Mr. Speaker, I would like to take a few minutes to talk about our question of privilege.
Today we must deal with an unprecedented problem. The member for , who was also the parliamentary secretary to the Prime Minister in the House of Commons, was recently found guilty by the Ontario Court of Justice, under the Canada Elections Act, of several offences connected with the 2008 federal election.
A judge found the member guilty of the following. First, he was found guilty of personally paying an election expense and thereby wilfully exceeding his contribution limit contrary to subsections 405(1), 497(3) and 500(5) of the Elections Act. Second, he violated, by willingly incurring election expenses in excess of the campaign expense limit, subsections 443(1) 497(3) and 500(5). Third, he was found guilty of providing an election campaign return containing a false or misleading material statement in omitting to report a campaign contribution and election expense, contrary to paragraphs 463(1)(a) and 497(3)(v) and subsection 500(5) of the Elections Act, and violating by providing a campaign return that did not substantially set out the required information by omitting to report a campaign contribution and election expense, contrary to paragraphs 463(1)(b) and 597(3)(v) and subsection 500(5).
This count was stayed at the Crown's request following the finding of guilt.
Each count carries a maximum penalty of $2,000, a year in prison, or both. I am sure the Speaker has already read the document dealing with this conviction.
These are extremely serious offences. By being found guilty of breaking the very electoral laws that put him in this place, the member has shown contempt for our democratic institutions and has undoubtedly tarnished the dignity of the House.
The second edition of the House of Commons Procedure and Practice, Bosc and O'Brien, states at page 134:
Parliamentary privilege holds Members responsible for acting in character with the function they fulfil as elected representatives.
It also quotes Bourinot, 4th edition, page 64, stating that:
The right of a legislative body to suspend or expel a member for what is sufficient cause in its own judgement is undoubted. Such a power is absolutely necessary to the conservation of the dignity and usefulness of a body.
Page 135 contains other references to Maingot, second edition, page 221, which states that expulsion is advised and “extends to all cases where the offence is such as, in the judgement of the House, to render the Member unfit for parliamentary duties.” Nothing exemplifies a member's unfitness more clearly than being found guilty of violating the Canada Elections Act.
As I said before, this is an unusual matter. There have only been four cases since Confederation where members of the House were expelled for having committed serious offences. We can look to the more recent events in the Senate where three appointees of the present were suspended without pay, and they have not even been found guilty of criminal acts in a court of law.
The second edition of House of Commons Procedure and Practice clearly sets out, on pages 244 and 245, all the details of the next steps to be taken by the House of Commons:
By virtue of parliamentary privilege, only the House has the inherent right to decide matters affecting its own membership. Indeed, the House decides for itself if a member should be permitted to sit on committees, receive a salary or even be allowed to keep his or her seat.
It also states:
The power of the House to expel one of its members is derived from its traditional authority to determine whether a member is qualified to sit.
Mr. Speaker, with respect to our collective privilege that requires us both to act in a manner that upholds the dignity of the House as well as to regulate our own internal affairs and membership, I am asking that you agree that this matter constitutes a prima facie case of privilege and that you invite me to move the appropriate motion. Should you do that, Mr. Speaker, I would propose a motion that would seek to immediately suspend the member for , without salary, and refer the matter to the Standing Committee on Procedure and House Affairs for further study on the status of his membership in the House of Commons.
Mr. Speaker, this is not the first time that a member of this government has faced charges of election fraud. However, it is the first time that a member has been found guilty by the court of these offences and has publicly stated that he intends to keep his seat in the House of Commons, as well as all the inherent privileges.
The in-and-out scandal of the 's senior electoral advisors, the voter suppression through illegal robocalls by Conservative Party staff, the electoral fraud of the Prime Minister's disgraced former minister of intergovernmental affairs, and the spending scandal involving the Prime Minister's appointments to the Senate all advanced Conservative interests and asked the Canadian public to pick up the tab. These are all cases that have been raised in this House.
However, this is the first time that a member has been charged and found guilty.
In closing, although the expelled his former parliamentary secretary from the Conservative caucus as soon as he was charged with these serious offences, other measures are required now that he has been found guilty of four counts of election fraud.
Mr. Speaker, I hope you will agree that this matter constitutes a clear prima facie question of privilege, a question on which this House ought to debate and make a decision.
Mr. Speaker, as we all know, we are discussing the question of privilege arising out of Friday's decision by the Ontario Court of Justice regarding the member for . As I understand Friday afternoon's proceedings, you are in fact tracking down primary documentation.
In the meantime, I would like to lay upon the table, in both official languages, a copy of the news release that has been issued by the Public Prosecution Service of Canada on the trial results. It is not the authoritative primary document that the court judgement would be. However, it does provide us with more information than we had on Friday.
As is noted in this news release, there were four guilty verdicts against the member for , and three against his co-accused official agent. One pair of charges was stayed at the request of the Crown. Of specific importance to us is that the member was convicted of the offence of willfully incurring election expenses in excess of the campaign expense and contrary to subsection 443(1) of the Canadian Elections Act. Paragraph 502(1)(c) of that act places that offence in the category of illegal practices.
Subsection 502(3) then becomes the critical provision for us in relation to the offence of willfully exceeding the expense limit, and I quote:
(3) Any person who is convicted of having committed an offence that is an illegal practice or a corrupt practice under this Act shall, in addition to any other punishment for that offence prescribed by this Act, in the case of an illegal practice, during the next five years...after the date of their being so convicted, not be entitled to
(a) be elected to or sit in the House of Commons; [...]
However, the statute does not vacate the seat. It falls to us, as the House of Commons, to decide how the statutory provision is to be applied, as pages 244 and 245 of the House of Commons Procedure and Practice explain:
Once a person is elected to the House of Commons, there are no constitutional provisions and few statutory provisions for removal of that Member from office. The statutory provisions rendering a Member ineligible to sit or vote do not automatically cause the seat of that Member to become vacant. By virtue of parliamentary privilege, only the House has the inherent right to decide matters affecting its own membership.
As I said in a published statement on Friday afternoon, I find that the decision in the Lindsay provincial court raises serious concerns. In short, I am proposing that leave be granted for a motion to refer this matter to the procedure and House affairs committee for examination.
It is my intention to move a motion setting out detailed areas for the committee to consider for recommendation, such as a suspension without pay pending the disposition of all legal proceedings, as well as the administrative questions related to pensions, benefits, offices, and staff which would then arise.
For the clarity of the House, Mr. Speaker, the motion I intend to bring, which I provided you notice of, would read as follows:
That the matter of the October 31, 2014, decision of the Ontario Court of Justice respecting the Member for Peterborough in relation to charges under the Canada Elections Act and, in particular, that of wilfully incurring expenses in excess of a campaign expense limit, contrary to section 443 of the Act be referred to the Standing Committee on Procedure and House Affairs with instruction that it report back to the House with recommendations, including those addressing the following issues:
(a) a suspension of the Member, without pay, pending the finalization of all legal proceedings in this matter;
(b) an expulsion of the Member, should a conviction under section 443 not be set aside by a competent authority and no further rights of appeal remain available to the Member, together with the appropriate Order, in those circumstances, for the Speaker to issue his warrant to the Chief Electoral Officer for the issue of a writ for the election of the member to serve in the present Parliament for electoral district of Peterborough;
(c) the appropriate approach respecting the Member's pensions, travel status expense account, insurance and other benefits;
(d) the appropriate approach respecting the employment of the staff, and management of the offices, of the Member; and
(e) any other questions that arise as a result of this matter and its disposition.
Mr. Speaker, since I am making a lengthy series of submissions, perhaps it might be helpful to give you and the House an outline of the topics that I plan to address.
First, I will speak to the jurisdiction of the House to entertain questions concerning a member's right to sit and vote.
Second, I will address the procedure and practice relating to how the House entertains these questions.
Third, I will give attention to the present circumstances and the outstanding questions.
Finally I will set out my proposed approach as reflected in the motion that I just read.
My submissions are lengthy because there are a number of important principles and major questions to be addressed, questions which do not all lend themselves to ready answers. Moreover, some of the authorities on point may even be contradictory, which is all the more reason that I think a committee should take up this issue.
First, with respect to jurisdiction, the expulsion of a member is something which is clearly within the powers of the House. That is what O'Brien and Bosc explains as follows:
Under section 18 of the Constitution Act, 1867, which endowed the House with the same privileges, immunities, and powers as enjoyed by the British House of Commons, the House of Commons possesses the power of expulsion. A serious matter, expulsion has a twofold purpose as explained in May:
“The purpose of expulsion is not so much disciplinary as remedial, not so much to punish Members as to rid the House of persons who are unfit for membership. It may justly be regarded as an example of the House's power to regulate its own constitution. But it is more convenient to treat it among the methods of punishment at the disposal of the House”.
Even this most drastic power has its limits, however, as is noted in Bourinot:
“The right of a legislative body to suspend or expel a member for what is sufficient cause in its own judgment is undoubted. Such a power is absolutely necessary to the conservation of the dignity and usefulness of a body”. [...]
The House may expel a Member for offences committed outside his or her role as an elected representative or committed outside a session of Parliament. As Maingot explains, it “extends to all cases where the offence is such as, in the judgment of the House, to render the Member unfit for parliamentary duties.”
Joseph Maingot, at page 188 of Parliamentary Privilege in Canada, Second Edition, explains the exercise of this authority in relation to a conviction triggering a statutory disqualification on sitting and voting, the matter we are considering here:
The Canada Elections Act provides for the election of the Member, but when duly elected, the House alone is the body to determine whether a Member shall remain a Member. Thus, although a Member may be convicted of something as serious as a treason-related offence, or even sentenced to five years or more upon conviction of any indictable offence, a formal resolution of the House is still required to formally unseat him, at which moment the Speaker may not yet address his warrant for the issue of a writ for the election of a Member to fill the vacancy without an order of the House of Commons to that effect. [...]
In the final analysis, the House of Commons may exclude, suspend, or expel a Member for any reason, because it is an internal matter.
What is clear is that the ordinary civil and criminal jurisdiction of the courts does not extend to determining the rights of Members to sit in the House, and the courts equally have nothing to do with questions affecting its membership except in so far as they have been specifically designated by law to act in such matters as, for example, under [part 20 of the Canada Elections Act on contested elections].
Of course, since that book was published, the five-year threshold under the Criminal Code has been amended to be two years. However, that is not of direct relevance here, given that we are dealing with a Canada Elections Act disqualification.
In terms of procedure, the authorities are clear that the House of Commons may pronounce on a member's right to sit and to vote when it has been brought into question. When that right is questioned, it is to be treated as a matter of privilege, which is why I am rising on this question of privilege.
Maingot explains, at page 247:
A third procedure akin to “privilege” (because it would be given precedence and discussed without delay) would be the case of whether a Member was disqualified to sit and ineligible to vote. These matters may only be resolved ultimately by the House, and they are “privilege” matters because the House has the power to rule that a member is ineligible to sit and vote, and to expel the Member.
The determination of whether a Member is ineligible to sit and vote is a matter to be initiated without notice and would be given precedence by its very nature.
Lamoureux, in his March 1, 1966 ruling, at page 204 of the Journals, on a question of privilege respecting a member who had not met a deadline to file a campaign expense return, concluded with these words:
From the references and precedents just quoted it would appear to me: (a) That, even if there is a penalty provision in section 63 of the Canada Elections Act and whatever may be the terms of the order made by the judge pursuant to the said section in allowing an authorized excuse, the House is still the sole judge of its own proceedings, and for the purpose of determining on a right to be exercised within the House itself which, in this particular case, is the right of one honourable Member to sit and to vote, the House alone can interpret the relevant statute.
(b) That the procedure followed in 1875 with regard to the precedent above referred to, which bears resemblance to the case before us, seems to me to indicate that the question was dealt with at the time as being of the nature of a prima facie case of a breach of privilege.
(c) That it is not within the competence of the Speaker to decide as to the question of substance or as to the disallowance of a vote, and that such decisions are to be made by the House itself.
That 1966 ruling was not followed up with a motion in the House.
Also, it is worth pointing out that in the 1875 case that was just referenced, related to an issue of a member, who having resigned and been re-elected in the ensuing by-election sat and voted after the by-election without retaking the oath of allegiance, Maingot, at page 212, speaks to who takes leadership of this type of proceeding:
In any event, while any Member may move to examine the conduct of another Member, where a Member has been convicted of a serious offence, the motion to declare his seat vacant, when it is moved, is normally moved by a Member of the government.
Since the conduct of the member for has been examined elsewhere, namely in the Ontario Court of Justice, the duty of initiative does fall to me.
Page 50 of Erskine May's Parliamentary Practice, 24th edition, explains the role of the government House leader, including:
...at all times, being responsible to the House as a whole, he 'advises the House in every difficulty as it arises'.
Because it is such a rare proceeding, there is no straightforward procedure written down that may be replicated here.
In fact, just three individuals have been expelled from this House on a total of four occasions. Citations 47 to 49 of Beauschesne's Parliamentary Rules and Forms, sixth edition, recounts those cases.
First, and members probably studied this case in school:
On two occasions Louis Riel was expelled. On the first occasion he had fled from justice and had failed to obey an order of the House to appear in his place. ... When re-elected, the House, after examination, decided that he had been judged an outlaw for felony and ordered the Speaker to issue a warrant for a new writ.
The case of Fred Rose in 1946 was rather different. The Speaker laid before the House court documents regarding the conviction and sentence to six years' imprisonment of Fred Rose for conspiring to commit various offences under the Official Secrets Act...and the House ordered the Speaker to issue a warrant for a writ.
It is not necessary for the courts to come to a decision before the House acts. In 1891 charges were laid in the House against Thomas McGreevy relating to scandals in the Public Works Department. The Committee on Privileges and Elections examined the evidence and concluded that the charges were amply proven. Mr. McGreevy meanwhile had submitted his resignation, which was void since the matter had not yet been settled in the courts. The House judged Mr. McGreevy to be guilty of a contempt of the House as well as certain of the charges and ordered his expulsion.
More recently, the House may have been in the position to consider a member's expulsion, but events superseded the point, as explained at footnote 477 on page 245 of O'Brien and Bosc:
In 1989...Svend Robinson (Burnaby—Kingsway) rose on a question of privilege with respect to the conduct of Mr. Grisé (Chambly) who had pleaded guilty to charges of breach of trust and fraud. Mr. Robinson stated that if the Speaker found the matter to be prima facie, he would move a motion that Mr. Grisé be expelled from the House and his seat declared vacant.... Speaker Fraser took the matter under advisement. Before he could render his decision, Mr. Grisé resigned his seat.
A review of the records of the House will elaborate upon the details of these cases.
Beyond those four incidents, our provincial and territorial legislatures have yet more precedents that could be reviewed, some of which may have been neat and tidy affairs, and others that were the opposite.
Of an expulsion from Manitoba's Legislative Assembly in 1980, its then Clerk Assistant, Gord Mackintosh—who has, for the last 21 years, been an NDP MLA—summed up those proceedings in an article published in the Canadian Parliamentary Review:
...it is clear that legislatures have great discretionary powers to expel members and have at times invoked this prerogative. Through customary usages, certain parliamentary procedures have been followed in expulsion cases but no hard and fast rules can ever be established. Each Assembly's approach to an expulsion is almost entirely unpredictable. Political considerations of the day, recognized procedure, legislation and case law all play a role. Manitoba's “Wilson affair” may have been an unfortunate incident but it did offer interesting insights into this little used form of Parliamentary privilege.
It is important that we do not fall into the jumble of proceedings that was witnessed in that incident, which is why I am advocating for a committee reference here.
As I indicated earlier in response to my friend, the current state of the judicial proceedings is such that we have a verdict but a sentencing has not taken place. That sentencing hearing is to take place on Friday, November 21.
As at least one journalist has pointed out on Twitter, the sentencing judge could theoretically give the member for an absolute discharge or a conditional discharge. I shall not review the same terms, but under the Criminal Code, that kind of discharge would have the effect of negating the condition precedent, that being a conviction, which is the condition precedent for the section 502 disqualification.
For that reason, as I said earlier, it would be premature at this time for the House to suspend.
However, referring the matter to the Committee on Procedure and House Affairs would not be premature. It would be appropriate, and it could deal with the matter at the appropriate time, following the sentencing hearing.
What that would also allow is for this House to take action right now, at an earlier point in time, to show that we were in carriage of the matter and acting appropriately.
There is the question of the appeal, and this relates to conducting an expulsion immediately upon a guilty finding. While the status of the member for could change that quickly, it may also change further down the road, following an appeal. The member for Peterborough has already stated his intention to appeal the verdict, but what would happen if the trial judge's verdict is overturned?
While British electoral law provides for a convicted member's seat to be vacated, unlike our law, that law was, however, amended in recent years to provide for the possibility of an appeal court overturning a verdict. Page 35 of Erskine May describes it best:
On conviction by a criminal court, a person guilty of a corrupt or illegal practice is disqualified for the same periods as above; if he or she has been elected, there are provisions for the disqualification not to begin for a maximum of three months while an appeal is pending, during which time the person may not perform any of his or her functions as a Member of Parliament.
Then footnote 9 on page 36 explains the prior state of law and presumably the reason motivating the Westminister Parliament to amend the law:
In 1999, before the current provisions were made, a member was convicted of a corrupt practice in relation to a declaration of election expenses, and the Speaker announced that the seat was accordingly vacant. The conviction was then overturned on appeal, and the Speaker asked the Attorney General to seek a declaration by the High Court on whether the Member was entitled to resume her seat. The court determined that the Member was so entitled.
This quandary is summarized in McGee's Parliamentary Practice in New Zealand, third edition, and is followed by this observation at page 30:
Nevertheless, a successful appeal against conviction would seem to remove the justification for disqualification in the first place and the same principles for avoiding the loss of a member's seat, if this was still possible, may apply in New Zealand.
Further down that page in respect of an electoral sense, we read:
The same principles for avoiding disqualification in the case of a successful appeal of a conviction of a corrupt electoral practice as was discussed above in regard to conviction for a crime would seem to apply, if this is still possible.
Therefore, it is not unsurprising to read that Maingot cautions at page 188 on proceeding hastily:
It still remains the decision of the House itself and it is probably that, before the House expels a Member, all avenues of appeal will have been exhausted.....
This point is re-articulated by O'Brien and Bosc at page 245:
When there has been a criminal conviction, the House of Commons has acted only when sufficient evidence against a Member has been tabled (i.e., judgements sentencing the Member and appeals confirming the sentence).
Maingot elaborates at page 212:
In all of the instances both in Canada and in the U.K., the House will go to great lengths to have all available evidence, e.g. judgments sentencing the Member and appeals confirming the sentence before it, prior to embarking on the serious course of expelling one of its Members. In the case of Fred Rose, the House waited until all appeals were exhausted and until it was clear that the Member could not fulfil his parliamentary duties because of his prison sentence. The task is rendered easier for the House when the Member is sentenced to prison, and the instance as yet to arise of a Member convicted of a crime involving serious moral turpitude for which the sentence is suspended. In such an event, the House would weigh the question of fitness of the person to remain a Member, should it become seized of the issue.
There is the question of the sub judice convention.
By the very existence of appeal proceedings, this matter will remain before the courts, or to borrow a phrase we use often here, sub judice. Page 99 of O'Brien and Bosc describes the sub judice convention as such:
It is accepted practice that, in the interests of justice and fair play, certain restrictions should be placed on the freedom of Members of Parliament to make reference in the course of debate to matters awaiting judicial decisions, and that such matters should not be the subject of motions or questions in the House. Though loosely defined, the interpretation of this convention is left to the Speaker. The word “convention” is used as no “rule” exists to prevent Parliament from discussing a matter which is sub judice. The acceptance of a restriction is a voluntary restraint on the part of the House to protect an accused person or any other party to a court action or judicial inquiry from suffering any prejudicial effect from public discussion of the issue.
On the application of the sub judice convention in criminal proceedings, O'Brien and Bosc explain it at pages 628 and 629:
No distinction has ever been made in Canada between criminal courts and civil courts for the purpose of applying the sub judice convention, and it has also had application to certain tribunals other than courts of law. The convention exists to guarantee everyone a fair trial and to prevent any undue influence prejudicing a judicial decision or a report of a tribunal of inquiry. Indeed, in the view of the Special Committee on the Rights and Immunities of Members, “prejudice is most likely to occur in respect of criminal cases and civil cases of defamation where juries are involved”.
Where criminal cases are concerned, the precedents are consistent in barring reference to such matters before judgement has been rendered and during any appeal. Members are expected to refrain from discussing matters that are before a criminal court, not only in order to protect those persons who are undergoing trial and stand to be affected whatever its outcome, but also because the trial could be affected by debate in the House. It has been established that the convention would cease to apply, as far as criminal cases are concerned, when judgement has been rendered. The Speaker has confirmed that a matter becomes sub judice again if an appeal is entered following a judgement.
Therefore, Mr. Speaker, does that mean that the sub judice convention prevents us from discussing here in our House of Commons the situation of the member for until all appeal proceedings have concluded? That answer may lie on page 627 of O'Brien and Bosc, which states:
The sub judice convention is first and foremost a voluntary exercise of restraint on the part of the House to protect an accused person, or other party to a court action or judicial inquiry, from any prejudicial effect of public discussion of the issue. Secondly, the convention also exists, as Speaker Fraser noted, “to maintain a separation and mutual respect between legislative and judicial branches of government”. Thus, the constitutional independence of the judiciary is recognized. However, as Speaker Sauvé explained, the sub judice convention has never stood in the way of the House considering a prima facie matter of privilege vital to the public interest or to the effective operation of the House and its Members.
Madam Sauvé's ruling was favourably cited by you, Mr. Speaker, in your ruling of June 18, 2013, at page 18551 of the Debates. In that case, which was also one on respecting members' rights to sit and vote being called into question while judicial proceedings were pending, your ruling offered this perspective:
...the Chair is faced with the fact that some have argued that it is just and prudent to continue to await the conclusion of legal proceedings, while others have maintained that the two members ought, even now, not to be sitting in the House.
I believe that the House must have an opportunity to consider these complex issues.
In short, it would appear that discussing certain issues, such as determining how to resolve a member's right to sit and vote, warrants priority over the sub judice convention. Therefore, I believe that we can proceed here.
Finally, I want to address one modern development in the context of our ancient privileges, and that is to consider the extent, if any, that the Canadian Charter of Rights and Freedoms applies to our deliberations on this issue. Though I recognize clearly that it is not the place of the Chair to decide questions of law, the issue which I am about to canvass is one which could become inextricably linked to the matter of the member for , so it is important to put them before the House for the benefit of members.
O'Brien and Bosc take the position, at page 79, following recent court cases, including the Supreme Court of Canada decisions in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) and Harvey v. New Brunswick (Attorney General), as follows:
One question that has been raised and dealt with by the Supreme Court on three occasions is the relationship of parliamentary privilege to other parts of the Constitution, particularly the Canadian Charter of Rights and Freedoms. Since parliamentary privilege and Charter rights are part of the Constitution, each has equal value. The Court has consistently held that the Charter does not override parliamentary privilege.
While the courts play a role in determining if a privilege exists and is necessary for the legislative and deliberative functions of the House, the courts or other institutions cannot interfere with the exercise of the privilege or otherwise direct the affairs of the Commons.
However, the Supreme Court has not directly addressed the intersection of parliamentary privilege, expulsion, and the charter. While that court did consider the expulsion of a member of a legislative assembly in Harvey, the majority reached its decision on the basis of an analysis of the charter's provisions relative to the impugned statute.
Madam Justice McLachlin, as she then was, did, however, explore parliamentary privilege in her concurring reasons. At page 55, she stated:
I am of the view that the disqualification for office raised in this case falls within the historical privilege of the legislature and is hence immune from judicial review.
Later, at paragraph 80, she added:
It is clear that had the New Brunswick legislature simply expelled [Mr. Harvey] , that decision would fall squarely within its parliamentary privilege and the courts would have no power to review it.
In this case, the law of parliamentary privilege was not argued before any court until the Attorney General of Canada, as an intervener at the Supreme Court of Canada, raised it. Writing for the majority, Mr. Justice La Forest disposed of this issue at paragraph 19, where he stated:
...the issue was not seriously argued before us. In fact it was willingly conceded that it was appropriate to judge the provisions of s. 119(c) in light of the Charter. Given that the parties to the present appeal have chosen not to ground their argument on the basis that expulsion and disqualification are privileges of the Legislative Assembly, and given that there were no submissions by any party on the point, it is not necessary to decide that issue here.
Another post-charter expulsion, accomplished through a special statutory provision, drew this obiter comment from Chief Justice Glube, then of the trial division of the Supreme Court of Nova Scotia. The application judge in MacLean v. Nova Scotia (Attorney General), at paragraph 30, said:
In my opinion, the power to expel a person by resolution of the Assembly remains a valid function of the Assembly, and if by resolution, would not normally be reviewable by the Court.
As summarized in his 1987 Canadian Parliamentary Review article, “The Legislature, The Charter, and Billy Joe MacLean”, John Holtby wrote:
For politicians who saw the Charter as an intrusion by the Courts into parliamentary life, the case of Billy Joe MacLean has shown that the Courts continue to respect the rights and privileges of the House.
This accords with the view expressed, following the first Supreme Court of Canada decision on privilege, New Brunswick Broadcasting, by Professor Andrew Heard in his article, “The Expulsion and Disqualification of Legislators: Parliamentary Privilege and the Charter of Rights”, published in the Dalhousie Law Journal, at page 393. It states:
One can firmly conclude that the privileges of Canadian legislative assemblies include the power to expel their members. It is necessary to both the discipline and integrity of any legislature that members may be removed from office. Expulsion was not reviewable by the courts prior to the Charter and is not now subject to the Charter, according to the ratio of New Brunswick Broadcasting.
On the other hand, a former member of the House, Professor Ted McWhinney, wrote in a 1989 Canadian Parliamentary Review article, entitled “Forfeiture of Office on Conviction of an 'Infamous Crime” , this analysis of the 1980 Manitoba expulsion that I referred to previously:
—at the time of the Legislative Assembly's action an appeal against the criminal conviction had already been filed and the Member concerned was released on bail. Such legislative action -- literally, "jumping the gun" on the final determination by the courts of law of the guilt or innocence of the Member concerned for the crime with which he was originally charged and which formed the basis of the Legislature's own action -- would seem capable, only with extreme difficulty, of being reconciled with the Canadian Charter of Rights and Freedoms' general constitutional guarantees of due process of law.
As recently as 2012, lawyers in the Library of Parliament were expressing caution on this front. In a briefing paper entitled “Criminal Charges and Parliamentarians”, the authors note, at page 4:
In the past, the authority of the House over its members was considered to be absolute; it was said that the House could expel a member “for such reasons as it deems fit.” This discretion may have been somewhat circumscribed with the advent of the Canadian Charter of Rights and Freedoms. It is now arguable that the House would have to proceed in a reasonable and fair manner, giving the member involved an opportunity to answer any charges.
Professor Enid Campbell, in her pre-charter article, “Expulsion of Members of Parliament”, published in the The University of Toronto Law Journal in 1971, wrote:
There is no convincing reason why the rules of natural justice should not be held to apply to parliamentary proceedings for the expulsion of members. Members have distinct rights and privileges...and their expulsion deprives them of those rights and privileges...Cases of deprivation of public office were amongst the first to which the audi alteram partem rule was applied...
On that front, recommendations were made in the late 1990s at the Westminster House of Commons in relation to members charged with contempt. Though this is not a charge of contempt against the member for , some of the content outlined at page 200 of Erskine May could be of relevance in proceedings before a committee.
Meanwhile, Maingot's comments, at page 189, may be taken as a suggestion that the finding of facts are of importance, and that the House need not duplicate these efforts. He said:
A Member's right to sit may nevertheless be affected by a decision of the courts. Where in a reference to the court on the recommendation of a committee of the House the court finds that a Member is disqualified and ineligible to sit and vote, the House of Parliament of Canada would probably follow the U.K. practice and unseat the Member.
Having reviewed of all these precedents and all of these considerations, what is the best way forward? The next citation that I would like to quote is quite persuasive in answering that.
Sir John Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, at pages 161 and 162 states:
In the Canadian as in the English House of Commons, “whenever any question is raised affecting the seat of a member, and involving matters of doubt, either in law or fact, it is customary to refer it to the consideration of a committee”.
That citation was cited by you, Mr. Speaker, favourably, in your ruling of June 18, 2013, at page 18551, of the Debates, which I earlier referenced.
However, not only do I find the citation impelling because of the weight of the authority supporting it, but also because it is practical. That is why I want to see this matter referred to the Standing Committee on Procedure and House Affairs. That committee is best placed to consider all of the issues and questions I have canvassed in these submissions such as: What should be done if the sentence is a discharge?; What should be made of appeal proceedings?; Does the charter apply or inform in any way to the House or a committee's consideration of this?
The bottom line, too, is something that the committee is best placed to sort out: What is the overarching result that should be fashioned here? The committee needs to find a way which balances the court's finding of guilt, which should not be taken lightly, since it was arrived at on a standard of “beyond a reasonable doubt”, with the possibility that an appeal court could change that outcome.
The balanced solution is, in my view, one of suspension without pay until the verdict becomes final or is overturned. That would certainly be within the authority of the House to implement. Page 189 of Maingot declares:
In the final analysis, the House of Commons may exclude, suspend or expel a member for any reason, because it is an internal matter.
As to the notion of suspending without pay, pages 244 and 245 of O'Brien and Bosc relate that:
By virtue of parliamentary privilege, only the House has the inherent right to decide matters affecting its own membership. Indeed, the House decides for itself if a Member should be permitted to sit on committees, receive a salary or even be allowed to keep his or her seat.
Additionally, a suspension pending appeal would be consistent with the current British practice, which I cited earlier, and accords with the suggested New Zealand approach.
In the Manitoba case I mentioned before, the Legislative Assembly had adopted a motion, “That Mr. Wilson be ordered to withdraw from the Chamber and remain outside the Chamber unless a competent authority set aside his conviction”.
The member's expulsion was not perfected until after the Supreme Court of Canada had denied leave to appeal in his criminal case.
The most recent expulsion of a parliamentarian in Canada, in Nunavut on October 24 this year, followed a period of suspension, albeit imposed for disciplinary reasons related to the member's conduct.
A suspension would not be accomplished as simply as it might sound. Details would need to be worked out respecting pension accrual, travel accounts, health insurance and other benefits.
What about the member's offices? Since people in Peterborough will still be looking for services provided by the member's constituency office, should his office continue to function, but perhaps under the management of one of the whips, consistent with what happens when a seat is vacant? These, too, are decisions and details which ought to be ironed out. A committee is the best venue for doing just that type of work.
To that end, Mr. Speaker, should you find a prima facie case of privilege, I am prepared to move this motion: That the matter of the October 31, 2014 decision of the Ontario Court of Justice respecting the member for Peterborough in relation to charges under the Canada Elections Act—and, in particular, that of wilfully incurring expenses in excess of a campaign expense limit, contrary to section 443 of the Act—be referred to the Standing Committee on Procedure and House Affairs with instruction that it report back to the House with recommendations, including those addressing the following issues: (a) a suspension of the member without pay, pending the finalization of all legal proceedings in this matter; (b) an expulsion of the member, should a conviction under section 443 not be set aside by a competent authority and no further rights of appeal remain available to the member, together with the appropriate order, in those circumstances, for the Speaker to issue his warrant to the Chief Electoral Officer for the issue of a writ for the election of a member to serve in the present Parliament for the electoral district of Peterborough; (c) the appropriate approach respecting the member's pensions, travel status expense account, insurance and other benefits; (d) the appropriate approach respecting the employment of the staff, and management of the offices, of the member; and (e) any other questions that arise as a result of this matter and its disposition.
Though I think this argument is sound, such that you can find a prima facie of privilege, Mr. Speaker, I would invite you to reserve your decision for a period of time so that the member for Peterborough might have the opportunity of making an intervention if he wishes.
In fact, may I recommend, through you, that one of our Table clerks alert the member to this question of privilege having been raised and that an intervention would be invited? This would ensure, at a minimum, that the basic principles of fundamental justice, audi alteram partem, may be honoured before you give your decision.
In any event, Mr. Speaker, should you find favour with my point of privilege as I have raised and the House has had an opportunity to consider that motion, such an opportunity could also be exercised at the committee that would consider the questions of suspension/expulsion and other related matters.