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- Counsel for the House of Commons has advised me that her client has decided by motion to reaffirm the immunity and privilege which, according to her submission, attach to the testimony of Mr. Guité before the Public Accounts Committee, and not to waive that privilege. I am grateful to the House of Commons for the dispatch with which it considered and dealt with this issue.
- This morning counsel for Mr. Guité presents a motion by which he reasserts his pretension that the transcription of his client's testimony before the Public Accounts Committee should not be used or referred to in any way during his cross-examination. In addition to the argument based upon parliamentary privilege, he invokes certain promises made to him prior to testifying to the effect that his testimony would not be used in other proceedings. These promises appear to have been an important consideration in the deliberations of the Committee of the House of Commons which recommended that no waiver be given. Mr. Guité asks that I issue an order accordingly, and maintain his objection to the use of any evidence previously given by him before the Public Accounts Committee.
- Counsel for Mr. Pelletier who is cross-examining Mr. Guité, as well as counsel for certain other parties who will wish to cross-examine, wish to use the transcriptions as evidence of prior statements made by the witness which are, according to their pretensions, inconsistent with the testimony given before this Commission; in this way they propose to attack the credibility of the witness and the probative value of his testimony. Counsel for the House of Commons appeared before the Commission on October 18, 2004 and again on October 25, 2004, to argue that the use of transcripts or evidence given before any House of Commons Committee is constitutionally impermissible.
- The objection to any admission of the PAC transcripts is based on the parliamentary privilege of "free speech" which is part of the Constitution of Canada by virtue of the preamble and s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1. Section 4 confirms the privileges of our Parliament and its members with reference to the privileges of the United Kingdom House of Commons as at Confederation, which then included the parliamentary freedom of speech guaranteed by Article 9 of the United Kingdom's 1689 Bill of Rights. Article 9 provides "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament".
- It is not suggested by any of the parties contesting the objection that Article 9 does not apply to the proceedings of committees of the House of Commons, but they argue that it applies only to what is said by members of Parliament, and does not extend to what is said by persons appearing as witnesses before Parliament or its committees. Counsel for these parties argue that Article 9 was not intended to apply to such witnesses but to the statements made in debate by parliamentarians themselves and that the purpose of the enactment was to protect the latter from civil or criminal proceedings based upon such statements. Its objective was not, according to their submission, to protect from scrutiny in the Courts the declarations made by witnesses before parliamentary committees which they later contradicted in court proceedings, or which are inconsistent with their testimony. They note the historical context in which the Bill of Rights was enacted, as part of legislation which brought William of Orange and his wife Mary to the throne of England, after the reigns of the Stuarts which had been marked by conflict between the Monarchy and Parliament. In 1689 parliamentarians clearly wished to ensure their immunity from prosecution for what was said in parliamentary debate, but it may be doubted that they were thinking of the testimony of witnesses before parliamentary committees. It may even be doubted that parliamentary committees existed in 1689, at least as we know them today.
- One of the difficulties I have in deciding whether to maintain or dismiss the objection is that there is no Canadian case directly dealing with the issue. I am referred, however, to jurisprudence in cases alleged to be persuasive originating in other countries which have, like Canada, inherited the Westminster form of parliamentary government and the protections afforded by the Bill of Rights of 1689. Of this jurisprudence two cases stand out, the decision of Mr. Justice Hunt in the Australian case of R. v. Murphy (1986) 64 A.L.R. 498 and the decision of the Judicial Committee of the Privy Council, in an appeal from a decision of the Courts of New Zealand, in Prebble v. Television New Zealand Ltd. (1995) 1 A.C. 321. Sadly, these two decisions are at the same time well-reasoned, persuasive and completely contradictory. The parties contesting the objection, who argue that parliamentary immunity does not attach to the transcripts of Mr. Guité's testimony before the Public Accounts Committee, rely upon the reasons for judgment of Mr. Justice Hunt, which include the following extract from page 8 of his Judgment:
- What is meant by the declaration that "freedom of speech…in Parliament ought not to be impeached or questioned in any court or place out of Parliament" is, in my view, that no court proceedings (or proceedings of a similar nature) having legal consequences against a member of Parliament (or a witness before a parliamentary committee) are permitted which by those legal consequences have the effect of preventing that member (or committee witness) exercising his freedom of speech in Parliament (or before a committee) or of punishing him for having done so. In other words, the phrase "impeached or questioned in any court or place out of Parliament" in Art. 9 should be interpreted in the sense that the exercise of the freedom of speech given to members of Parliament (and committee witnesses) may not be challenged by way of court (or similar) process having legal consequences for such persons because they had exercised that freedom.
- He continues at page 11 as follows:
- Freedom of speech in Parliament is not now, nor was it in 1901 or even in 1688, so sensitive a flower that, although the accuracy and the honesty of what is said by members of Parliament (or witnesses before parliamentary committees) can be severely challenged in the media or in public, it cannot be challenged in the same way in the courts of law. It is only where legal consequences are to be visited upon such members or witnesses for what was said or done by them in Parliament that they can be prevented by challenges in the courts of law from exercising their freedom of speech in Parliament. It is only when that is the consequence of the challenge that freedom of speech in Parliament needs any greater protection from what is said or done in the courts of law than it does from what is said or done in the media or in public.
- This decision so alarmed the Parliament of Australia that it promptly enacted legislation to explicitly affirm the parliamentary privilege argument rejected by Mr. Justice Hunt, by the Parliamentary Privileges Act of 1987.
- The opposing view, upon which counsel for the House of Commons and Mr. Guité rely, is enunciated in the Privy Council decision in Prebble v. Television New Zealand Ltd., which takes a much broader view of the immunity created by Article 9 of the Bill of Rights. Lord Browne-Wilkinson expressly disagrees with the conclusions reached by Mr. Justice Hunt, and says in his opinion that Article 9 of the Bill of Rights is a manifestation of the principle that the courts and Parliament should recognize their respective constitutional roles and that one should not be allowed to challenge in any way what is said or done in the other. He continues as follows at p. 332 of the reported decision:
- According to conventional wisdom, the combined operation of article 9 and that wider principle would undoubtedly prohibit any suggestion in the present action (whether by way of direct evidence, cross-examination or submission) that statements were made in the House which were lies or motivated by a desire to mislead.
- After expressing, politely but firmly, his profound disagreement with the conclusions of Mr. Justice Hunt in R. vs. Murphy, his Lordship concludes as follows (p. 334):
- Moreover to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non-intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue.
- It should be noted that decisions of the Privy Council rendered in 1995 are not binding on Canadian courts, although of course its views as to the proper interpretation to be given to an English statute such as the Bill of Rights of 1689 should be given great weight.
- Before I undertake to choose between contradictory precedents, I must first consider the particular context in which the present dispute arises. Certain important distinctions from the cases mentioned are apparent. First of all, I am not here sitting as a court of law, but am presiding over a Commission of Inquiry, which has the mandate to make factual findings in order to make, subsequently, recommendations to prevent mismanagement of sponsorship programs or advertising activities of the Government of Canada in the future. The Terms of Reference by which the Commission was created require me to submit, on an urgent basis, reports to the Governor in Council, and I interpret this requirement to mean that as Commissioner I should avoid, to the greatest degree possible, legal entanglements that would have the effect of delaying the Commission's hearings and the submission of its reports. Since the Terms of Reference forbid me to make findings of civil or criminal responsibility, the present Commission is not at all similar to a court, although some of its procedures are comparable to what occurs during a trial. I also note that the Terms of Reference authorize the Commissioner "to adopt any procedures and methods that he may consider expedient for the proper conduct of the inquiry", meaning that the usual rules with respect to procedure and the admissibility of evidence do not apply, the only limitation to my liberty to proceed as I deem expedient and appropriate being my obligation to act fairly and in accordance with the requirements of natural justice.
- Another distinguishing factor should be noted. This is a public inquiry into matters of great interest to the public, which relies upon the media for information concerning the evidence. The hearings are televised, as were the hearings before the Public Accounts Committee. Should I decide to maintain the objection, I would be in the seemingly paradoxical situation of deciding to exclude from consideration by the Commission testimony which has been available to the population in general and which has been widely commented upon in the media. However, this is not so paradoxical as it may at first appear. Facts having their source in privileged communications are often denied to judges and juries, as triers of questions of fact, yet no one contests the legal validity of their eventual findings and verdict.
- The final distinction is the explicit promise made to Mr. Guité by the Public Accounts Committee that he would benefit from parliamentary immunity. From the case reports it does not appear that a similar promise was made to the witness concerned in the cases of Murphy and Prebble.
- Should I decide the objection by authorizing the use of the transcripts for the purposes of cross-examination, I would undoubtedly have the advantage of knowing to what extent Mr. Guité may have made declarations to the Public Accounts Committee which may be inconsistent with his testimony before the Commission, but this would be at the cost of the risk of provoking an application for judicial review of my decision and the possibility of a stay of the hearings of the Commission. This is, in my opinion, a much greater danger and disadvantage to the completion of my mandate than being deprived of the use of the transcripts.
- It should be remembered that questions to a witness concerning prior inconsistent statements have for their sole objective the undermining of the witness's credibility. They do not serve to put into evidence the earlier testimony of the witness; only what the witness says in his or her deposition before this Commission has what we call probative value. It should also be recalled that such questions are only one method of attacking a witness's credibility. All of the other means of assessing and testing credibility remain. In my view, even without the use of his prior testimony, I should be able to come to satisfactory conclusions concerning the credibility of Mr. Guité, based upon my experience as a judge, the documentation in the record, prior inconsistent statements he may have made elsewhere than before that particular Committee, and the usual indicia upon which triers of fact rely, such as the manner in which witnesses testify, contradictions, if any, in their testimony and the evidence of other witnesses.
- In my view it is important that this Commission should not be seen to encroach in any way upon the privileges and immunities of the Parliament of Canada, and should respect the promises and undertakings it made to Mr. Guité. For this reason and for the practical reason that it is desirable and necessary to proceed with the work of this Commission of Inquiry without interruption, I propose to maintain the objection. Should this Ruling give rise to an application for judicial review by the parties contesting the objection or by one of them, in the event that my Ruling on the objection is eventually overturned before the Report of the Commission has been produced, Mr. Guité could, if necessary, be recalled to be questioned concerning the allegedly contradictory statements made previously. In other words, nothing will have been done that cannot be subsequently corrected.
- For the time being, the objection is maintained and counsel are prohibited from asking Mr. Guité any question based upon an allegedly contradictory declaration made by him before the Public Accounts Committee of the House of Commons.
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John H. Gomery, Commissioner
Dated at Ottawa November 22, 2004
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