|
|
|
- On October 18 and 25, 2004 I heard argument on Mr. Guité's objection to the attempt by Mr. Gagliano's counsel to cross-examine Mr. Guité on the basis of his prior testimony before the House of Commons' Standing Committee on Public Accounts ("PAC") in April of the same year. Mr. Gagliano was supported in his attempt by counsel for two other parties, Messrs. Chrétien and Pelletier, and was opposed by counsel for Mr. Guité. Mr. Guité's counsel, as well as counsel for the House of Commons, took the position that parliamentary privilege precluded the use of Mr. Guité's testimony for the purpose of impugning his credibility.
- My decision dated November 22, 2004 was to exclude the use of the PAC testimony. I expressed the view that even without the testimony I had sufficient means to assess Mr. Guité's credibility; it was therefore unnecessary for me to make a final determination whether or not parliamentary privilege forbade the use of the PAC testimony to impugn Mr. Guité's credibility.
- My decision not to allow the PAC testimony into evidence was upheld by the Federal Court on judicial review by a decision dated April 27, 2005. However, Madam Justice Tremblay-Lamer's conclusion was based on an assessment of the law of parliamentary privilege as it applied to the PAC testimony. She concluded that the essential test was whether, in order to ensure the effective operation of parliamentary committees, it was necessary to forbid the cross-examination of committee witnesses in any other forum, using transcripts of their committee testimony, and found that it was necessary to preclude cross-examination based on committee testimony, so as to encourage witnesses to testify openly before parliamentary committees, to allow the committee to exercise its investigatory function and to avoid contradictory findings of fact.
- Mr. Gagliano's present application asks that I order deposit of the PAC transcripts and the corresponding audio-visual recordings into the record. Furthermore, basing himself on the last factor mentioned by Justice Tremblay-Lamer, namely the necessity of avoiding contradictory findings of fact, Mr. Gagliano asks for an additional order substituting the PAC evidence for this Commission's examination and cross-examination of Mr. Guité in November last year and in April and May this year. The application was argued before me on May 13, 2005 by counsel for Mr. Gagliano, for the House of Commons (accorded standing for the purposes of this application), for the Government of Canada and for this Commission. I was advised in writing by Mr. Guité's counsel that he opposed the application.
- The first proposition of Mr. Gagliano's argument is that the filing of the PAC testimony as evidence of historical fact would not of itself violate parliamentary privilege. His second proposition is that Mr. Guité's PAC testimony should be admitted into evidence because its content is relevant to the Commission's inquiry, and essential to Mr. Gagliano's natural justice right to present evidence that contradicts Commission testimony that is adverse to his interests. His third proposition is that, according to the recent Federal Court decision, I am obliged to disregard Mr. Guité's allegedly inconsistent Commission testimony because the law concerning parliamentary privilege determines that the PAC testimony cannot be questioned. Finally, it is argued that Mr. Guité's PAC testimony meets the admissibility criteria specified by the Supreme Court of Canada in the K.G.B. decision.1
- Mr. Gagliano's written submission adds that Mr. Guité's PAC testimony is likely to have been more frank and open than his "unprotected" testimony before this Commission because he was advised that his PAC testimony would be protected by parliamentary privilege; it follows that excluding the PAC testimony from the record would mean depriving this Commission of the best evidence available.
- The principal argument opposing Mr. Gagliano's application was presented by counsel for the House of Commons, who argued that the mere admission of the PAC testimony into evidence, remembering that parliamentary privilege precludes an evaluation of the content of that testimony for credibility and weight, would frustrate the Commission's obligation to draw conclusions based upon its own evaluation of the evidence. It is obvious that Mr. Gagliano's real purpose is to admit the prior testimony for the truth of its contents rather than as a simple fact. It was also argued that admitting the testimony would frustrate this Commission's procedural fairness obligations, in particular its obligation to allow Mr. Guité an opportunity to try to explain any contradictions between his prior and current testimony. I was reminded that I had already come to the conclusion that I am able to assess Mr. Guité's credibility without resorting to the PAC testimony. Since the Committee has not itself evaluated the testimony or Mr. Guité's credibility, the potential for contradictory findings would remain. Finally, it was argued that the common law "best evidence" rule cannot prevail over a rule of privilege.
- Counsel for the Government of Canada supported the House of Commons in its submissions, and added that, to the extent that Mr. Gagliano's argument relied on the principles of natural justice, the Supreme Court of Canada decisions in Ocean Port2 and Donahoe (New Brunswick Broadcasting)3 stand for the proposition that those principles may give way to conflicting statutory provisions (absent an overriding constitutional provision) and must give way to conflicting rules of constitutional law.
- Commission counsel argued by analogy for the exclusion of the evidence on the basis of the common law rule that one cannot resort to the principles of natural justice to override professional privilege. He also noted that the KGB rules for the admission of prior contradictory statements only operate where the evidence sought to be introduced is otherwise admissible.
- There is superficial merit to Mr. Gagliano's argument that the mere admission of the PAC testimony into evidence would not violate parliamentary privilege. Certainly, as noted in Mr. Gagliano's written submissions, the Judicial Committee of the Privy Council said in the Prebble4 decision that courts may admit Hansard into evidence "to prove what was done and said in Parliament as a matter of history"5. However, on closer examination, the case law cited by the Applicant provides him little support in the particular circumstances of this case.
- In Comalco6 , a decision of the Supreme Court of the Australian Capital Territory, the plaintiff corporation sued the media for defamation in a television program, in which were cited statements reportedly made by a government minister in the territorial legislature. In its defence, the media sought to adduce those statements in evidence and parliamentary privilege was invoked to preclude admission. The Australian Court reviewed a number of authorities, including the English defamation case of Church of Scientology v. Johnson-Smith7 in which the plaintiff had alleged that the defendant member of Parliament had consistently attacked the Church of Scientology in the House of Commons. The English Court excluded the particulars that relied on Hansard to establish what was said in the House. Subsequently, in Comalco, the Australian Court clarified that the Church of Scientology ruling was that the defendant's statements in the House could not be used against him on the issue of malice, but not that Hansard was itself inadmissible. The Australian Court concluded8 :
- ... I think that the way in which the court complies with Art 9 of the Bill of Rights 1689, and with the law of the privileges of Parliament, is not by refusing to admit evidence of what was said in Parliament, but by refusing to allow the substance of what was said in Parliament to be the subject of any submission or inference. The court upholds the privileges of Parliament, not by a rule as to the admissibility of evidence, but by its control over the pleadings and the proceedings in court.
- Accordingly, passages from Hansard were held to be admissible solely to establish the fact that certain statements were made by the Minister, given their possible relevance to the defence of fair comment.
- The House of Lords decision in Pepper v. Hart9 was principally about the rule that prevented British courts from relying on Hansard as a statutory interpretation tool, a rule already rejected by Canadian courts. There was some discussion whether the simple act of admitting Hansard into evidence breached parliamentary privilege. In answering that question, the Law Lords focused on whether the admission of Hansard as a tool to resolve an ambiguity in statutory language would involve "any impeachment, or questioning of the freedom of speech or debates or proceedings in Parliament." The Attorney-General had argued that such use would entail a "questioning" of the freedom of speech or debate. Lord Browne-Wilkinson, with whom the other Law Lords expressed their agreement, held that "…the use of clear ministerial statements by the court as a guide to the construction of ambiguous legislation would not contravene article 9." He continued: "No doubt all judges will be astute to ensure that counsel does not in any way impugn or criticise the Minister's statements or his reasoning."10
- In Clarke11 , the defendant was charged with inciting a riot on the steps of the Ontario legislature. The Court allowed him to enter correspondence between himself and the Speaker's Office for the purpose of establishing his state of mind, but prohibited the use of the same documents to criticise or review the actions of the Speaker's Office or the Speaker's decisions.
- Finally, although the Prebble case clearly supports the admission of Hansard as proof of the historical fact of certain things having been said in Parliament, the Law Lords very clearly limited the uses to which such evidence could be put, and placed certain oversight obligations on the court admitting the evidence12:
- ... Thus, in the present action, there cannot be any objection to it being proved what the plaintiff or the Prime Minister said in the House … or that the State-Owned Enterprises Act 1986 was passed…. It will be for the trial judge to ensure that the proof of these historical facts is not used to suggest that the words were improperly spoken or the statute passed to achieve an improper purpose.
- They continued13:
- It is clear that, on the pleadings as they presently stand, the defendant intends to rely on these matters not purely as a matter of history, but as part of the alleged conspiracy or its implementation. Therefore, in their Lordships' view, Smellie J. was right to strike them out. But their Lordships wish to make it clear that if the defendant wishes at the trial to allege the occurrence of events or the saying of certain words in Parliament without any accompanying allegation of impropriety or any other questioning there is no objection to that course.
- In my view, the superficial attractiveness of Mr. Gagliano's argument that parliamentary privilege allows the admission of Mr. Guité's PAC testimony into evidence before this Commission disappears when one realises that the real purpose in admitting the testimony would be to establish what he affirmed. The fact that Mr. Guité testified is not contested; what Mr. Gagliano really wants to prove is that Mr. Guité may have made statements before the PAC which cannot be reconciled with his testimony before the Commission. This is directly contrary to the Federal Court decision on Mr. Gagliano's prior application; the record of Mr. Guité's PAC testimony cannot be used to test his credibility. In order to establish its allegedly contradictory nature, I would have to examine the PAC testimony and compare it to the testimony given before me. In my view, such an exercise is far too closely-related to the cross-examination that, according to Justice Tremblay-Lamer, is forbidden by parliamentary privilege.
- For the purpose of the exercise of my discretion to control the proceedings before me, I find that the principal value of the jurisprudence cited above lies in their reminder of the care that must be taken by a tribunal if it is suggested that a record of parliamentary proceedings should be made part of the record. The tribunal must "refuse to allow the substance of what was said… to be the subject of any submission or inference,"14 and must also "ensure that counsel does not in any way impugn or criticise the speaker's statements or reasoning"15 and ensure that the admission of the transcripts or audio-visual recording "is not accompanied by any allegation of impropriety or any other questioning."16
- With reference to the second conclusion of Mr. Gagliano's application, he argues that in the event I admit the transcript of the PAC testimony into evidence, I should then substitute it for the testimony given before this Commission. However, since Mr. Guité's PAC testimony is not evidence made in accordance with the Rules of the Commission, I cannot accept it without prior cross-examination, among other reasons. If I were inclined to defer to the Committee's assessment of Mr. Guité's testimony, I could not use the PAC testimony as evidence since the Committee has not yet reported. Indeed, reliance on the PAC testimony might ultimately lead to contradictory findings as between this Commission and PAC since PAC might eventually reject some or all of the testimony I had accepted.
- In conclusion, since the Federal Court has decided that Mr. Guité's PAC testimony cannot be questioned, weighed or assessed for credibility by any body other than Parliament itself, and cannot be used against Mr. Guité in the Commission's proceedings, I find that the admission of Mr. Guité's PAC testimony would serve no useful purpose. I therefore exercise my discretion to continue to exclude that testimony from the record before me.
- Mr. Gagliano's application is dismissed.
__________________________________________
John H. Gomery, Commissioner
May 20, 2005
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
|
|
