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37th PARLIAMENT, 1st SESSION

Standing Committee on Procedure and House Affairs

EVIDENCE

CONTENTS

Thursday, February 28, 2002

1540

The Chair (Mr. Peter Adams (Peterborough, Lib.))

Mr. J.P. Joseph Maingot (Individual Presentation)

The Chair

Mr. Joseph Maingot

The Chair

1545

Mr. Toews

The Chair

Mr. Joseph Maingot

Mr. Geoff Regan (Halifax West, Lib.)

Mr. Toews

1550

Mr. Joseph Maingot

The Chair

Mr. Joseph Maingot

Mr. Toews

Mr. Joseph Maingot

Mr. Toews

1555

The Chair

Mr. Joseph Maingot

Mr. Vic Toews

Mr. Joseph Maingot

The Chair

Mr. Joe Jordan (Leeds--Grenville, Lib.)

Mr. Joseph Maingot

Mr. Joe Jordan

Mr. Joseph Maingot

Mr. Joe Jordan

Mr. Joseph Maingot

1600

Mr. Joe Jordan

Mr. Joseph Maingot

Mr. Jordan

Mr. Joseph Maingot

Mr. Joe Jordan

Mr. Joseph Maingot

Mr. Joe Jordan

Mr. Joseph Maingot

Mr. Joe Jordan

Mr. Joseph Maingot

Mr. Joe Jordan

Mr. Joseph Maingot

Mr. Jordan

Mr. Joseph Maingot

Mr. Jordan

The Chair

Mr. Brien

1605

Mr. Joseph Maingot

Mr. Brien

Mr. Joseph Maingot

Mr. Brien

Mr. Joseph Maingot

Mr. Pierre Brien

Mr. Joseph Maingot

Mr. Pierre Brien

Mr. Joseph Maingot

Mr. Pierre Brien

1610

Mr. Joseph Maingot

Mr. Pierre Brien

Mr. Joseph Maingot

Mr. Pierre Brien

Mr. Joseph Maingot

The Chair

Mr. Guimond

The Chair

Mr. Joseph Maingot

1615

The Chair

Mr. Geoff Regan

Mr. Joseph Maingot

Mr. Geoff Regan

Mr. Joseph Maingot

Mr. Geoff Regan

Mr. Joseph Maingot

Mr. Geoff Regan

Mr. Joseph Maingot

Mr. Geoff Regan

1620

Mr. Joseph Maingot

Mr. Geoff Regan

Mr. Joseph Maingot

Mr. Regan

Mr. Joseph Maingot

Mr. Regan

The Chair

Mr. Godin

Mr. Joseph Maingot

1625

Mr. Godin

Mr. Joseph Maingot

Mr. Godin

Mr. Joseph Maingot

Mr. Godin

Mr. Joseph Maingot

The Chair

Mr. Saada

1630

Mr. Joseph Maingot

Mr. Saada

Mr. Joseph Maingot

Mr. Jacques Saada

Mr. Joseph Maingot

Mr. Jacques Saada

Mr. Joseph Maingot

Mr. Jacques Saada

Mr. Joseph Maingot

Mr. Jacques Saada

1635

Mr. Joseph Maingot

Mr. Jacques Saada

The Chair

Mr. Jay Hill (Prince George--Peace River, PC/DR)

Mr. Joseph Maingot

Mr. Jay Hill

Mr. Geoff Regan

The Chair

Mr. Jay Hill

1640

Mr. Joseph Maingot

Mr. Hill

Mr. Joseph Maingot

Mr. Jay Hill

The Chair

Mr. Guimond

The Chair

Mr. Jay Hill

The Chair

Mr. Jay Hill

The Chair

Mr. Joseph Maingot

1645

Mr. Jay Hill

Mr. Joseph Maingot

Mr. Jay Hill

Mr. Joseph Maingot

The Chair

Mr. Jay Hill

Mr. Joseph Maingot

The Chair

Mrs. Jennings

1650

Mr. Joseph Maingot

Mrs. Jennings

Mr. Joseph Maingot

Mrs. Jennings

Mr. Joseph Maingot

1655

Mrs. Jennings

Mr. Geoff Regan

Mrs. Jennings

Mr. Joseph Maingot

Mrs. Jennings

The Chair

Mr. Benoit

Mr. Joseph Maingot

Mr. Benoit

Mr. Joseph Maingot

Mr. Benoit

Mr. Joseph Maingot

1700

Mr. Benoit

The Chair

Mr. Benoit

Mr. Joseph Maingot

Mr. Benoit

Mr. Joseph Maingot

Mr. Benoit

The Chair

Mr. Guimond

Mr. Joseph Maingot

Mr. Guimond

Mr. Joseph Maingot

Mr. Michel Guimond

1705

Mr. Joseph Maingot

Mr. Michel Guimond

Mr. Joseph Maingot

Mr. Michel Guimond

Mr. Joseph Maingot

Mr. Guimond

Mr. Joseph Maingot

Mr. Michel Guimond

The Chair

Mr. Jacques Saada

The Chair

Mr. Joseph Maingot

1710

The Chair

Mr. Pierre Brien

Mr. Jacques Saada

The Chair

Mr. Jacques Saada

The Chair

Mr. Geoff Regan

Mr. Joseph Maingot

Mr. Geoff Regan

Mr. Joseph Maingot

Mr. Regan

The Chair

Mr. Joseph Maingot

The Chair

Mr. Joseph Maingot

The Chair

1715

Mr. Toews

The Chair

Mr. Pierre Brien

The Chair

Mr. Jacques Saada

The Chair

Mr. Yvon Godin

1720

The Chair

Mr. Jay Hill

The Chair

Mr. Jay Hill

The Chair

Mr. Benoit

The Chair

Mr. Jacques Saada

The Chair

Mr. Jay Hill

The Chair

Mr. Jay Hill

Mr. Toews

The Chair

Mr. Toews

The Chair

Mr. Jacques Saada

1725

The Chair

Mr. Benoit

The Chair

Mr. Benoit

The Chair

Mr. Jacques Saada

The Chair

Mr. Jacques Saada

The Chair

Ms. Marlene Catterall (Ottawa West--Nepean, Lib.)

The Chair

Mr. Jay Hill

The Chair

Mr. Yvon Godin

1730

The Chair

Mr. Toews

The Chair

CANADA

Standing Committee on Procedure and House Affairs

NUMBER 053

1st SESSION

37th PARLIAMENT

EVIDENCE

Thursday, February 28, 2002

[Recorded by Electronic Apparatus]

¹ (1540)

[English]

The Chair (Mr. Peter Adams (Peterborough, Lib.)): Colleagues, can we begin?

The order of the day is, pursuant to the order of reference from the House of Thursday, February 7, 2002, consideration of the question of privilege raised on January 31, 2002, by the member for Portage-Lisgar concerning the charge against the Minister of National Defence of making misleading statements in the House.

Our witness today, who I will introduce in more detail later, is Joseph Maingot. Mr. Maingot, we apologize for the late start.

Colleagues, I'm going to summarize again where we stand with respect to documents, and I'm going to comment on a motion we have before us, which is tabled, and a motion of which I've been given notice.

The clerk has now circulated the document tabled by Cheryl Gallant last evening. The blues are in for yesterday's meeting and have been e-mailed to all members. We've received everything we've requested from the Clerk of the House, from Brian Pallister, from Minister Eggleton, and from Commodore Thiffault, including a correction we received at the last meeting from Commodore Thiffault. We're still waiting for replies from Mr. Judd, General Henault, Mr. Cappe, and of course, replies from Mr. Wright of foreign affairs, who was at our meeting this morning. I repeat again, the documents requested by Jay Hill are being processed, and I'll circulate them as soon as I can.

There's one other thing I want to say about these documents, and I'd like to say this now to staff who are here and others. Members have commented to me that we're receiving mountains of documentation. A fair amount of it is only copied on a single side. I want you all to know it's our committee's policy, when we do copying, to copy onto two sides of a sheet of paper, and I would urge on any of you who have influence over these matters that wherever we can, particularly when we're receiving so much paper, we encourage copying on two sides of sheets.

We have Yvon Godin's motion that was tabled, and I've had notice of a motion from the Canadian Alliance. It would be my suggestion, colleagues, that we consider both of those and any other outstanding business when we've heard from Mr. Maingot and questioned him, because he's here as our guest.

Mr. Maingot, I welcome you again formally. Joseph Maingot, among many other things, is the author of Parliamentary Privilege in Canada, which is the authority on matters of parliamentary privilege, and of course, this committee at this moment is considering a matter of parliamentary privilege.

Mr. Maingot, I apologize for introducing you so briefly, because I do know there are various facets to your life, but it's very good of you to be here. Do you envisage making a statement, or would you like us to begin?

Mr. J.P. Joseph Maingot (Individual Presentation): You could begin, Mr. Chairman. I don't have any particular statement to make. I don't know how you would like to proceed. I don't want to talk about privilege in general, unless you want me to, and so I leave it up to you, ladies and gentlemen.

The Chair: That's quite in order, as far as I'm concerned.

I know you know all about parliamentary procedure, but the particular arrangements the parties have negotiated for these hearings include 10 minutes of questions from each party in rotation at the beginning. We do one complete round like that, and the parties may use one questioner or more than one. When we get to the end of that, we proceed to five-minute periods, still alternating. We begin, as usual, with the official opposition. I will try to advise you when I know a party is sharing the time, so you'll know the questions will be broken up.

The first questioner I have from the Canadian Alliance is Vic Toews, then there will be shared time from Joe Jordan and Geoff Regan, and then we'll move through the parties.

Mr. Joseph Maingot: Mr. Chairman, given my background with the book and my interest in the integrity of privilege matters, maybe I'll just point out something.

You probably have been told that one of the basic principles is that proceedings in the House are conducted through free and civil discourse. A member will be taken to task if he's involved in unparliamentary expressions. That has been the case on many occasions in the past, and Speakers have made rulings. It's an elusive area, but generally speaking, if you're going to use an unparliamentary expression, you have to charge someone. In other words, when you have a question of privilege and you put that on the paper, the charge is not set out in there, because there has to be a charge that you're going to debate.

It's as if a person's half pregnant, as I see it. From the point of view of the practice, the procedure, and what one might call the theory of this area, maybe I'm too close to it. Normally, you should not be able to say that someone has deliberately misled the House. You probably, in the past, have said that in the House and you've been taken to task. But as I say, that can be done if you put a notice paper down and charge someone with having done that or some other very serious matter, and then the Speaker would give that precedence. You have to put it on the Notice Paper and the Order Paper. That's been discussed in a number of rulings.

So this case here seems like a halfway course, from what I saw. The member who raised it mentions that it's been demonstrated that the minister has deliberately misled the House, and then he makes a reference to an event that took place in the House, and he happens to refer to my book. First he refers to May: “The Commons may treat the making of a deliberately misleading statement as a contempt.” That's what was done in the House. Nothing has been settled here yet.

And then another member who was involved in the debate said that it involved a deliberate passing of misinformation. That also is normally not acceptable in the House.

Then Mr. Speaker, in his ruling, said the member for Lisgar alleged that the Minister of National Defence deliberately misled the House in this particular area. He made his ruling on the basis of the arguments presented by members, but:

...in view of the gravity of the matter, I've concluded that the situation before us where the House is left with two versions of events is one that merits further consideration by an appropriate committee.

So it's a bit halfway, but this has been done in the past. Because of the seriousness of the matter, because of the substance of the matter, as I understand it, it's gone before the committee, and that's happened in the past.

There was a case where a matter was raised six months after the event, and as you know, when it comes to privilege matters, you've got to raise them right away, you can't wait around. That also was an important matter. A member was alleged to have been involved in seditious activity, and so even though it was six months late, the Speaker said, I accept it prima facie, and of course, the House has to decide whether it's going to go to committee, if they vote on that motion, which it did then and which it did now.

From the point of view of someone who's very much involved and interested in the integrity of the system, I just wanted to point that out.

The Chair: We do appreciate that, and we appreciate your thoughts on those matters and in response to the questions members will have.

Again I'll say, we begin with Vic Toews, and these are 10-minute rounds, Mr. Maingot. Then we'll have Joe Jordan, Pierre Brien, Geoff Regan, Yvon Godin, Jacques Saada, and Jay Hill.

Vic Toews.

¹ (1545)

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much, Mr. Chair.

To the witness through the chair, I appreciate the comments you've made regarding the integrity of the process. Part of that integrity also relates to the committee process, so that a witness appearing before the committee, like a witness appearing before a court, who either refuses to answer questions or fails to reply truthfully could be subject to a charge of contempt. As I understand it, this requirement is balanced by a protection of the witness, so that when we bring witnesses before a committee, those witnesses are entitled to the protection of this committee and the protection of Parliament.

Yesterday, Mr. Chair, we heard a senior Liberal member suggest that the Deputy Chief of Defence Staff, Vice-Admiral Greg Maddison, and Chief of Defence Staff General Heneault be fired for what they said before this committee. Those threats were reported in a national newspaper, and I would think such threats, especially coming from a government member, would constitute a contempt, and it would be perfectly in order for this committee to seek the authority of the House to protect the defence staff, be it the deputy chief or the chief, from any action the Minister of Defence might take against them on the recommendation of this particular Liberal MP, if that action is based on the witnesses' testimony. I think it's the duty of this committee to protect witnesses, to ensure that we continue to encourage witnesses who have something to say, that witnesses who we demand come here are protected.

So my question to the witness, Mr. Chair, is, what action could this committee take against another member of Parliament? We'll assume the facts, rather than say they are, in fact, correct, for the purpose of this discussion. In which case, would it be appropriate to take action against the member directly to the House or to appeal to the Speaker, or should this committee deal with that issue?

The Chair: Mr. Maingot, I know that question's clear. Do you understand the circumstances of it? Do you know the circumstances Mr. Toews is referring to?

Mr. Joseph Maingot: No, I do not, but I got the gist of it. As I understand it, a member of the House of Commons, whether here or elsewhere, said he was going to take to task a witness for having said something.

Mr. Geoff Regan (Halifax West, Lib.): Mr. Chair, on a point of information, it seems to me that the quote from Mr. Mills Mr. Toews is referring to was that if he were the minister of defence, what he would do is suggest that these people look at employment with another company. It's quite a different thing from what's been characterized.

Mr. Vic Toews: The newspaper quotes the Liberal member as chiding the officers for not backing the minister. What he said was: “If my employees tried to hang me out to dry on the national stage, I'd just say, look, you're working in the wrong company.” These are witnesses we've called in front of this committee. I've no reason to believe these witnesses were anything but truthful and forthright with this committee. For a member of the House to suggest that because they didn't back the minister, they're working for the wrong company undermines, in my opinion, the integrity of the process that you, sir, are referring to. I'd like your comments on that. Is there anything that can be done? I'm not suggesting there should be something done, I'm just asking whether there is something that can be done.

¹ (1550)

Mr. Joseph Maingot: Mr. Chairman, do I understand that it took place in the committee?

The Chair: No, it was outside.

Mr. Joseph Maingot: Someone would have to raise it in the House if they wanted to get the attention of the House, and it wouldn't be a question of unparliamentary behaviour, but whether what he said represents an affront to Parliament. That would have to be raised in the House, not here.

Mr. Vic Toews: All right. This refers to the integrity of the process. I'm a little new to the process here in the federal Parliament. How does a committee ensure now that the witnesses who appear in front of it are not intimidated by anyone out there, aside from these comments? That's what concerns me. Does the contempt, if that amounts to contempt, have to be in the face of the committee before the committee would have jurisdiction to deal with this issue?

Mr. Joseph Maingot: Your mandate is what was sent to you. That's what you have before you, and you can interpret that as you see fit. If something is said about your proceedings here, naturally, you'll be prompted to talk about it, but to do something about it, it would have to be in the House. Similarly, if someone said something here in the committee, you'd have to first decide what you want to do about it as a committee, and then if you agree that the chairman should report it, the chairman would report it, and then the House would decide.

Mr. Vic Toews: Does it require the consent of the committee to initiate that type of matter with the Speaker? As you know, as long as a subject is before a committee, the Speaker will tell the member, that's a matter before the committee, and therefore we won't hear it. My concern is what I hear the witness saying as well, that this isn't in the face of the committee, and therefore it should go to the House. The process is being undermined continually by that kind of falling between the cracks, where the House assumes it's the committee's jurisdiction, and the committee refuses to get involved, because the contempt isn't in the face of the committee. That's what concerns me here, Mr. Chair.

¹ (1555)

The Chair: Mr. Maingot.

Mr. Joseph Maingot: Once again, you have the mandate for the committee, and if something is said outside the precincts here by a third party that may amount to a contempt, the Speaker of the House must decide whether it's a prima facie contempt, and then the House has to decide whether it's going to go to a committee. It could be raised here, because this is the forum where you talk about matters as you see fit, but as for doing something about it, you wouldn't get anywhere in the House.

Mr. Vic Toews: This is very helpful, I think, in regard to future proceedings, if not even this proceeding. If a witness were called to this committee to provide evidence and in the course of giving evidence, said, just on the way in here I was told in no uncertain terms that my testimony should be x, as opposed to what I believe it to be, the only remedy would be either the committee or a member of this committee referring that matter to the House.

Mr. Joseph Maingot: The first point would be to raise it here, then decide as a committee to give the power to the chairman to refer it to the House. There have been instances where the Speaker has seen fit to accept a question of privilege from a committee without a report on a very serious matter. It has been done in the past. A number of years ago the majority members weren't happy at all with what a witness said, and they expunged his testimony. That was raised in the House by a member. The Speaker at that time, under advice, ruled that it was really a matter of the powers of the committee to decide what to print and what not to print.

I think it is better characterized as a matter of freedom of speech. Even the Supreme Court of Canada has said the purpose of freedom of speech is to bring forth abuses you find in the system. That case was raised, and the Speaker didn't accept it. The Speaker has accepted such things in the past, but with unusual and serious matters.

The Chair: We must move on. I feel constrained--and we are already two minutes over on this one--by this ten minute rule, and I've tried to keep to it. This would normally have been an interjection. I've been a little bit curt on some of these things because if you work out eight times ten, that's 80 minutes. I've allowed all sorts of unusual points of order to let people get in, but I just can't extend it that much, and I did extend that one two minutes.

So it's Joe Jordan, Pierre Brien, Geoff Regan, Yvon Godin, Jacques Saada, and Jay Hill.

Mr. Joe Jordan (Leeds--Grenville, Lib.): Thank you, Mr. Chair, and welcome, Mr. Maingot.

To pick up on the hypothetical example the previous questioner talked about, this committee really has no power to make decisions, is that correct?

Mr. Joseph Maingot: This committee has power to interpret its mandate and to report to the House.

Mr. Joe Jordan: And then the House makes the final judgment.

Mr. Joseph Maingot: That's right, yes.

Mr. Joe Jordan: And one of the reasons breaches of privilege or contempts of the dignity of the House are brought to the House of Commons is that the Speaker then will determine whether, prima facie, a breach exists. It is then referred to this committee for further study. Is that the process?

Mr. Joseph Maingot: Yes. Members have certain privileges, and the principal one is freedom of speech. There are three others that are very rarely relied upon. You can't be compelled to be a witness in a case unless you are a defendant or a plaintiff in that case or unless you're the accused, and you can't be compelled to attend as a member of a jury. A member is trying to protect himself by his freedom of speech, and of course, a member speaks outside the House, outside proceedings, at his peril.

º (1600)

Mr. Joe Jordan: I guess one of the rationales for that process is that a member of Parliament who's been accused of breaching privilege has certain rights, and one of the rights is to know they're being charged with this offence and to defend themselves, is it not?

Mr. Joseph Maingot: Yes, this is what I spoke about earlier. Usually in a privilege case, the member brings out material that on the face of it, in the eyes of the Speaker, represents what could be a contempt.

Mr. Joe Jordan: So given the reference this committee has on the issue of the Minister of National Defence, is it fair to say that the mentioning and the discussion of another member's actions really is a potential breach of that member's privileges, and if people have a problem with comments by a member, they should bring it up in the House?

Mr. Joseph Maingot: I think I answered that question.

Mr. Joe Jordan: Yes.

Mr. Maingot, you talked about the use of unparliamentary language when making a charge in the House, and you pointed out that the expression “deliberately misleading the House” is one that, in normal course of debate, I would not be able to use in the House of Commons, is that correct?

Mr. Joseph Maingot: That's correct.

Mr. Joe Jordan: But if I am bringing to the attention of the Speaker what I am alleging is a breach of privilege or contempt of the dignity of Parliament, I'm allowed to use that phrase, am I not?

Mr. Joseph Maingot: No. According to traditional authorities, if you're going to talk about the conduct of a member, you have to raise that on a specific motion whereon the House can make a decision. In your motion you actually say that, whereas you don't see in a question of privilege actual matters that are unparliamentary. It's for the committee to eventually decide it on the facts that are raised.

Mr. Joe Jordan: So once the committee is charged with the reference to examine the facts, is it then acceptable for MPs to send out press releases that say the minister deliberately misled the House? Is the phrase then allowed to be used?

Mr. Joseph Maingot: What a person says outside the House he says at his peril. If a member says something that is derogatory and libellous, he or she is subject to the laws of libel.

Mr. Joe Jordan: Is there any time when a member's statements outside the House can be viewed as an affront to the dignity of Parliament?

Mr. Joseph Maingot: Oh, yes, it's happened in the past. You're talking about the particular example of a person who has spoken as a witness, after which a member, outside the House, decides, through a press release, to make his comments about that. That would probably be raised in the House, and it would be incumbent upon the Speaker to decide whether that represents an affront. It wouldn't be unparliamentary, because it was said outside the House, but if that person was commenting on what a witness before the committee had said, reflecting on it in a derogatory fashion, I don't know what the Speaker might say about that. He might feel that it should go further, but as I say, that person would also be subject to the laws of libel and slander.

Mr. Joe Jordan: I know it varies by country, but what's the practice in Canada, in your view, if a point of privilege, such as the one I've described, is brought to the floor of the House, and simultaneously, the action for libel is undertaken? Does that automatically disqualify it as a point of privilege, or is there a precedent for the two parallel streams operating?

Mr. Joseph Maingot: In the U.K., if it were brought to the attention of the Speaker that a person had sued over these comments, they would not permit a matter to go forward in the House, whereas in Canada that is not the case. That has not been the case in the past.

Mr. Joe Jordan: Thank you very much.

The Chair: Pierre Brien, Geoff Regan, and then Yvon Godin.

[Translation]

Mr. Pierre Brien (Témiscamingue, BQ): Hello, Mr. Maingot.

Several times, in the questions which have been put to the witnesses, I had the feeling that several people were trying to follow the procedures of the New Zealand test, as a criterion for demonstrating contempt. I had the feeling that there was a certain degree of support, that some were following the New Zealand approach. I am sure you are familiar with it but I will repeat it for you. To accuse a member of contempt, there must be two elements: first, the statement must be, in effect, misleading and, secondly, it must be established that the member knew, at the moment of making the statement, that it was inaccurate and that by making it, he intended to mislead the House.

Does this seem to you to be a realistic route to demonstrating whether or not there was contempt?

º (1605)

Mr. Joseph Maingot: First of all, if someone is claiming that another has misled the House, this is not an expression... It is discourteous or unparliamentary.

I want to make sure that I understand your question. Are you talking about the issue of “deliberately”?

Mr. Pierre Brien: Yes, that's right.

Mr. Joseph Maingot: As I said, “deliberately” is not allowed in the House, except for putting it in a separate motion. That rarely happens. The last time it happened was in 1956, when the Speaker himself was attacked in that manner. It was a written motion. Notice was given and the motion was raised in the House. The Speaker, taking into account the importance of the subject, gave it precedence. Otherwise, the expression “deliberately misled the House” is a discourteous or unparliamentary expression. We cannot use it in the House.

Mr. Pierre Brien: How do you carry out the test to show that someone deliberately misled the House? How do you show intent?

Mr. Joseph Maingot: By asking questions, by making enquiries like this one. That's what you do.

Mr. Pierre Brien: Some people tell us that the reference, in New Zealand, imposes the following test: to show that there was contempt, you would first have to show that there was a misleading statement and second, that the member who made the misleading statement knew it was misleading when he said it, that it was inaccurate and that by making that statement, the member intended to mislead the House.

The thing I have trouble understanding in that... It's a test of logic. How is it possible to make a statement that one knows to be inaccurate? So, to me, there is automatically an intention to mislead.

Is it possible to make a false statement, knowing it is false and not have the intention to mislead?

Mr. Joseph Maingot: As you say, it is a question of logic. It is very rare for anyone to admit that they have deliberately misled the House. It happened in England in 1963. The person did it and the person decided to admit it and it was said that this represented contempt. But it is very rare.

The goal of the committee, its mandate, is to ask questions. You, while speaking to witnesses, by asking them questions and using your common sense on public matters, must make your decision, say what you think. At that moment, you are behind closed doors and you make your decision, unless the person admits to having done that. Otherwise, it is just like in court. You ask questions and the adversary tries to mislead. So, that is how we do it.

Mr. Pierre Brien: Perfect. I like that explanation.

So, for all the statements, it is up to us to make a judgment and not simply take the word of the member accused of contempt and who is saying that he is sorry, that he did not mean...

Mr. Joseph Maingot: But we must not forget that the House has to accept it. If a member says he did not intend to mislead, we accept it.

Mr. Pierre Brien: Starting from there, how do you prove contempt?

º (1610)

Mr. Joseph Maingot: What I mean, is that, that's in the House. It's also the same thing: this person will say that, but you also ask questions, don't you? You are the one who makes the decision, but I am saying that in the House, and even here, but especially in the House, when a member says something, you accept it. Those are the rules of the game in parliamentary procedures. You accept what the member says: he was in error, that it is a mistake, that it is not his fault, that he apologizes for one reason or other.

In the House, it has happened before that members, especially ministers, answer questions and, the next day or two days later, they apologize, they admit they were in error.

Mr. Pierre Brien: Let us take the example of a parliamentarian who, in the context of a debate in which he has been involved several times, intervenes regularly and describes a situation as being hypothetical while he knows the situation did happen. In what category would we classify such affirmations?

It is not, strictly speaking, a false statement, but nor is it telling the truth. For example, I could speak of a situation as a probability, a possibility, while I know very well that it has already happened. How should that be taken into consideration?

Mr. Joseph Maingot: You speak of a hypothetical question. It is only in the brain of the gentleman who asked... It is difficult to answer a question like that.

Mr. Pierre Brien: Let us take, for example, the current case: it is very concrete. Monday night, the Minister of Defence took part in an emergency debate during which there were discussions of larger issues, but when the prisoner situation was brought up, he spoke using the future tense, “when we will take”, even though at that moment, this information was available to him, he knew that there were some already. Properly speaking, it is not like getting the date wrong or not giving the right date; it is speaking in the future about a situation that he knew had already taken place. Can we also classify that as a statement which tended to mislead the House?

Mr. Joseph Maingot: That's rhetoric: a question for debate, for argument. It is up to you to decide, when you hear that, especially what happened here, in the House, since that is your mandate. It is up to you to decide. Your reasons for making a decision come from various sectors. It is up to you to decide, to put it all together and to ask yourself what the committee's decision should be.

The Chair: Yes, it's your turn, Michel. You have less than two minutes.

Mr. Michel Guimond (Beauport--Montmorency--Côte-de-Beaupré--Île-d'Orléans, BQ): Mr. Maingot, you are a specialist on the question of privilege. I have the second edition of your book, Parliamentary Privilege in Canada, here and, in any event, our Clerk of the House, in his testimony before us, referred to your definition of parliamentary privilege.

Have you read the notes in front of you about the Clerk's testimony, his presentation?

Mr. Joseph Maingot: No, sir.

Mr. Michel Guimond: No, all right. I would like to have your opinion. The Clerk ended by saying: “I humbly recommend to the members of the committee to establish the facts first and to determine if the House was misled or obstructed in any way whatsoever...”. The Clerk, in his interpretation of the test to be met, did not refer to intent. He spoke of facts and whether or not there was inaccuracy relative to the facts. Is my reading correct?

The Chair: A short answer, please, Mr. Maingot.

Mr. Joseph Maingot: I think I understood what you were saying. Perhaps I will try to reply in English.

[English]

That comes out of the Speaker's ruling. His concern was that there were conflicting statements, but they were conflicting statements on a very serious matter of government policy. It's correct, because it is incumbent upon the members to decide what is, in their view, a contempt. A contempt can be where you feel a person intentionally misled or the conflicting statements were such as reflected on the dignity of the House: was it an affront to have done that?

º (1615)

[Translation]

I do not know if my explanation was sufficiently clear, Mr. Guimond.

[English]

The Chair: Geoff Regan.

Mr. Geoff Regan: Thank you, Mr. Chairman, and thank you, Mr. Maingot, for joining us.

It is obviously a serious matter when a member of the House has been accused of deliberately making a misleading statement to the House. In your view, what is the standard of proof in a case like this?

Mr. Joseph Maingot: That's an interesting question.

Mr. Geoff Regan: How high is the bar?

Mr. Joseph Maingot: In England 180 years ago, when they brought to the attention of Parliament the conduct of a judge, they said in the House, the rules of evidence don't apply, it's your rules here that apply. So the bar can be raised higher or lower, as you see fit.

There was that same sort of thing in Canada in 1967. It didn't get that far, that person resigned. Here you're a court for purposes of privilege, with the powers of the House, but the rules of evidence you find in courts don't apply here. It's a question of public policy.

Mr. Geoff Regan: In your view, does the Canadian Charter of Rights and Freedoms apply, for instance, to the rights of the person accused in this case and the rights of witnesses?

Mr. Joseph Maingot: That's another interesting question. I dealt with that in the book, and in my view, based on what the Supreme Court of Canada said in a decision from Nova Scotia, the House only has to reckon with the charter if they're going to arrest, detain, or commit someone. Otherwise, it's a matter of internal proceedings and it's up to you to decide.

Mr. Geoff Regan: What is the responsibility of members of the committee looking at a question of privilege or a charge of contempt in respect of not prejudging the matter? If they make comments indicating that they have prejudged the matter, what is your view of that?

Mr. Joseph Maingot: It's human nature to do that sort of thing, but eventually, you sit down and look at all the facts and decide as a body, putting everything together. Even though comments have been made by members, it's still a question of deciding, of looking at everything that's been said and done. You govern yourselves according to your own integrity.

Mr. Geoff Regan: So that would apply also to the evidentiary rules? Doesn't the person who's accused have a right to see that you're going to deal with matters that are relevant in this committee?

º (1620)

Mr. Joseph Maingot: You'd want to do that, and of course, you want to give the person an opportunity to be heard, under the rules of natural justice. But all these rules are up to you. If a member raises something and somebody doesn't like it, you ask the Speaker to decide. If they don't like what the Speaker decides, they can appeal it, and then that's it.

Mr. Geoff Regan: If I can ask a very general question, what in your view are the bounds of relevance in a case like this? You perhaps have been following the case. What's your sense of what the limits of relevance are?

Mr. Joseph Maingot: That's not my job, with all due respect, it's up to you. You're all intelligent gentlemen, and it's up to you to make the decision. Common sense dictates, and I'm sure that will eventually prevail.

Mr. Geoff Regan: In this case the member against whom the charge has been brought, of course, is a minister. Should we be at all concerned with the role of the minister as a minister in regard to the administrative duties and how he performs his task?

Mr. Joseph Maingot: I think you should look at your mandate and see how you would interpret that. Privilege involves the member in parliamentary proceedings, it doesn't include something outside. A member's conduct, whether inside or outside, can be brought to the attention of the House, and it could be a matter of contempt. But with a person as a minister, a whip, or a parliamentary secretary, the duties have nothing to do with questions of privilege in the committee.

Mr. Geoff Regan: Mr. Chairman, that's it for now.

The Chair: Thank you very much.

Yvon Godin, then Jacques Saada, then Jay Hill.

[Translation]

Mr. Yvon Godin (Acadie--Bathurst, NDP): Thank you, Mr. Chair.

If we look at this specific case and the questions that were asked earlier, the real question, is to determine the mandate of this committee and just how far we are going to go.

Is the parliamentary committee not master of its actions? Can it not go as far as it needs to go to try and find the answer to all this? As you said, we can not go and look inside the head of another person. So, we have to examine all the consequences or the things which happened to try and find the answer. For example, in the present case, it is the Minister who is involved. We cannot go look inside his head. It is not like a computer where we click a mouse to get an answer.

So, can the committee continue to do what it is currently doing? I think you've followed the procedures we have undertaken. They are the procedures to be followed. At the end of all that, Mr. Chair, the committee was able to formulate a recommendation for the House of Commons. That is how I see the responsibility of this committee. I would like to hear from the witness on that.

Mr. Joseph Maingot: The question of committee procedures is up to you to decide. The Honourable Member asked me some questions regarding the relevance of questions, that is also up to you to decide. You have the responsibility of interpreting your mandate. It is also up to you to decide how to act. You still have at your disposal the Clerk of the Committee and the researcher, who knows what happened in the past. It is a matter of looking at the mandate.

You have already invited witnesses. You have asked questions relating to your mandate. You must decide if those questions are relevant. If a member does not agree, he appeals to the Chair. But, it is up to you to decide that.

At the same time, you will speak to your colleague outside the committee. It is up to you to decide how to act. This is a mini-House of Commons here, but there are also fairly obvious differences.

I do not know if I answered your question properly, Mr. Godin, but, in general, it is up to you to first interpret the committee's mandate. In one way, you have already interpreted it since you invited witnesses to appear. You have asked some questions It is now up to you to decide what to do with these questions in relationship to the committee's mandate. It is up to you to look at that and to make a decision. It is up to you to decide if what the individual did represents or does not represent a contempt.

º (1625)

Mr. Yvon Godin: Mr. Chair, it is then up to the committee to decide on the procedure, to decide what to do, to ask questions of the witnesses to try to find an answer to all that in order that the Committee can be in a position to make recommendations to the House. Each person may ask questions as they see fit. But, at the end of it all, the members of the committee must sit down together, behind closed doors, in order to be able to write a recommendation.

The Speaker of the House deemed the case to be serious enough that he did not make the decision himself. He therefore sent the question to committee. In view of the facts which he had in front of him and the various conflict of statements, he decided to sent it to committee because it was too serious. So, it is up to the committee to make a decision, as it is now doing.

Mr. Joseph Maingot: That is not the only thing. There was also a vote and the members were in agreement that it should be sent here, to committee.

Mr. Yvon Godin: Yes, that is correct. Now, it's the same thing. I do not think that it is outside our mandate. It seems that, on the other side of the table--we won't say on the other side of the House--, they are trying to say that we are going too far with our questions, that it is outside the issue or the real problem, outside the subject.

Everything relates to the dates. We have already spend a couple of weeks on that and now, the longer things go on, the dates change continually depending on the group that comes in here. We have one group that says one thing and the next day, we receive information that we are no longer talking about the same date. This very morning, we were meeting, asking questions of a witness, when a fax arrived from the United States. This person was also saying that they made a mistake on the date. So, all the facts are starting to look funny.

All this may give us a way to proceed. We can't see into the head of the Minister, but we can make a recommendation. We can say that we have enough facts to state that, without doubt, the testimony makes no sense to us and, consequently, we recommend that there be disciplinary measures.

If a disciplinary measure were imposed, Mr. Chair, what measure could we recommend in this case? What kind of disciplinary measure could we recommend to the Speaker?

Mr. Joseph Maingot: You would not make your recommendation to the Speaker, but to the House.

It is up to you to decide if that represents a contempt or if it was bad judgment. There are all kinds of things you can say. It is rare for committee reports to be debated in the House.

Mr. Yvon Godin: Mr. Chair, I think that in 135 years, no report has been debated. So, we know it is rare. It has never happened.

But, in the present case, there seems to be something. What we are trying to find out is if, to your knowledge, in other countries, something similar has ever happened, that is, a case where the individual acted in a deliberate manner, or it was thought that they acted in a deliberate manner, and where there was a request for a disciplinary measure to be imposed. Does the committee have the power to propose that a disciplinary measure be imposed?

Mr. Joseph Maingot: Yes.

[English]

The Chair: Jacques Saada, Jay Hill, then Marlene Catterall.

[Translation]

Mr. Jacques Saada (Brossard--La Prairie, Lib.): Thank you, Mr. Chair.

Mr. Maingot, thank you for your presence among us.

Allow me a brief, very quick introduction. Mr. Godin, my colleague across the table, deplored the fact that we are always denouncing the opposition for being outside the mandate. It is hardly my fault if the opposition is always outside the mandate.

I have four simple questions for you. Here is my first one. In your book, on page 227 of the English version, you allude briefly - it is not very complicated - to the issue of the benefit of the doubt. You say that members - I assume you mean Members of Parliament - have the benefit of the doubt. In your mind, should a member and a minister be treated equally when it is a matter of benefit of the doubt.

º (1630)

Mr. Joseph Maingot: If I remember correctly, in the past, the Speaker always said that members were to be given the benefit of the doubt. What does that mean? As you mentioned on page... In this case, I am trying to remember...

Mr. Joseph Maingot: The question I am asking you is very simple, Mr. Maingot. I just want to know if, when we are speaking of the benefit of the doubt, that it applies without distinction to all members of the House of Commons, or is there a particular statute regarding this for members of the Cabinet as compared to ordinary members.

Mr. Joseph Maingot: All members enjoy the same benefit of the doubt.

Mr. Jacques Saada: Thank you.

I'll go on to the second matter. We are speaking here of the balance of probabilities as this is the criterion. When we speak of balance of probabilities, I seem to remember, according to my notes and not a specific text--for which I apologize to Mr. Walsh--that the more serious the accusation against a member, the stronger the proof had to be. Do you share this opinion?

Mr. Joseph Maingot: But, proof must be proof, to prove something. As for the question of reasonable doubt or balance of probabilities, as you know, that depends on whether it is a criminal or civil matter. But that is up to you to decide. It is difficult for me to tell you what you should do in this case. It is up to you to decide, to look at what happened. Should we give the benefit of the doubt or not?

Mr. Jacques Saada: I understand. The question I was asking was only intended to find out if you agreed with the principle that the more serious the accusation is, the more important it is that the evidence be irrefutable.

Mr. Joseph Maingot: The problem I have with that is, you change the proof. It has to be the necessary proof, whether the matter be serious or not.

Mr. Jacques Saada: I understand. There is a connection to my next question.

Mr. Joseph Maingot: When someone is accused of murder, for example, it is very serious. The proof is a,b,c. When someone is accused of hitting someone, of assault, the proof is a,b,c.

Mr. Jacques Saada: I understand, but the reason I ask that question... Actually, it is connected. I think that we all agree on the fact that there was a contradiction in his statements. Nobody disputes that. The minister himself admitted it. So, that isn't the question, that is not what we are examining. We are examining the question of intent and we all agree that it is extremely difficult to demonstrate intent in any way.

You took the 1963 case, in Great Britain. I think you were alluding to the case of John Profumo who had actually admitted...But there, we are talking about things that are extremely fuzzy, sometimes even suggestive. There are all sorts of considerations that come into play. So, as it is extremely difficult to produce more tangible evidence, there has to be a certain degree of comfort in the soundness of the proof which has been established, one way or the other. That is the reason I was asking that question, to find out if, in fact, there was a direct relationship between a contempt, because that is what we are talking about... An charge of contempt against a minister, is, after all, important. I was asking the question in order to learn if, in your opinion, it required irrefutable proof or if, all things considered, regardless of the consequences and who is involved, an approximate feeling of guilt should suffice.

[English]

Mr. Joseph Maingot: Mr. Chairman, this is where this committee differs from a traditional court. Here you're talking about matters of public policy, and the decision you're going to make will be on a question involving public policy. I respectfully suggest that when you come to meet in camera, it's matters of public policy that will be very important to you as you, with your collective wisdom, reach a decision. That's the only way I can really reply to that.

[Translation]

Mr. Jacques Saada: My colleague, Pierre Brien, alluded to the New Zealand test and, indeed, he correctly indicated that there has to be, on one hand, a misleading statement and, on the other hand, one has to show intent, and those two elements brought together lead to a conclusion of contempt.

I asked the Clerk of the House the same question but I didn't get any answer. I mean, I got an answer but it wasn't very encouraging. Do the consequences of the action have any importance to our analysis? I mean by that, if there is indeed contempt and that the contempt has no consequences for the parliamentarians, apart from the principle...I am not talking about the principle. In other words, if it does not prevent parliamentarians from carrying out their work properly, should this not be taken into account in the evaluation of the situation, unlike the New Zealand example where they focus exclusively on the misleading statement and the intent?

Should not the consequences, the seriousness of the consequences, be one of the factors?

º (1635)

Mr. Joseph Maingot: But the consequences are, that if you are responsible for a contempt of Parliament, of the House, you affect the dignity of the House of Commons. This has consequences because, eventually, people won't respect the House, because we allow such an affront. So, in that sense, there are consequences. In my opinion, it is the same thing for all contempts. There are some contempts that are more serious than others, but the reason they have the power to punish someone who is guilty of contempt, for an affront to the dignity of the House, is that the House is responsible for protecting its integrity, its authority, its dignity. Each time that you fail to do so and that you allow something to happen, it reduces the authority of the House and the respect that citizens have for the House.

Mr. Jacques Saada: Thank you. That's all.

[English]

The Chair: Jay Hill, then Marlene Catterall.

Mr. Jay Hill (Prince George--Peace River, PC/DR): Thank you, Mr. Chairman, and welcome, Mr. Maingot.

I want to begin by asking whether you have followed the events of this inquiry over the last few days.

Mr. Joseph Maingot: I've followed them in the newspaper.

Mr. Jay Hill: Do you feel you have a pretty good understanding of the events and the testimony that has been presented here? It's quite clear now, from the testimony of Vice-Admiral Maddison and the Chief of Defence Staff, General Henault, that the minister was informed and knew about the JTF-2 taking prisoners on January 21, when he was briefed in Mexico.

Mr. Geoff Regan: On a point or order, Mr. Chairman, clearly, those witnesses could not make any conclusions about what the minister knew and didn't know and didn't understand.

The Chair: I hear that, Jay hears that, and Mr. Maingot hears that. My view is that Mr. Hill can follow any line of reasoning he likes. Equally, Mr. Maingot, you can say you don't want to reply, you want to reply in part, or whatever.

Jay, continue.

Mr. Jay Hill: Barring that interruption, Mr. Chairman, the fact of the matter is that Vice-Admiral Maddison, in his testimony here, expressed his opinion that the briefing was crystal clear on January 21, when he briefed the minister over the telephone. Subsequently, when he briefed him on January 25, he was sure the message had got through that indeed, prisoners had been taken. Are you aware of the testimony?

º (1640)

Mr. Joseph Maingot: Yes.

Mr. Jay Hill: Okay, thank you.

You also made reference to the Profumo case. That's the case in England where the member of Parliament actually confessed to deliberately misleading the House, is it not?

Mr. Joseph Maingot: Yes.

Mr. Jay Hill: Okay.

I'm going to read you a quote that is in today's National Post, made by the defence minister yesterday:

It did not take me three times, three briefings, to understand the point. I understood the point the first time.

It's a direct quotation. Given the chain of events and the testimony we've heard over the last number of days, isn't that an admission that he deliberately misled the House of Commons, and therefore it constitutes a confession of his intent to mislead the House? He's saying he got it the first time around, in other words, he understood that we'd taken prisoners on January 21, and yet that's not the statement he made in the House of Commons on January 29.

The Chair: I understand what you're asking, and I understand that Mr. Maingot knows better than we do what's proper and what's not proper here, but I want to urge you all to try not to put an expert witness in a position of commenting on what's right and what's wrong, the moral aspects, if you like, of what we're doing. That's all I can say. We've been very free in these hearings, and so we should be. And my remarks are not taken out of your time.

Michel Guimond.

[Translation]

Mr. Michel Guimond: I have a point of order, Mr. Chair. I don't want to criticize the way you are handling the debates, but I think, given that we have an expert witness, we shouldn't after all put him, consider him on a basis...

[English]

The Chair: Michel, I'm talking about courtesy to a witness. I'm talking about putting a witness in what is essentially an embarrassing situation. I know he knows more than I do about procedure.

Jay, you can have your rebuttal.

Mr. Jay Hill: Thank you, Mr. Chairman.

With all due respect for the chair and what you're endeavouring to do, I'm not trying to put anybody in an embarrassing situation. What we're attempting to do here is ask a highly respected witness before this committee what would constitute proof. That's supposedly why we're all here, to find out whether this was deliberate or not. The question I am asking, Mr. Chairman, has to do with what would constitute that proof. We heard from Mr. Saada in his questioning about a heavier burden of evidence. I wrote it down exactly the way he said it. What constitutes burden of evidence? What I'm trying to drive at here, Mr. Chairman, is what constitutes a confession.

The Chair: If that is your question, it's fine. You were reciting a particular quote, and then you were going towards saying, do you think that proves the case or not? If you're going to say, there's an example, and ask what is the burden of proof--and we've been discussing burden of proof over here--that's fine with me.

Mr. Jay Hill: I don't want to get into an argument with the chair, because I know I'll lose, as you bring down the gavel, not me, but I'm asking what would constitute a confession. The minister's defence is that he didn't know. He said here that because the media were on his case, it took three times. The witnesses said that a light went on on the 29th, a click, and a number of other descriptions of what took place. But he is quoted as saying now that he understood the point the first time. If he understood the point the first time, isn't that a confession that he misled the House?

The Chair: I followed you the first time. The witness followed you the first time. Jay, let's proceed to the witness.

Mr. Maingot, you've heard this discussion. You've heard my view, you've heard the member's view. I'd be grateful for your comments on the member's remarks and his point about burden of proof.

Mr. Joseph Maingot: Yes, well, nothing ventured, nothing gained for Mr. Hill.

If I were a member of the committee, I would have my views, but my role here doesn't go that far, and anyway, my view isn't important. What's important is the view of the members. It's not my realm, Mr. Hill, to comment on the evidence. That's your job.

º (1645)

Mr. Jay Hill: Is it impossible, then, to prove whether someone deliberately intended to mislead the House? The key word is deliberately. I said this at the start. Are we wasting our time here and wasting a lot of taxpayers' money, if it's impossible to prove, unless that individual actually stands up and says the words, I confess?

Mr. Joseph Maingot: You have to assess the witnesses, and then decide in your own hearts whether you feel that person has intentionally misled. It's up to you to work that out. That's your job. That's the responsibility the Speaker has placed upon you through the House. It's not my function to give an opinion on that.

Mr. Jay Hill: As you are an expert in this field, I'll give you one more scenario and ask for your opinion as to whether this would constitute a contempt of the House or something similar. We've been told by a number of sources that the minister was informed immediately after his statements on January 29 that he had made an erroneous statement in the House of Commons. Does it represent a contempt of the House for the minister to have not availed himself of the first opportunity to correct the record? He could have returned to the House that day. He had the opportunity the next day to stand, immediately upon his entry into the House, and correct the record. Instead, he chose to wait until the sixth question in question period to correct the record.

Mr. Joseph Maingot: As I said, it's not for me to make that decision. You have to examine, should you take that approach, what a reasonable person would have done under those circumstances. There are other criteria you can think of applying when you discuss it among yourselves. What should be the responsibility of a person under those circumstances? What can you expect of a member of the House of Commons? What do you expect your colleague to do under those circumstances? It's really something you have to decide yourselves. I'm not here to give my views.

The Chair: Two minutes of injury time, Jay.

Mr. Jay Hill: Thank you, Mr. Chairman.

You have far more expertise in this area than I have. I've only got the experience of eight years in the Chamber. As an MP for eight years, I've seen many times where ministers have made a mistake, a mistake of memory or some other error, or they didn't have the right information, whatever. Minister Herb Gray is one that sticks in my mind as immediately returning to the House and correcting it, sometimes even correcting it before question period ended; he would stand up right at the end on a point of order and correct his statements. What I'm asking is, would it be a contempt of the House to not avail yourself at the first opportunity, once it's been clearly revealed to you that you made a mistake.

Mr. Joseph Maingot: Mr. Chairman, since this member has answered that question, because he has experience of what other ministers have done under similar circumstances, you can ask why it wasn't done as was done in the past. So it's up to you to take all that into consideration to help you decide.

The Chair: Marlene Jennings.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce--Lachine, Lib.): Thank you, Mr. Chair. Thank you, Mr. Maingot.

This is the first time I've sat in on this committee, but I do have a little experience in presiding over public inquiries into allegations of police misconduct, where it's a quasi-judicial body, and therefore preponderance of the evidence or balance of probabilities is the rule. What I'm hearing from you today is that this committee has the authority, and actually the duty, to interpret the mandate it's been given by the Speaker and to determine what level of evidence it should apply to the allegations that have been made of an MP's having possibly committed contempt or an affront to the dignity of Parliament. And because the role of Parliament is so important, this committee should determine itself the level of evidence or proof it's going to require to make a finding against the member whose conduct is the issue of the inquiry. Am I correct?

º (1650)

Mr. Joseph Maingot: I can't disagree with that.

Mrs. Marlene Jennings: Therefore, this committee should first determine how important is the role and dignity of Parliament. It can use your Parliamentary Privilege in Canada, it can use other precedents to make that determination. Then, if there is an affront, how does one go about deciding, as a committee, that there is in fact an affront, and what level of proof is needed in order to make that determination? To arrive at that determination, the committee will determine what factors, elements, and facts need to be taken into consideration. Is that correct?

Mr. Joseph Maingot: I can't disagree with what you're saying, Mrs. Jennings. You're trying to say, what is to be expected of a member under the circumstances that have been described to you in various ways? What should the House expect of a member in that situation?

Mrs. Marlene Jennings: If this committee should decide that the role and the dignity of Parliament are so important, to make a determination that an MP has committed such an egregious act, the highest standard of evidence or proof should be required before the committee makes such a determination. The committee could decide otherwise, but should the committee come to that decision, would that be proper?

Mr. Joseph Maingot: It sounds like a very good idea to set out what the standards should be for a member under these particular circumstances. I mention that, because I just remembered a case that took place many years ago. A member of Parliament was charged outside with having accepted money for doing something. The court of first instance was very lenient, according to the Court of Appeal. The Court of Appeal provided a very serious penalty for that person and set out that the member's responsibilities are such that you expect a very high standard of conduct. From that point of view, it would be very good if this committee could set out the standard to be expected of a member under these particular circumstances, bearing in mind what Mr. Hill said about what Mr. Gray had done. All of that is important, because you put it on record, and you have a standard to look up to.

º (1655)

Mrs. Marlene Jennings: It would provide, as you mentioned, a standard for the future. My understanding is that there isn't any standard. This may be the first time that this type of situation has arisen--if I'm mistaken, please correct me--and therefore there really aren't any rules. There haven't been any rules and regulations determined specifically in this type of instance, and because it's the committee that has the mandate from the Speaker, who found there was a reason to send it to committee, it's the committee that will--

Mr. Geoff Regan: On a point of information, Mr. Chairman, as the member is new to the committee, she is not aware that the Speaker did not find that there was a prima facie case of contempt in this case.

Mrs. Marlene Jennings: Thank you, I appreciate that correction.

In your testimony here, Mr. Maingot, you've said it's this committee that will determine the standard of proof it feels is required to make a determination, it's this committee that will determine the gravity of the act under discussion. Basically, this committee is free.

Mr. Joseph Maingot: This committee decides its rules. The rules usually applied are the same rules as in the past.

The question of prima facie is very interesting. You find in all the authorities that the Speaker, after he or she finds a prima facie case, puts it to the House. In this case those words were not actually used, but that is the basis for a Speaker to rule that he or she finds a prima facie case. These cases are all different in their own little special way. This one is different because you're not just talking about someone having misled the House. The speaker was concerned about the conflicting statements, and he added in his ruling a comment on the importance of it from a national point of view. So in that way it's different. Nothing like that has come up. There have been conflicting statements in the House, but usually, a minister in the past has said, I'm sorry, yesterday I made a mistake.

Mrs. Marlene Jennings: Thank you very much. I have no further questions.

The Chair: Leon Benoit, Michel Guimond, Yvon Godin, and then Jay Hill.

Mr. Leon Benoit (Lakeland, Canadian Alliance): Thank you, Mr. Chair, and thank you, Mr. Maingot, for being here today.

I'd like to ask you some questions, before I get into another line, about the swearing in of witnesses before this committee. Could the swearing of a witness allow for any additional penalties should a witness be found to be misleading the committee, lying, or withholding information?

Mr. Joseph Maingot: It's a contempt of Parliament for someone to lie in their evidence.

Mr. Leon Benoit: It wouldn't make any difference, then, whether the person is sworn or they're a witness at the committee without having been sworn?

Mr. Joseph Maingot: No. The difference would be that if you were sworn, you could end up in a criminal court. I think I'm correct in saying that.

Mr. Leon Benoit: Do you think that swearing witnesses might have an impact in putting added pressure on a witness, or rather in giving them more leeway, as they are seen as having been sworn? Any authority, for example, a deputy minister or minister, seeing that they're sworn before a committee, might be less likely to withhold some information. Is there any impact in that regard, as far as you can tell?

Mr. Joseph Maingot: In civil and criminal courts the idea of the person swearing is that they will take more seriously what they're saying, but in the House of Commons, if you have a witness, sworn or not sworn, they can be taken to task or held in contempt. It depends on who the witness is. I'm not sworn in. I suppose the fact you're sworn in is an added feature, but they should be aware that if you give evidence before a committee of the House of Commons, you lie at your peril.

» (1700)

Mr. Leon Benoit: Okay.

Regarding contradictory evidence, on an issue related to what Mr. Hill talked about earlier, before this committee Mr. Eggleton made a statement that he'd consulted the Chief of Defence Staff, General Henault, about the treatment of Afghan prisoners beyond the times that--

The Chair: I think we'd agreed they might not have been Afghan prisoners.

Mr. Leon Benoit: Yes, sorry, that's my mistake. They were prisoners taken by the JTF-2 in Afghanistan. That testimony given by the minister was directly refuted by the Chief of Defence Staff in his testimony. There's conflicting evidence there. How does the committee deal with this issue of conflicting evidence?

Mr. Joseph Maingot: It's something members have to resolve. Witnesses have already appeared, you've asked them questions. If you're still not satisfied, you can recall witnesses. Conflicting evidence is not something new in courts. It happens frequently, and the judges decide what to accept and what not to accept.

Mr. Leon Benoit: Would you put any different weight on the testimony of the person who is brought before this committee on some charges, as compared to a witness who's there to give additional information, not facing any possible action by the committee himself?

Mr. Joseph Maingot: That is something that the trier of fact or law takes into account.

Mr. Leon Benoit: Okay. Thank you.

The Chair: Michel Guimond, and then it's my intention, with the permission of the committee, to draw this to a close.

[Translation]

Mr. Michel Guimond: Thank you , Mr. Chair.

Mr. Maingot, we recognize that in this type of case, it is not a criminal offense. There is no principle of criminal law which applies to the case we are looking at. We find ourselves in a matter of parliamentary law or administrative law. This has nothing to do with criminal law. Do you agree with that?

Mr. Joseph Maingot: I agree; there is no recourse to the Criminal Code.

Mr. Michel Guimond: Yes. We recognize that in criminal law, we must prove two elements: on one hand, the actus reus, that is, the actual commission of a criminal act, the fact of having killed someone, having stolen or committed assault. So you have to prove the actus reus. On the other hand, you have to prove the mens rea, that is, the criminal intent. This is why, according to the doctrine of the Canadian Criminal Code, each time it is a matter of a criminal offense, we always find the words “intentionally”, “knowingly”, “voluntarily”.

Is this correct? Is my interpretation correct?

Mr. Joseph Maingot: Yes, one has to show mens rea in criminal cases.

Mr. Michel Guimond: Do you realize that the legislator is not using meaningless words, which is a recognized principle in administrative law.

Mr Joseph Maingot: Yes, Yes

Mr. Michel Guimond: So, you are in agreement. You recognize that the legislator, when a resolution that read as follows was tabled in the House... Because it is on that, Mr. Chair, that the committee should focus its work. By basing ourselves on the resolution that was tabled, starting from the Order of Reference, which reads:

That the charge against the Ministerof National Defence of having made misleading statements in the House be referred to the Standing Committee on Procedure and House Affairs

It actually says: “of making misleading statements in the House”. It does not say for having “intentionally”, “voluntarily”, “knowingly”, or “deliberately”. Is my interpretation correct? One doesn't just mouth meaningless words when one is a legislator. In any case and at least, a legislator does not write meaningless words.

» (1705)

Mr. Joseph Maingot: What I find interesting, is that it was simply decided to attack someone for having misled the House. That does not represent the contempt. It is only if that was done knowingly or deliberately. According to the actual mandate, it is up to you to decide if the House was misled, if that was deliberate or if it was an error in judgment or absent-mindedness. It is up to you to decide from what the witnesses have to tell you, basing yourselves on the way they say it and on the responsibility of each witness.

Mr. Michel Guimond: Yes, but you agree, Mr. Maingot, that we must base ourselves on the Order of Reference. We, the members of the committee, partly draw our powers from the Standing Order but also partly from the Order of Reference which is given to us, at least as relates to the subject under study. What the House asked us to examine, we parliamentarians from all parties, is whether the Minister of Defense misled the House.

Mr. Joseph Maingot: That's it, but...

Mr. Michel Guimond: That's it?

Mr. Joseph Maingot: That's it exactly. But ordinarily...

As I was saying earlier, it is not permitted to say in the House that someone has deliberately misled the House. If the question had been the subject of a motion according to which a member is accused of having deliberately misled the House, the person who made that remark in the House would have to present himself before Parliament to prove it. But that is not the case here.

Mr. Michel Guimond: But this is not the case we are interested in.

When you answer that way, Mr. Maingot, with all your expertise and your qualifications as an expert witness which no one here, around this table, challenges, you are speaking of what applies during the work of the House, if we say that a colleague knowingly lied to the House. Here, it is not the same situation at all. When you answer that way, you are doing so as an example. What you have just told us does not correspond at all to the case we have to study.

Mr. Joseph Maingot: Exactly, the Reference does not mention...

Mr. Michel Guimond: The Reference does not mention the word “intentionally”.

Thank you.

[English]

The Chair: Jacques Saada.

[Translation]

Mr. Jacques Saada: It is more to clarify matters, Mr. Chair, than to ask a question, if you will allow me.

You will remember that the first motion tabled in the House of Commons, the original motion, included the word "voluntarily" and by the admission of the mover, the word was withdrawn because, and I am not quoting directly here but in the spirit of his intervention, that this motion had a better chance of passing if the word “intentionally” did not appear in it. He back-tracked on his testimony and there, he added the word “intentionally” in his own testimony.

So, I think we have to be very careful when we interpret the motion and the wording when the mover himself admits that the reason that the word “intentionally” was not included was so it would have a better chance of passing in the House.

[English]

The Chair: That's a point.

Mr. Maingot, do you want to comment on that?

Mr. Joseph Maingot: I'll just comment from the point of view of procedure. It's an illusive subject, this question about the use of “deliberately”. I think the principle is that if you're charging somebody with deliberately misleading the House, it should be in a self-contained motion, and then you go from there. The person makes that charge, that's in a motion, you give notice of it, then it comes up on the Order Paper, the Speaker looks at that and says, it's serious and we accept it, and you debate that charge. But if it's a question of privilege, you can't use those words in there, because the purpose of the motion, when you're charging somebody, is to prove that he has deliberately misled the House. That's the only occasion when you can use it. What you're doing with this question of privilege is putting forth enough facts to get it before the committee, but you're not actually using language that is unparliamentary.

» (1710)

The Chair: Pierre Brien.

[Translation]

Mr. Pierre Brien: I would like a clarification on a point of order.

Mr. Saada spoke of a motion which had been tabled in the House and of the word “voluntarily”. I would like him to clarify if it was tabled in the House or if it was only rumour and hallway gossip.

Mr. Jacques Saada: Mr. Chair, if you will permit me, I can answer that very easily. It is in the very testimony of the person who proposed the motion. There was a question asked very specifically about that. I think that in looking at the transcript, we will be able to recognize that exactly, but we alluded to a motion. Moreover, it was a question from a Liberal colleague. He asked the question as to why his original motion included the word “intentionally” while the motion that was tabled was not that one.

[English]

The Chair: The question is, was the original motion a motion, right?

[Translation]

Mr. Jacques Saada: If that is what I led you to believe, that was not my intention, Mr. Chair. I wanted to make sure that it was clear that it did not appear in the text of the motion, but that it was in the testimony of the person who made the motion.

[English]

The Chair: Okay.

Geoff Regan.

Mr. Geoff Regan: Mr. Chairman, my question for the witness is, how can a member be guilty of contempt if the member misled the House inadvertently?

Mr. Joseph Maingot: Unless they reduce the threshold, he usually is not held in contempt.

Mr. Geoff Regan: In that case, would you say the motion by which this matter has come before us does not comprehend a contempt?

Mr. Joseph Maingot: You have the motion you have now, and I suggest that if during the course of your proceedings you come to the conclusion that the misstating was intentional, you could report that.

Mr. Geoff Regan: Thank you.

The Chair: Mr. Maingot, on behalf of my colleagues, I want to thank you for being here. We hear your book referred to frequently in the House of Commons, so it's a great pleasure to see you here. We appreciate your patience with our questions. Thank you very much. Unless you have anything else to say, we're going to proceed with our meeting now.

Mr. Joseph Maingot: I hope I haven't muddled things up.

The Chair: No, it's been very interesting. Thank you very much, Mr. Maingot.

Mr. Joseph Maingot: Can I just tell you a story about the book? I was in East Timor last fall for three months, and the director of the committee there said, someone from the Library of Parliament came through here a few months ago and they left this book. It was a copy of my book, in East Timor.

The Chair: Well, listen, given that we're on TV and that it will be shown somewhere, we might as well give it a plug. Anyone out there suffering from insomnia, I might suggest that you try Parliamentary Privilege in Canada, second edition, by Joseph Maingot, QC.

Thank you, Mr. Maingot.

Colleagues, we have received documentation from the Privy Council Office, but there's a slight wrinkle in it. It's all translated, but where there are quotations from one language to another, they have not been appropriately translated. I regret that. We will get it translated. That material will be circulated tomorrow morning.

As I recited at the beginning, we're still short of material. In other words, in respect of our investigation to this point, to the end of the preliminary list of witnesses, we're still short of a number of documents, and you should know that. So to that extent, our investigation is incomplete.

We've agreed to deal with Yvon Godin's tabled motion with respect to Monsieur Laverdure. We must do that. We should also deal with a motion from the Alliance. I will tell you what that is. It's from Vic Toews, who moves that the Minister of National Defence be invited to appear before the committee at the earliest opportunity. I've looked at that and I've looked at the motion that was defeated at a previous meeting. In my judgement, this one is sufficiently different from that motion, which was also calling the minister, but was calling him much more specifically, that we can vote on this.

I have two motions now from the Bloc as well. One has to do with Wendy Gilmour, who is the Foreign Affairs representative in Florida, the other is with regard to George Young, executive assistant to the Minister of National Defence. It is moved that both of those people be called to the committee.

I can proceed in various ways, and I think these motions should be moved--and we're going to introduce these motions now--but I would say to you, colleagues, that we have not completed this exercise, because we simply don't have the documents. So as to how we proceed from this point, I'm in your hands. My instinct is that we need a meeting at which we regroup and deal with these matters again. I'm in your hands. I'm willing to stay here for a couple of hours.

Vic Toews, would you like to make a comment?

» (1715)

Mr. Vic Toews: I'm comfortable with the manner you've suggested for proceeding, especially in respect of the minister. And I'll give you my reasons, Mr. Chair. I think the minister is entitled to be heard again on this matter, once we've heard other witnesses. I don't suggest that we have to vote on that issue now, but I can certainly make the arguments as to why he should return.

The Chair: We can introduce these motions now, but my sense is that we need another meeting to discuss them.

Pierre Brien.

[Translation]

Mr. Pierre Brien: I also would like it if we could, in a consensual manner, agree on a list of witnesses we would like to hear. I am ready to accept your argument that we should have a meeting. Would it be a meeting of the steering committee or the full committee? I'm not sure but I am open to that approach.

I don't want us to be voting or debating motions today, as long as there is a process to which we are committed to achieve something that allows us to discuss the next step in this work.

[English]

The Chair: Jacques Saada.

[Translation]

Mr. Jacques Saada: Thank you, Mr. Chair.

We have already heard a list of witnesses. We are missing documents. I think that it would be relevant if we take advantage of our week's break to obtain those documents, to review everything and to conclude, yes or no, if we really need to see more witnesses or to recall previous witnesses. I propose that we deal with all that on the Tuesday we are back.

When we spoke of possible witnesses, I am sure my colleagues in the Alliance will be very interested in what I am going to say. When we speak of possible witnesses, I think, it is necessary, on one hand, that the full committee look into this, because it is not just a question for the steering committee but for the full committee.

On the other hand, so as not to embarrass anyone, I think we should do that behind closed doors and not in public.

[English]

The Chair: I see heads nodding. Let's hold that thought there.

Yvon, on the matter of your tabled motion, are you comfortable if it stays tabled until such a meeting, whatever form the meeting takes?

[Translation]

Mr. Yvon Godin: It's the same thing: I agree to that as long as my motion stands. Afterwards, we can do as we have in the past. That we look at all our documents and that we then try to come to an agreement. Otherwise, we bring it back to the committee.

» (1720)

[English]

The Chair: Jay Hill.

Mr. Jay Hill: On the matter of the documents, do you want to deal with that now or wait until we're finished with this discussion about additional witnesses?

The Chair: My thought, Jay, just so you know, is that they're going to come with the other documents we're going to receive. If the meeting goes forward in some way, we would have the documents then, I hope. Is that okay?

Mr. Jay Hill: It certainly is my hope that we would have them at some point during the break next week, so that we would have time to review them adequately before the meeting on the Tuesday.

The Chair: As we're doing now, we would have circulated the PCO documents immediately. As soon as we get them, we get them to you.

The suggestion at the moment is that there's going to be this meeting, these are notices of motion, they will be dealt with at that meeting. The tabled motion we will deal with at that meeting, we've agreed on that. The new documents will either be here or they won't be, but my guess is that they will be here by that time.

Leon, are you dealing with this, because we'll deal with the nature of the meeting in a moment?

Mr. Leon Benoit: Mr. Chair, this is exactly the point . My colleagues and I just conferred regarding this, and we want this decision and the vote to be made in public. I think it is extremely important in this situation that we have that openness in the process.

The Chair: Okay.

Jacques Saada.

[Translation]

Mr. Jacques Saada: Mr. Chair, I completely agree with my colleague, which does not mean that the deliberations which will come first, should be in private, behind closed doors. That the deliberations be behind closed doors, but when the time comes to make a decision, if we need a vote, we should do so publicly. There is no problem.

[English]

The Chair: Okay.

I have to advise you that I've received from the Bloc another motion, which is to call Commodore Thiffault. They're all on the record now, I think. One is to call the minster, one is to call Claude Laverdure, which is the tabled motion, one is to call Wendy Gilmour, one is to call George Young, and the other is to call Commodore Thiffault. These are all now in play.

We're discussing the nature of the meeting. We have the suggestion that the meeting be open. We have the suggestion that it begin with some discussion in camera, which is, by the way, the normal way the committee would plan, and that we then proceed to a public meeting when we come to take the votes on these matters.

Jay Hill.

Mr. Jay Hill: So that we're all very clear on this point, I fully support the outline you just referred to, Mr. Chairman, for how we should proceed, but any votes would be taken once we're back in public. As long as that's the understanding, I would fully support that.

The Chair: I've been looking around, and that would certainly be my intention. The only complication is that I doubt we can be sure of getting this room for both an in camera meeting and a public meeting, and there's the question of our agreement that the meetings be televised.

Mr. Jay Hill: We have the government whip right here, and I'm sure she can ensure that both the in camera and the subsequent meeting would be in the televised room.

Mr. Vic Toews: On a point of order, there seems to be some confusion on this side in respect of the chair's summary. My understanding is that while we may deal with some administrative matters in camera, or that's the suggestion now, ultimately, any submissions made to the chair in matters to be determined by the committee regarding the bringing forward of witnesses will be done in open committee.

The Chair: That's right. As I understand it, it's so we can discuss all sorts of aspects of how we're going to proceed. Then we're going to come out, and these motions and any other motions introduced at that time will be dealt with in public.

Mr. Vic Toews: Mr. Chair, when you read the motions, did you also read the one about the Minister of Defence?

The Chair: Yes, I did. I'll repeat them all again at the end, if you don't mind.

Jacques Saada.

[Translation]

Mr. Jacques Saada: Mr. Chair, I just want to make sure that I understand correctly. Actually, we are not getting confused; I am confusing myself.

» (1725)

[English]

We meet together, we discuss in camera all these motions. Once we have reached the point where we've got to make a decision, we go public, and we make the decision in public. Am I correct?

The Chair: Could I simplify it? We're not going to take votes in the in camera meeting.

Leon.

Mr. Leon Benoit: Nor are we going to debate the motions in camera, is that correct? We must have the debate on the motions in public.

The Chair: I think the meeting's going to be a very free-wheeling debate. The question of who should be called and so on will have to be discussed. It's not going to be that we introduce the motion and say, discuss this. We're going to discuss all these things, come out, and then, one by one, these motions will appear and any other motions members care to place.

Mr. Leon Benoit: And we debate them in public.

The Chair: Surely so. As soon as a motion is introduced in this committee, it's debatable.

Jacques Saada.

[Translation]

Mr. Jacques Saada: Mr. Chair, I have trouble understanding the reasoning. EIther we go behind closed doors, or...

[English]

The Chair: Which proposition?

[Translation]

Mr. Jacques Saada: I understood things up until now, but I no longer understand, We are behind closed doors to discuss the relevance of having other witnesses and other similar motions and, after that, when we come out from behind closed doors, it will be to vote. If we debate once we come out, we will be restarting the debate in public that we will have had behind closed doors. That doesn't work.

[English]

The Chair: I want everybody to be clear about this. We're not going to go into that meeting with me having to rule out of order a motion before us that we're going to discuss in public that Claude Laverdure be called here. It wouldn't work. The idea is to have a very frank, free-wheeling discussion amongst ourselves, but there will not be votes. We're not going to make final decisions in camera.

Marlene Catterall.

Ms. Marlene Catterall (Ottawa West--Nepean, Lib.): I think it's important to note, Mr. Chair, that what you're suggesting is that the whole committee act as a steering committee with respect to determining a list of witnesses, then reporting in the open. I think it's important, because this committee has, throughout these hearings, operated in public and on television, so that our proceedings are clear and available to anyone who wants to see them. But when it comes to talking about specific witnesses, that is normally done in camera, for the simple reason that we may be commenting on an individual person. Out of respect for that individual's privacy and reputation, those discussions always take place with the steering committee, always take place in camera, not in the open.

The Chair: But we will not be making voting decisions in camera.

Jay Hill.

Mr. Jay Hill: I think part of the problem, Mr. Chairman, if I could be so bold, is if all the debate about whether we call any more witnesses or whether the inquiry comes to a conclusion is going to be in camera. My understanding of in camera is that all committee members would be restricted from revealing what was said at that time. Let's just work through this situation. We have the debate on that list of witnesses you read out, it's all kept from the public. Then we go public, the television cameras come on, we have the vote--just work with me on this one--all the Liberals vote one way, all the opposition members vote the other way on witness after witness, so motions get voted down. We go outside this door, the media obviously want to know why this happened. If we're not allowed to reveal the debate that went on, how can we defend even our purpose in putting forward the witnesses' names?

The Chair: Jay, procedurally, when a motion is introduced, it's debatable. So you introduce one of these motions, and then it's debated. It would be comparable to the way we proceeded after our steering committee met many times to come up with this very open procedure we've been using; everything was debated.

Yvon Godin.

Mr. Yvon Godin: I just want to see that Jacques understands that, because that's not the understanding I got from him. He said we're going to go in camera, we're going to debate the motions, and when we come back, it's to vote, we're not going to debate any more. Mr. Chair, I just want the opinion of the government, so we don't argue about that later on.

» (1730)

The Chair: I have enormous respect for Jacques Saada, as do we all, but I am the chair of this committee, he is not. I just explained to you how it's going to be run.

Colleagues, I'm going to adjourn the meeting in a moment.

Mr. Vic Toews: You'll still be here next week.

The Chair: I'll still be here, that's right.

To make it clear, we're adjourning to a week Tuesday at 11 o'clock, our regular meeting time, in this room, as long as the chief government whip can arrange it.

The meeting is adjourned.