because your time is up.

[Translation]

Mr. Langlois: Has it already been 10 minutes?

[English]

The Chairman: It's five minutes in this round, so please put a question in order to allowMr. Maingot to answer. I think you've put one.

[Translation]

Mr. Langlois: In considering the spirit of the communiqué, since that's what is left us, wouldn't we be going beyond the order of reference? The order of reference asked us to consider the communiqué, but it is just fallen by the wayside and we realize that this is a democratic debate. Ultimately, aren't we being asked by the Reform position to create ex post facto, after the fact, an offence against parliamentary privilege that did not exist at the time the communiqué was issued?

Was Dr. Jacob caught in a trap? He used his rights as a parliamentarian and his rights as a citizen to conduct a democratic campaign that he is now being reproached for after the fact. Wasn't he told that his position was not right and that he had to answer for it before his peers? I'm saying that it is not before his peers that he should answer for it, but rather before his electors, as do all those here who have political programs to defend.

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Mr. Maingot: Mr. Langlois, I believe that the question you're asking is essentially whether the committee can take into consideration the spirit of the communiqué. Is that correct?

In my view, in the questions asked and the answers given, we are talking about the spirit of the communiqué. We're not simply talking about the facts. We're talking about the spirit because we're asking questions. If I remember correctly, Dr. Jacob was asked what his intention was. Was it to affect loyalty? There were questions such as that and they came from both sides. In my view, the committee is entitled to consider not only the facts, but also the spirit of this communiqué. That's how you can interpret the order of reference.

As to what occurred in the House, that is another matter. You have the order of reference before you. Everything must be taken into consideration: the reference and the questions that were asked here.

Mr. Langlois: May I continue? No?

[English]

The Chairman: You can have one last one, but would you please just put a question? I'll ask the witness to answer it, but we have to respect members' time here.

[Translation]

Mr. Langlois: You are telling me that there were questions concerning the communiqué as a whole, but you followed all the evidence and I would like to ask you whether, as an expert, with the knowledge you have of parliamentary privilege, Mr. Maingot, you see a violation of parliamentary privilege in what you have heard here since you have been sitting on this committee.

Mr. Maingot: You recognize that this is not my job, and that is why I drew the analogy with fire. I said it was necessary to consider what had occurred and to analyze the situation in order to decide how serious the matter was. I therefore suggest you address the matter in this way. It is up to you, not me, to decide whether a question of privilege is involved. My role is to inform you in your decision-making.

[English]

The Chairman: Thank you.

Next on our list is Mr. Frazer, please.

Mr. Frazer: Just for the record, Mr. Chairman, I would like to read into the record the operative words in the initial motion that was made by Mr. Hart:

That in the opinion of this House...[the communiqué] should be viewed as seditious and offensive to this House...

The communiqué said at one point:

The MP for Charlesbourg believes that to properly carry out its functions, Québec will have need of all Quebecers presently enlisted in the armed forces.

I realize and accept that we are not a court of law, but just to give you some of the definitions of ``seditious'' as they are related to the armed forces, paragraphs 62(1)(b) and (c) of the Criminal Code say:

62. Every one who wilfully

(b) publishes, edits, issues, circulates or distributes a writing that advises, counsels or urges insubordination, disloyalty, mutiny or refusal of duty by a member of a force, or

(c) advises, counsels, urges or in any manner causes insubordination, disloyalty, mutiny or refusal of duty by a member of a force,

Now, Mr. Bellehumeur has tried to narrow the view of ``sedition'' to the call to arms, the armed uprising. As you can see from this quotation, ``sedition'' covers a whole bunch of other, much lesser things as well. So I ask you, Mr. Maingot, in view of these three items, do you think it reasonable for this committee to consider whether or not it's appropriate for us to discuss and decide whether or not Mr. Jacob's communiqué could be viewed as seditious?

Mr. Maingot: I'll make an attempt to answer your question, Mr. Frazer.

As I say, the House of Commons can look at the conduct of an individual and if by chance it represents a breach of the criminal law, that's one thing. The House may agree with that. It may not be a breach of the criminal law; it may be something else. They may set a -

Mr. Frazer: We're not really talking about criminal law here, because we're not a court of law. What we're asking is whether or not this is appropriate behaviour for a member of Parliament. That's really what we're here to consider.

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Mr. Maingot: Exactly. You look at what was said in the communiqué and you decide whether - call it sedition or whatever you call it - it is the kind of conduct that makes him unworthy of being a member. That's really it. Is it contempt? In other words, by doing that, does it lower the reputation of the House? Does it make the House look ridiculous?

Mr. Frazer: Has this brought the House into some sort of ridicule or contempt? Is that correct?

Mr. Maingot: It's your role to look at what was said in there and to look at everything surrounding it.

Mr. Frazer: There's one thing I'd like to get clear. I'm going back to Dr. McWhinney's testimony at the last meeting of the committee. It was his opinion...or at least I drew from his testimony that action of this sort would almost have to be taken in civil or criminal court before the House could act on it. This does not really gibe with what you've said.

In your book, you were very clear: the courts cannot interfere with the internal proceedings of the House and its decisions about discipline are absolute and exclusive. Am I correct in understanding, therefore, that in your opinion there is no such thing as a judicially reviewable disciplinary action in Parliament?

Mr. Maingot: Let me put it this way, Mr. Frazer. Except for the internal proceedings, the courts may look at what's taking place in the House on parliamentary privilege where the rights of a third party involved in litigation are involved.

If, for example, a member is expelled, the courts would not look at that. They'd look at it and they'd see that, well, he's been expelled from the House - and that's the members' responsibility, that's one of their powers and one of their privileges. But if the member, when he was expelled, didn't want to leave and they forced him out, then by looking at the action of assault, at the civil litigation with respect to the assault, the courts would look again and say, ``Well, now, what legal right do they have to do that?'' That's when they will get involved, only when these rights are exercisable outside.

The right of being a member is not exercisable outside the House, so normally that would not be looked at. The question of the charter has come in now, but I still feel that would apply because that's another technical question.

Mr. Frazer: Again, Mr. McWhinney led us to a rather narrow view of what could constitute contempt, and I think he used the term ``in the rayon of Parliament''. In other words, it had to take place within the House itself. On the other hand, you have written, and if I may quote:

...whether committed by a member or by persons who are not members and whether or not the offence constituting the contempt was committed within the House or beyond its walls.

That implies a Member of Parliament is still responsible for his or her actions, whether it's in the House or out of the House. Is that correct?

Mr. Maingot: If a member is in jail for fraud outside the House, you're probably going to expel him. Contempt can take place inside or outside the House. I don't think Professor McWhinney was saying something to the contrary.

His concern was the criminal law, that the House of Commons shouldn't be involved in criminal law matters, that you should let the courts deal with it. I think he said that because three justices of the peace in Canada have already said, look, there's no criminal element here, let it be. So the House of Commons shouldn't be involved. I think that was his position.

Mr. Frazer: I have one last question. With regard to the committee and its actions now, are you in agreement, then, that it is right and proper and appropriate for this committee to be considering whether the...? In the terms of reference it says ``the matter of the communiqué''. Is it then within the purview of this committee to consider whether it was appropriate for the member for Charlesbourg to have sent this communiqué?

Mr. Maingot: That's the fact of elucidating, by the evidence on both sides. That's your job. You look at that and look at everything. You look at the whole picture now. Taking everything into account, was there something a member should not have done? Is it contempt, or is it something less than that?

Mr. Frazer: Thank you.

The Chairman: Dr. Pagtakhan, please.

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Mr. Pagtakhan (Winnipeg North): Thank you, Mr. Chairman.

Starting from the order of reference, Mr. Maingot, and then the order of reference as guided by the suggestion of the chair and adopted by the committee, three guidelines were considered. You are familiar with that. You have seen the communiqué. Therefore the committee must examine the content and, following the examination, must determine whether its publication constituted contempt of the House.

Is that a clear mandate to the committee, following this order of reference?

Mr. Maingot: Yes.

Mr. Pagtakhan: Have you examined the content of the communiqué itself?

Mr. Maingot: Yes.

Mr. Pagtakhan: Following that examination, do you find anything that in your considered opinion would constitute a breach of privilege or contempt of the House or inappropriate conduct?

Mr. Maingot: If I was a member of the House of Commons, I would deign to answer that. It may be ill-advised, it may be insensitive, it may be reckless, but whether it's beyond that and it's contempt is really not for me to say. My opinion is not worth anything to you. It's for you, ladies and gentlemen of the committee, to decide.

Mr. Pagtakhan: Without revealing your determination following the preceding question - and I can understand the situation you're in - do you think, from the evidence that the committee has heard, which evidence you have heard as well, without forming your determination, that the committee should be able now to form an opinion insofar as the examination of the content of the communiqué is concerned?

Mr. Maingot: You certainly have a lot to go on, by what was said by the witnesses. I think the committee could, on what has been heard and what has been said, come up with a resolution, with the report.

Mr. Pagtakhan: Would there be any further merit or will it be an undue use of time to invite more witnesses, as has been suggested?

Mr. Maingot: It wouldn't be incumbent upon me to make any comments about that.

As I said, it's up to the collective common sense of the committee to make these decisions.

Mr. Pagtakhan: If we look at the guidelines the committee adopted, in paragraph 2 it says - and I will refer to only the last clause - ``...whether or not his actions were appropriate for a member of Parliament'', meaning that the appropriateness of behaviour is different from a breach of privilege itself or contempt of the House. Did I understand it clearly?

Mr. Maingot: You could say that it was not appropriate but not contempt.

Mr. Pagtakhan: So you are making the differentiation between appropriateness of behaviour and breach of privilege and contempt of the House?

Mr. Maingot: I think committees in the past have said that such activity on the part of a member or otherwise, a newspaper, was inappropriate but maybe not contempt. But they also might have said that it's contempt but didn't recommend any action to be taken.

Mr. Pagtakhan: Is it within the terms of the order of reference of this committee, having made a finding of fact, whatever it is or whatever they are, to give recommendations as to penalties, or would it exceed our jurisdiction insofar as the order of reference is concerned?

Mr. Maingot: No. The committee certainly could make recommendations with respect to what sanction, if any, should be imposed.

Mr. Pagtakhan: Notwithstanding, where does it say that in the order of reference, when it is not explicitly expressed?

Mr. Maingot: That's the practice. If you look at other reports from committees, they will say that no further action should be taken, or words to that effect, that there should be no sanction. It has often been done where a committee has said that perhaps no action should be taken.

Mr. Pagtakhan: So an order of referral automatically includes an order to determine, should the committee wish, a set of penalties or no penalty at all?

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Mr. Maingot: Automatically, no. I think it would be incumbent upon the committee. They can make recommendations, and they have in the past made recommendations, on what should be done.

Mr. Pagtakhan: You have seen the communiqué itself, of course.

Mr. Maingot: Yes.

Mr. Pagtakhan: Is there anything in the title of the communiqué, in the use of the letterhead, in any paragraphs, that you should alert the committee, in our examination of this communiqué, and knowing the criteria for breach of privilege, contempt of the House, we should really focus on?

Mr. Maingot: I think you've focused on everything; everything that has been heard, everything that has been said, and everything you have, all the documentation you have before you.

Mr. Pagtakhan: That should guide us to say there has been a breach, or an absence of it; there has been inappropriate or appropriate behaviour.

Mr. Maingot: The standard is whether it lowers the respect of the House in the eyes of the public.

Mr. Pagtakhan: My last question. Is there anything in this communiqué that would have hampered the duty of any member of Parliament, including the one who issued the communiqué?

Mr. Maingot: If someone says outrageous things about the House, it affects the member indirectly. If a member shows contempt for the House in the traditional sense, saying outrageous things that hold the House in disrespect, or if there are editorials in the newspaper that make comments such as that, it's constructive. If it's constructive contempt, that's what you're asking about, whether the comments there, what was said there, were something that would hold the House in disrespect. So it would be said to be contempt.

The Chairman: Mr. Harb.

Mr. Harb (Ottawa Centre): Thank you very much. I know we're running out of time. I'm going to be quite concise.

Mr. Maingot, you very eloquently stated that there are terms of reference before this committee and this committee should be working within them. I wanted to refer you to a comment that was made by Mr. Hart in the House of Commons, page 557, on Tuesday, March 12, 1996, in which he said:

Mr. Speaker, I have a specific charge and a substantive motion. I will submit it to you to determine whether it should be given privilege:

He moved on to say:

That in the opinion of this House, this action by the hon. member for Charlesbourg

and he moved on to say:

should be viewed as sedition and offensive to this House and constitute a contempt of Parliament;

He moves on to say, a little later:

The question to be answered is whether the member is guilty of offending Parliament.

So the operative phrase here is ``I have a specific charge''.

Now, the Speaker, after hearing all the evidence and the argument, came back to state, on page 558, when he passed the order to this committee, that:

We must therefore go to the next step. We must determine by due process in our opinion the member's innocence or guilt.

So before this committee now we have the decision of Parliament, the decision of the Speaker, that we have to determine innocence or guilt, based on a specific charge. Since that time the charge has been withdrawn to a large extent, but before us is still the matter we have to deal with, and that is to determine the guilt or innocence of the member.

The member from the Reform Party indicated -

The Chairman: Excuse me, Mr. Harb. There's a point of order by Mr. Frazer.

Mr. Frazer: Mr. Harb misquoted the charge of the member from Okanagan - Similkameen - Merritt. The charge was ``viewed as seditious''.

Mr. Harb: That's what I said.

Mr. Frazer: No, you said ``sedition''. There is a difference, to my mind, between ``viewed as seditious'' and ``sedition''.

The Chairman: It's not really a point of order; it's a point of clarification.

Mr. Harb: To that extent, Mr. Chair, the member from the Reform Party indicated this committee should make some extra recommendation. I want to ask the witness whether that would not be another subject matter before the committee, beyond the fact that what we have before us is the term of reference, which we have to deal with; whether we shouldn't be focusing only on the subject before us, which is to prove the innocence or guilt of the member.

Would you agree we have one specific subject matter before us, and if anything, that would be a second matter we would have to deal with?

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Mr. Maingot: Again, I don't want to seem as if I'm just repeating myself, but you're talking about events that took place in the House before the motion was changed. The motion was originally brought forward, the Speaker accepted it, and then the members collectively changed that, as is their wont and as it is their right to do. So you have before you right now what the House agreed to. That's your term of reference.

Mr. Harb: Exactly.

Mr. Maingot: You can take into consideration all factors that you in your collective wisdom feel are relevant to the committee.

Mr. Harb: So whatever is before us is what the House has given us, period. For anything beyond that, it would be the prerogative of the committee if they wanted to do any extra work.

Mr. Maingot: Well, you can't go carte blanche. You're restricted to the terms of reference, and you've been helped by the motion that was adopted by the committee.

Mr. Harb: That is the question that we should be focusing on, Mr. Speaker. Thank you.

The Chairman: Thank you, Mr. Harb. I'm not the Speaker yet.

[Translation]

Mr. Lebel, please.

Mr. Lebel (Chambly): Mr. Maingot, in your opinion, there is no kind of relationship between the charges made by Mr. Hart in the House and the House's decision to make the reference to this committee. There is no legal connection between the charge and the committee's mandate. Is that indeed what you are telling us?

Mr. Maingot: What you have before you is the reference, the order from the House to consider it and to interpret it in your own way. Since that time, you have heard virtually the same thing as what occurred in the House.

Mr. Lebel: If I understand you correctly, Mr. Hart's charge is not relevant here. In other words, I, who today criticized the Unemployment Insurance Act and the Minister, could be the subject of the same kind of reference because I caused the Minister to lose face, because I put him in an embarrassing situation. So if there's no charge, the court nevertheless stands. Is that what you are telling us?

Mr. Maingot: If the motion you have already concurred in were accepted by the Speaker... Perhaps that's how you ask the question.

Mr. Lebel: Can we conduct a valid trial if we have no charge? If the charge falls by the wayside...

Mr. Maingot: It's not a trial, but a parliamentary investigation.

Mr. Lebel: Yes, but in law, you are familiar with the principle that what is accessory follows the principal. If the principal collapses, if the principal no longer exists, its accessory must necessarily follow. You seem not to have made this connection between the charge that Mr. Hart made and the prima facie decision the Speaker of the House made to refer the matter to the committee by order of reference. You seem to separate one from the other and to take each of the elements in such a separate way that one wonders what links them to each other.

According to your logic, which I respect but do not understand, Dr. Jacob's privileges could not be flouted by the action of a colleague because, in the meantime, the matter has gone before the Speaker and the committee of the House. So you are so compartmentalizing things so well - the charge, the trial and its conclusions - that not one of them depends on the others. Is that what you're saying?

Mr. Maingot: As you say, this began with a charge in the House, a charge that the House itself altered. It was you who changed all that and you now have before you a reference that states what it states. It is up to you to interpret it and to make a report.

Mr. Lebel: My friend, Mr. Laurin, apparently has something to add.

Mr. Laurin (Joliette): Mr. Maingot, you have examined the order of reference. In your opinion, does the content of the order of reference authorize us to rule on possible sanctions either against Dr. Jacob or against Mr. Hart, depending whether we find Dr. Jacob guilty or not guilty?

.1225

Mr. Maingot: You have before you a reference that concerns a member. It is up to you to decide whether, on the basis of everything you have heard, his action constituted contempt of Parliament. It is up to you to decide. That's what you have before you.

Mr. Laurin: Yes, but my question goes further. Once we have decided whether there was contempt of Parliament, in your opinion, does the order of reference authorize us to go further and, based on the conclusion we have reached, to recommend to the Speaker of the House or to the House possible sanctions to be taken against Dr. Jacob or Mr. Hart?

Mr. Maingot: If the committee finds that there really is a question of privilege, contempt, it may recommend that the person in question be sanctioned in one way or another.

I believe it is directed at one person in particular because the reference concerns the activity of one person, of one member.

Mr. Laurin: But there are two members in question. There is the member who drafted the communiqué and the one who accused him. You're telling me that we could make recommendations concerning Dr. Jacob's attitude, but if we found that there was no contempt, would the committee, in your view, be authorized to make recommendations concerning Mr. Hart's attitude?

Mr. Maingot: I've already cited Supreme Court of Canada cases that stated it was the role of a member, with his freedom of speech, to denounce abuses. That is not a question of privilege and there was no reason to suggest that there was any abuse. However, should the committee find that someone really...

[English]

If someone were deliberately misleading the House and the committee, that's another matter.

The Chairman: Colleagues, I'm just watching our time. Mr. Harris will be the last questioner. Dr. Pagtakhan has given me a short question that follows on something. The chair has three clarifications before this last witness, and we have a couple of other items under other business.

Mr. Harris.

Mr. Harris (Prince George - Bulkley Valley): Thank you, Mr. Chairman. I'm going to get to a question to Mr. Maingot here, but I would like to make some observations as one who's not a regular member of this committee but who has been watching the proceedings on television as they have progressed. I'm happy to attend today.

Something becomes abundantly clear to me, and it involves the real question that was put forward by the member from the Reform Party as to whether a member of the Bloc had, by his actions, become in contempt of Parliament. I think this committee should be examining whether that actually happened or not. The real question is being swept aside in the strongest possible manner by the very government that should want to get to the bottom of determining whether this is a legitimate question.

The question was raised by the Reform Party. It is rightly being defended by the members of the Bloc, because of course that's in their interest and we understand that. But what is so astounding is the lack of interest by the Liberal members in dealing with this question. I have heard member after member opposite present arguments on why this committee should simply let this thing go away and not get to the bottom of it.

I'm going to get to my question now.

.1230

The Chairman: I realize you're a new member today, but this committee is conducting a specific inquiry about an order of reference from the House. I have been quite vigilant - and I think members realize that - about matters directly related to the communiqué.

Respectfully, Mr. Harris, I would ask that you deal with questions to this specific witness.

Mr. Harris: I'm going to get to that right now, Mr. Chairman.

The Chairman: Thank you.

Mr. Harris: Mr. Chairman, the Liberal members opposite have put a tremendous amount of credence in the witness that this committee called, who just happens to be the sitting Liberal member from Vancouver Quadra.

Mr. Maingot, I know that your credentials are of course impeccable and of the highest standard in your field of expertise, and certainly this committee can view you as being a very credible and unbiased witness. In your opinion, do you feel that the issue that is before us today can merit the calling of additional witnesses if we are to determine whether the question put before this committee is a valid one or not? Is there a need to call more witnesses, and is it the mandate of this committee, is it within our jurisdiction, to decide, by this committee alone, whether more witnesses should be called?

Mr. Maingot: I can answer the last part of your question, Mr. Harris. It is certainly incumbent on the committee to decide who they are going to call as witnesses.

Whether you should call any further witnesses I don't think it would be incumbent upon me to say. It's not my job.

Mr. Harris: In your considered opinion, would you be able to comment in relation to matters directly related to the communiqué? Do you believe that it would be imperative to include witnesses who in fact received the communiqué, such as military personnel, etc., in order for this committee to have a clear indication of the impact of this communiqué on those who received it, what their interpretation of it was?

I think that what the impact of this communiqué was - the intention by the sender and the impression of that communiqué on the part of the receivers - has to be absolutely central to this whole question of whether there was contempt of Parliament.

Mr. Maingot: Again, Mr. Harris, with great respect, I don't think it would be incumbent upon me to determine what further witnesses are required.

Mr. Harris: I understand your answer, but I think the question was -

Mr. Maingot: You have to decide if you have to get the answers of the persons who received it to help you in your job. With great respect, it's up to the committee to make that decision.

Mr. Harris: I know that I have some time. I'm going to pass the time remaining -

The Chairman: I'm sorry; you don't have time. You're out.

Mr. Harris: Thank you then, Mr. Chairman.

The Chairman: We're on five-minute rounds here.

A last question to this witness. Mr. Pagtakhan.

Mr. Pagtakhan: Mr. Maingot, in Hansard, at page 558, is this statement by Mr. Hart:

The evidence is more than sufficiently strong. The evidence is conclusive.

Then he went on:

I would like to table the evidence in this case, which is the communiqué dated October 26, 1995 from the office of the official opposition.

Then he ended:

Mr. Speaker, I ask that you find this matter to be a prima facie question of privilege. I believe that this matter should be reviewed to determine whether or not the dignity of the House has been violated by the hon. member's actions.

Nothing in this statement calls for additional witnesses.

.1235

My question to you is this. Following parliamentary procedure, is it incumbent on this committee, hearing that the one who made the allegation himself stated in his charge before the House that the evidence is conclusive -

Mr. Frazer: I have a point of order, Mr. Chairman.

Mr. Pagtakhan: - is there a need to go beyond the evidence itself for examination?

Mr. Frazer: Mr. Hart is not a member of this committee. Surely the committee decides whether or not there are to be witnesses. Mr. Hart has little or nothing to do with that.

The Chairman: Let's let the witness answer the question. I think you have a valid objection or a point of view that's different from Mr. Pagtakhan's.

Go ahead, please.

Mr. Maingot: Again, it's up to you to decide what that means.

The Chairman: Colleagues, your chair is obviously in the difficult task of trying to navigate through these waters. The researcher is trying to help us as a committee with certain clarifications we need. We have the expertise of Mr. Maingot, and I'd like to put to him a couple of quick questions for some quick responses.

About the use of House of Commons supplies, and in particular the letterhead of the leader of the official opposition, can that be contempt? Question.

Mr. Maingot: Before you look at that you have to look at what the history has been. When the party in power now were in opposition, what did they do? You might look at it that way. Or what has been the practice with other opposition parties?

Secondly, apparently it's been going on for some time. Everybody has noticed it. Maybe that has a bearing on it too.

The Chairman: Is it a matter that in fact should be left with internal management, such as the Board of Internal Economy? Is it perhaps an issue for that particular body?

Mr. Maingot: As I say, it's part of the recommendations the committee could make. Committees have made recommendations in the past.

The Chairman: Is it appropriate for the committee to comment in its report on the original question of privilege that was raised by Mr. Hart, or the finding of the Speaker that there was a prima facie case of privilege?

Mr. Maingot: Then you get into tactical stuff: when a charge is involved, what should be the procedure and what has been the procedure in the past. But as I say, in the past nothing has been uniform. There have been only two cases, in 1956 and 1959, where the actual charge procedure was adopted and gone into. Otherwise they call it a question of privilege and go at it that way.

I don't think it's part of your terms of reference, quite frankly.

The Chairman: In your view, would it be appropriate for the committee to make recommendations about the Criminal Code or the internal operations of the armed forces? Those were two questions that came out.

Mr. Maingot: The committee has already agreed the Criminal Code matter doesn't apply.

The Chairman: It's off the table.

Mr. Maingot: But you see, the Criminal Code may be a standard the House can apply. That's what you have before you. If a person gets off on a technicality, you might say from your point of view that member is still guilty and you want to proceed against him from the point of view of contempt.

About the military, that's a matter of public policy.

The Chairman: The last question deals with the specific facts. We all agreed we'd try to come out with what the facts were. You've obviously been here for the duration. I'd like to know whether to date new facts have come out during the course of the committee's hearings and have warranted further inquiry or additional information that needs to come forward. Have you seen any new facts come forward, other than what's been alleged or mentioned by -

Mr. Maingot: More has been said in committee than has been said in the House. There is more information from that point of view. There are more facts or opinions, attitudes. In that way there has been more. About whether these facts require more evidence, that's a matter for the committee.

Mr. Strahl: Mr. Chairman, I'd like to move that this committee call additional witnesses to appear before the committee to flesh out the evidence.

The Chairman: First I just want to excuse the witness.

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On behalf of the committee, Mr. Maingot, I'd like to thank you for appearing, and we look forward to having you back to our right here. Thank you.

Mr. Strahl: Mr. Chairman, can you deal with my motion now?

The Chairman: I think that specific issue is already on the agenda under other business,Mr. Strahl. It's future business on the matter of the communiqué, if you look to item 3 on your agenda.

Mr. Strahl: I'd like to leave my motion on the floor, if I could.

The Chairman: You want to put your motion now?

Mr. Strahl: Yes, I do.

The Chairman: Okay.

Mr. Strahl: Could I just speak to it for moment?

The Chairman: That would be fine.

Mr. Pagtakhan: Mr. Chairman, as a point of order, do we have a notice of motion?

The Chairman: No. To be blunt here, colleagues, the difficulty I'm running into is that we have an agenda and in the agenda there is a matter that has been set aside for three meetings in a row. It's an urgent matter that has to be disposed of one way or another. It's an unrelated motion to what you're putting on the table, Mr. Strahl.

Mr. Strahl: This won't take long.

The Chairman: The difficulty is that nothing ever takes long.

Frankly, out of respect for Mr. Langlois's motion on an unrelated matter, I think we have to deal with it because it's a time-sensitive issue. I'd like you to agree to stand your issue aside for a moment. Let's deal with Mr. Langlois's motion, which has been presented. He's given us notice of it and it has been tabled three other times. Then we'll come back to your subject matter.

Mr. Langlois's motion has been duly circulated, it's been noticed, and it's been tabled three other times. I'd like to dispose of it, if we could.

Could we just stand your issue aside for a moment and deal with Mr. Langlois's? We can just take your motion as notice, which I think is what Dr. Pagtakhan is suggesting would be helpful.

Mr. Strahl: So we'll deal with my motion immediately after Mr. Langlois's?

The Chairman: That's right.

Mr. Strahl: Certainly.

The Chairman: Is that agreeable, colleagues?

Some hon. members: Agreed.

The Chairman: Mr. Langlois.

[Translation]

Mr. Langlois: Mrs. Parrish, perhaps you would like to speak?

[English]

The Chairman: Oh, I'm sorry.

Mrs. Parrish (Mississauga West): As a matter of urgency, I would also like to give the report for private members' business, because people have to prepare for the post-break debate.

The Chairman: That's a matter that affects all members. If we could dispose of these two matters very quickly and then move back to the issue of Jacob, I think that would be prudent.

[Translation]

Mr. Langlois: In order to release the clerk, Mr. Knowles, who has been waiting for quite a while, we could immediately move on to the point raised by Mrs. Parrish, that is the report by the Sub-Committee on Private Members' Business. We could then return to my motion.

[English]

The Chairman: Everyone is so cooperative today.

Mrs. Parrish, we'll receive a motion from you.

Mrs. Parrish: I'd like to move that the report from the Sub-Committee on Private Members' Business be adopted as the subcommittee's seventeenth report to the House.

I'd like to amend this to read that the chairman of the Sub-Committee on Private Members' Business present the report to the House.

I'll explain that. Mr. Zed won't be here tomorrow. Much of the debate will begin the week we're back and we'd like to be able to not have to keep it secret. We'd like the members from all parties to be able to prepare for the week we're back. Since I have House duty tomorrow, I'm willing to present it.

We have attached the bills and motions, as requested the last time, to the descriptions of the bills and motions that have been brought forward. The bills are on the back and the motions are on the front.

The Chairman: Is it agreed?

Some hon. members: Agreed.

The Chairman: Mr. Langlois.

[Translation]

Mr. Langlois: A copy of my motion has circulated three or four times; everyone has received it. I am making it while, however, changing the date in the last sentence since today is May 16.

I therefore move that the sub-committee report to the committee not later than May 27, 1996, that is on the Monday following the one-week recess.

The motion speaks for itself. The members recorded 11 objections following the reports of the provincial commissions. Those 11 objections came from Quebec members.

[English]

The Chairman: Colleagues, you have a motion on the question.

Mr. Milliken.

Mr. Milliken: Mr. Chairman, with great respect to my learned colleague Mr. Langlois, this matter has been dealt with extensively by the committee and the subcommittee. I recognize that the hearings in this case were inadequate for the public because of the obstruction of the Tory hacks in the Senate. That is quite obvious. Of course, they were aided and abetted by the Reform Party at the time. Then even the Reformers realized it was a mistake, backtracked, and now support the government bill, which is nice...

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Mr. Strahl: [Inaudible-Editor]...government was sold out.

Mr. Milliken: Well, we're trying to make sure that it doesn't happen again. I agree.

Mr. Strahl: Now you can put some more in.

Mr. Milliken: That's right, so it won't happen again. But I'm sure that my honourable friend will applaud the government's efforts to clean up the Senate in this regard.

Mr. Strahl: Alberta...

The Chairman: Come on, guys.

Mr. Milliken: I wanted to indicate that while there may have been a lack of public participation in this process because the Senate blocked the bill, and while members of the public may have thought we were going to have a new law that would allow for suitable public input on the issue, the fact is that the matter has been determined.

The chief electoral officer has complied with the law. He received the reports from this committee that we worked on with some diligence over a period of months. There were subcommittees. I think the hon. member for Bellechasse was on one of the subcommittees and worked quite assiduously in hearing the complaints from members and preparing a series of recommendations from that subcommittee that this committee accepted and transmitted to the House. They were subsequently transmitted to the chief electoral officer, who passed them on to the commissioners, who studied them and made changes in their reports.

These reports have now become the law and will be effective for any election called after January 8 of the next year. For us to reopen this issue, even if it were lawful for us to do so... And I think my colleague has presented an argument in that regard that may or may not be reasonable.

I don't want to get into the merits of the argument. But even if he were right, and if it were lawful for us to make further recommendations and somehow resurrect the commission to study the matter further, in my view it would lead to great uncertainty. We would end up with a situation where the boundaries commissions would do another report and there would be another twelve-month wait for those boundaries to come into effect, thereby putting this into at least July 1997, at the very earliest, before a determination could be made. I think my honourable colleague knows that.

I think that kind of uncertainty at what must be regarded as prime time for an election would be undesirable to all hon. members. Accordingly, I, with regret, suggest that we defeat this motion.

I intend to vote against it for that reason, not intending any disrespect for the efforts of my honourable friend in raising the matter and trying to correct what was clearly a poor public consultation process. That happened only because of obstruction in the other place and because of totally unwarranted meddling in House affairs, which this committee has deplored publicly in a report to the House and which of course we have deplored in our comments in this House about the conduct of the Conservative majority in the other place.

The Chairman: Thank you.

[Translation]

Mr. Langlois: I wouldn't want to prolong the debate, but I would like to answer my colleague from Kingston and the Islands that this is not a political matter in the broad sense of the term. It is only a legal matter. Under section 23 of the Electoral Boundaries Readjustment Act, a report was filed on March 4 last and returned to this committee by the Speaker of the House.

Under subsection 23(2) of the Act, the committee must consider it like any other report and hear the objections by members. You need only look at the 11 objections recorded with the clerk of the committee. We have a duty to take action which is not of a purely private nature. The objections must accordingly be considered by the committee and judged on their merits. What is subsequently done with them is not up to us.

If we refused to carry out a duty that is imposed on us under subsection 23(2) and sections 21 and 22 of the Electoral Boundaries Readjustment Act, we would be in an extremely difficult and distressing situation from a legal point of view and would be opening the door to legal challenges from people dissatisfied with the readjustment process.

If there are no other speakers, Mr. Chairman, I would ask that we vote on the question.

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[English]

The Chairman: Do you want to speak on this?

Mr. Pagtakhan: Yes, please.

The Chairman: Go ahead.

Mr. Pagtakhan: In addition to the uncertainty that it will create, as has been advanced as an argument in opposition to the motion, I would like to add that, although I admit that we may have a duty to examine and hear objections, that duty may have lapsed because the electoral boundaries commission has already been disbanded. So it is a question of the commission having disappeared as of now, and therefore it may require another legal procedure to have it reconstituted. So I have great doubts as to the utility of this particular approach. We have an inherent difficulty before us because of that fact: the commission has now been dissolved.

I suggest that at this point, because of the complexities it will pose, it will perhaps be counterproductive to pursue this matter any further. Therefore, on this additional basis, I will be constrained, despite and with all respect to the proposals of the member for the Bloc, to oppose this particular motion.

Motion negatived: nays 10; yeas 3 [See Minutes of Proceedings]

The Chairman: We're back to future business on the matter of the communiqué andMr. Strahl.

Mr. Strahl: Mr. Chairman, I have made my motion. If I could speak to it for a moment -

[Translation]

Mr. Langlois: On a point of order, Mr. Chairman, since we have disposed of two items on the agenda, could Mr. Strahl restate the motion he made earlier? Has it been translated? Is it in both official languages? Has a notice of motion been given?

[English]

The Chairman: He really didn't get a chance. Basically, I took it as notice. He's now putting a motion, I understand.

Is that right, Mr. Strahl?

Mr. Strahl: The motion is being circulated. I don't have copies for everyone. I do have it translated.

Basically, the motion says that the committee will call more witnesses to deal with this communiqué issue.

If I could speak to it briefly, during our time today listening to Mr. Maingot he mentioned that the examination of the communiqué involved not only the communiqué, not only what was said in the House, not only the written words and the technicalities, but he said it also included the entire spirit, the tension that was in the country, the context in which it came out, and the timing of it. The entire thing is open for discussion.

I would argue that, although the witnesses to date have been good and they have been interesting, what we've heard has been the technical side: what is parliamentary privilege, what is contempt. We've heard from Mr. Jacob and Mr. Hart, but we have not heard any of the rest of the witnesses who could flesh out what we discussed with Mr. Maingot, which is the whole context in which this came out, the impact it had upon the armed forces and upon the respect for Parliament. You could probably get someone in off the street and get an opinion from them on whether it did something to the respect for Parliament.

As you know, Mr. Chairman, we've submitted a list of potential witnesses. I'm certainly prepared to sit down with the steering committee and help to select the next round. Certainly we need more than just the technical side. We need to examine, at least at some length, the rest of the issues concerning the context, the tension, the flavour, if you will, that was pervading at the time when this communiqué came out.

That's the reason for the motion.

The Chairman: I have a motion.

There is a point of order.

Mr. Milliken: With great respect, my honourable friend has brought this forward and I think that's entirely appropriate, but I recall a discussion at either our last meeting or the one before that there was some problem about having the steering committee meet. I suggested that what we should do is have a discussion in the full committee as to having future witnesses, and I'm quite happy to do that.

Given the hour - we've been sitting for almost two hours - would it not be appropriate to put this off until our first meeting back, or our second meeting back - I think our first one is booked with the chief electoral officer - the first Thursday we're back, and have a full-scale discussion on who and what witnesses, if any, we want to hear?

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The motion is timely in that regard, but isn't it appropriate to leave it until then? My feeling was, and my feeling still is, that as members we ought to have a debate on this and a discussion about what we have heard, because we have refrained, all of us, from making comments. We have asked questions. Some may say the questions have been slanted one way or the other, but we have not generally made comments; we have asked questions. I think it's appropriate we have a discussion about what we have heard and where we might go. I'm happy to discuss it, but I suggest we do it at the next meeting, because we might want to spend a bit of time on this, rather than have a quick vote and say yes, we're going to hear more witnesses. We're not going to get agreement today, I don't think, at this hour.

So could I suggest we defer the matter to the first Thursday back and have it as the item on the agenda that day, so we can spend a day discussing this? Is that agreeable to my honourable friend?

Mr. Strahl: Mr. Chairman, I see two problems with it. First, if you wait until the Thursday we come back - so you are talking about two weeks from now - to give notification for witnesses to arrive, you're going to be lucky to get it done in this Parliament.

The Chairman: We're on a point of order, with the greatest of respect. As I understand it, you're asking our colleague to withdraw or postpone -

Mr. Milliken: Just to allow the matter -

The Chairman: It doesn't sound as if that is going to happen.

Mr. Pagtakhan: I move that the motion be tabled.

The Chairman: No, you can't do that. It's not acceptable.

Mrs. Parrish: I move we adjourn.

[Translation]

Mr. Bellehumeur: Mr. Chairman, I asked for the floor before Mrs. Parrish.

[English]

The Chairman: There's a motion on adjournment, which basically is a non-debatable motion -

[Translation]

Mr. Langlois: I would like clarification, Mr. Chairman.

[English]

The Chairman: Clarification -

[Translation]

Mr. Langlois: I'm trying to understand. I gave my name in order to have the floor, although perhaps Mrs. Parrish gave hers before I did, because I wanted to make a motion. To facilitate matters, perhaps Mrs. Parrish could withdraw her motion for the moment, if the committee does not wish to dispose of it, and make it again; we could dispose of it quickly. I wanted to move...

[English]

The Chairman: The point is -

[Translation]

An hon. member: He doesn't want to hear it.

[English]

The Chairman: - as I understand it, we have a motion. It isn't going to get resolved in any short period of time. Mrs. Parrish and Mr. Milliken's point of order was an attempt to put this off to a moment in the future. The point of order was taken by the chair and it looked as if the mover of the motion wanted the motion to be dealt with. Now Mrs. Parrish has moved an adjournment motion, and colleagues will know an adjournment motion is a non-debatable motion.

[Translation]

Mr. Langlois: If we allowed her to withdraw it for a few moments, perhaps we would get a consensus.

[English]

The Chairman: Even if there is already a motion on the floor, an adjournment motion, colleagues will know, takes precedence.

Mr. Strahl: Can I debate the adjournment motion?

The Chairman: It's a non-debatable motion. I'm sorry.

Could we vote on adjourning?

[Translation]

Mr. Langlois: I believe I understood that Mrs. Parrish has agreed to withdraw her motion for the moment so that I can make my point. Do you agree, Mrs. Parrish? Yes. So is it withdrawn?

[English]

Mrs. Parrish: The member was recognized before me. If it's agreeable -

The Chairman: Okay, Mr. Langlois has been recognized. Mrs. Parrish is withdrawing her motion.

[Translation]

Mr. Langlois: In this sense, Mr. Chairman...

[English]

The Chairman: It's by unanimous consent, I assume, that Mrs. Parrish's motion has been withdrawn.

Some hon. members: Agreed.

The Chairman: Mr. Langlois.

[Translation]

Mr. Langlois: I move that this committee adjourn and resume consideration of Mr. Strahl's motion on Thursday, May 27 next.

At the same time, I'm giving notice that, at the next committee meeting or at every subsequent meeting, I will make a motion that we put an end to consideration of the communiqué by the member for Charlesbourg and that we report to the House after drawing the appropriate conclusions.

[English]

The Chairman: You've tied an adjournment motion to Mr. Strahl's motion and then you've added something else to that motion.

[Translation]

Mr. Langlois: No problem. We can separate the notice of motion.

Mr. Bellehumeur: That's a notice of motion that is being given.

The Chairman: Yes.

Mr. Langlois: But the motion concerns adjournment.

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[English]

The Chairman: I'm having a difficulty with your motion. On a point of order, on this matter -

Mr. Strahl: Mr. Chairman, a movement to adjourn may be in order. That motion is not in order. That motion is a dog's breakfast and it's too much. It's bad enough that they want to move to adjourn, but certainly that motion is out of order.

The Chairman: I'll have to take that under advisement.

Mr. Harris: I have a point of clarification. This is getting confusing.

The Chairman: It's confusing for the chair as well.

Mr. Harris: Could you clarify whether or not Mrs. Parrish's motion of adjournment has been withdrawn from this committee? Is it no longer pertinent?

The Chairman: As I understand it, there is no adjournment motion now on the table.

An hon member: Move it.

The Chairman: You're now moving an adjournment motion, but you've tied something else to the motion.

Mr. Langlois: It's for a continuation of the hearing of Mr. Strahl's motion on the opportunity to hear more witnesses.

The Chairman: As I understand it, at this moment, we have a motion to adjourn. Mr. Langlois has proposed a motion to adjourn.

You have moved a motion to adjourn. I don't have a motion in front of me, but the essence of it, as I understand it, is that you're moving to adjourn. You're also adding to that adjournment thatMr. Strahl's motion, which is already on the floor, be considered at a meeting on Thursday, May 28.

Mr. Strahl: I have a point of order, Mr. Chairman. An adjournment motion may be in order, but you can't tie an adjournment motion to another motion. Otherwise, we're now going to get into debate. As soon as you start saying what's going to happen in the future in other business... Adjournment is one thing, but this is a combination thing that is not appropriate.

The Chairman: Okay, but the adjournment motion takes precedence. Mr. Langlois, as I understand it, has moved an adjournment motion. It's a stand-alone motion. The thrust of your point of order is that all he has really said is that he's adjourning and is suggesting that the matter - he's making a comment about your motion. That's how the chair is interpreting it.

Mr. Harris: I have a point of order, Mr. Chairman.

The Chairman: I have to be given one moment to consult with the clerk.

The clerk is advising me - and the chair is ruling - that Mr. Langlois's motion is an adjournment motion, but it is not a privilege motion. In other words, it's a debatable motion because of the fact... So his motion is debatable. It's not an adjournment motion, as other non-debatable adjournment motions might be.

Mr. Strahl: I would like to debate it then.

Mr. Pagtakhan: I have a point of order. I move that we adjourn.

The Chairman: That is a non-debatable item.

Motion agreed to

The Chairman: We're adjourned.

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