Not going anywhere
Despite phone-called rumours to the contrary, Irwin Cotler is not going away. Nor is this controversy, which some commentators believe deserves sustained attention. Yesterday in the House of Commons, Mr. Cotler made another intervention to argue how these calls in his riding were damaging his work as a member of Parliament. It's not clear to me when the Speaker will rule.
The full transcript of Cotler's remarks are below and I've inserted some relevant links, in addition to the ones contained in the Hansard:
Mr. Speaker, I rise again in the matter of the question of privilege I first raised on November 16. Simply put, the submission from the member for New Brunswick Southwest on Monday evening misstated the facts at issue, however inadvertently, yet again, while ignoring the attending breach of privilege. Moreover, he did not make any reference to the principles and precedents which support my position and which should guide your ruling.
I want to organize my remarks and ensure that we are all following House of Commons Procedure and Practice, second edition from 2009 by the recognized authorities O'Brien and Bosc. The member stated:
In conducting voter identification, the Conservative Party used its traditional voter ID script, with no mention of a byelection.
Either every person who has called, emailed, mailed or faxed my office, or talked to me in person about these calls is lying, or the member is utterly mistaken as to their content while ignoring the evidence.
May I draw your attention, Mr. Speaker, to a Huffington Post article, a copy of which was provided to the table clerks, along with samples of the emails and phone calls to my offices, wherein a constituent says:
I kept arguing with them. They kept insisting that there was a byelection and I'm politically aware and there isn't one.
Mr. Speaker, I will repeat. The constituent, and more importantly this constituent is representative of the calls received and the evidence you have received, said, “They kept insisting that there was a byelection...” “was” being the key word, not “maybe”, “could perhaps be”, “might be”. She said “was” and that she had to argue with the caller otherwise.
Any dispute as to the contents of these calls is quickly resolved by looking at the evidence my office has submitted to the table clerks. But, Mr. Speaker, I will remind you that you need not resolve the actual content of the calls prior to ruling. Indeed, as the Clerk of the House noted before the Standing Committee on Procedure and House Affairs in 2002, reprinted on page 145 of O'Brien and Bosc:
The Speaker's role ought to be explained, and it is that the issue put before the Speaker is not a finding of fact, it is simply whether on first impression the issue that is before the House warrants priority consideration over all other matters, all other orders of the day that are before the House.
Indeed, Mr. Speaker, your role is finding whether there is a prima facie breach which O'Brien and Bosc reminds us means a breach, “on the first impression or on first glance”.
It is standard practice that you would take the matter under advisement as you have done, upon first being presented with it. However, I would assert that it is evident on its face, particularly as we begin a fifth round of interventions on this topic, that the matter is sufficiently serious and sufficiently prejudicial to warrant consideration by the whole House and subsequently at committee.
The member for New Brunswick Southwest asserts that my privileges have not been breached and that my parliamentary duties have not been sufficiently impeded. The member is ignoring that sowing confusion as to a member's identity is actionable on its face and alone a per se impediment.
While l believe that I made a clear and compelling case in this regard in my previous intervention, I would like to remind the House and that member, through you, Mr. Speaker, that there is another privilege avenue of which I have not yet spoken. Specifically, O'Brien and Bosc explained it:
In deliberating upon a question of privilege, the Chair will take into account the extent to which the matter complained of infringed upon any Member's ability to perform his or her parliamentary functions or appears to be a contempt against the dignity of Parliament.
Admittedly, I have not delved much into the discussion of “contempt against the dignity of Parliament” in my previous interventions because the interference with my parliamentary duties was compelling enough on its face. Accordingly on this point, may I briefly remind all hon. members of what O'Brien and Bosc note re prima facie privilege:
...some matters found to be prima facie include the damaging of a Member's reputation and the usurpation of the title of Member of Parliament...
It went on to describe the reputational damage cases which I cited in my first intervention and where the matter at hand accords with the established precedents. While I realize that the precedents in O'Brien and Bosc are somewhat more recent on this point, may I draw your attention to the 1987 remarks of Speaker Fraser:
The privileges of a member are violated by any action which might impede him or her in the fulfilment of his or her duties and functions. It is obvious that the unjust damaging of a reputation could constitute such an impediment.
While the government member assertions that “calls were within the bounds of typical political discourse”, I believe that once there is a false and misleading statement of fact made that there is or will be a byelection and that the member has resigned or is about to resign, this clearly crosses the line and is constitutive of reputational damage.
Again, Mr. Speaker, it is you who informs the House of vacancy in the representation, not any party and certainly not any unsolicited phone call.
I realize that determining contempt against the dignity of Parliament is a somewhat subjective test. On this point, I would direct you to articles in the Globe and Mail, the Toronto Star, the National Post, an editorial in the Ottawa Citizen, columns in Le Soleil and other papers that all similarly conclude that these calls are “black ops”, “sleazy”, “odious”, “disgusting”, “Watergate-like”, “a new low in politics”, and much more, the whole bringing members and this institution into disrepute, let alone the clear reputational damage involved.
On this point, Queen's University professor, Ned Franks, a noted expert on parliamentary procedure, referred to the calls as “disgusting...a perversion of the system of representation”.
Similarly, Carleton University political scientist, John Pammett, said:
People are confused and negative enough about politics that they don't need that extra push to make them think politicians are crooks or not telling them the truth.
I think those quotes and other like commentary speak for themselves.
Elsewhere in his intervention, the member for New Brunswick Southwest replied to an intervention from the hon. member for Saanich—Gulf Islands regarding a 1985 precedent involving a newspaper ad that identified the previous MP as being the sitting MP. The government member said:
This is not comparable to the dispute before us today, for a simple reason. The newspaper ad caused confusion by stating that the seat in question was held by someone other than the person who held it.
While there is no less confusion caused by the misrepresentation in the matter at issue that I have resigned or am about to resign, there is also a long-standing principle in this place, and one need only search Hansard to see it repeated time and time again, such as by the Deputy Speaker on January 31, 2003, by the Acting Speaker on April 7, 2008, and by the Speaker on April 19, 2007, let alone in law generally, “...you cannot do indirectly what you cannot do directly”.
Accordingly, stating that there is a pending or imminent byelection clearly implies that the member is no longer serving. I do not think for a moment that, just as we would not tolerate calls that say “so and so is no longer your member of Parliament”, we should equally not tolerate these calls which, in their effect, if not also in their intent, convey the same false and misleading information that breaches a member's privilege.
Again, Mr. Speaker, I draw your attention to Speaker Bosley's 1985 ruling, which reads:
...anything tending to cause confusion as to a Member’s identity creates the possibility of an impediment to the fulfilment of that Member’s functions. Any action which impedes or tends to impede a Member in the discharge of his duties is a breach of privilege.
Mr. Speaker, I will conclude by addressing the final remarks made by the government member. He asserts that this practice will result in you being called upon to “rule on all matters of political activity” and that “You are being asked to send the House into territory where it does not belong”.
While my previous interventions sought to demonstrate that the conduct at issue has nothing to do with normal political activity, let alone the absurdity of trying to validate it under free speech, false misrepresentation is simply not protected speech inside or outside this House. This misconduct clearly falls into the territory of a breach of privilege on which you are asked to rule and for which ample precedent, as I have cited, already exists and has yet to be countered by anything said by government members who have yet to cite any relevant and pertinent authority in this regard.
Any ruling you make, Mr. Speaker, is directly on the point of parliamentary privilege. In other words, people can still discuss politics and people can still traffic in rumours, however distasteful that may be, as I noted already, but the line is crossed when false, misleading and prejudicial information is presented as if it were fact. This is when it becomes and constitutes a prima facie breach of privilege and becomes actionable in the House as past Speakers in the House itself have found.
In this regard, I would draw the attention of all members to the finding of a breach of privilege in the 38th report of the Standing Committee on Procedure and House Affairs in the first session of the 38th Parliament on a matter regarding ten percenters and applicable to the matter before us. In the privilege case discussed in that report, mailings were sent to the wrong riding and, as such, contained references to “your MP that were inaccurate in terms of the member's positions, voting record and committee assignments”. This was found to breach the member's privileges.
Simply put, while I have intervened already in this matter to demonstrate that it has no relation to free speech, I would note that, with specific regard to false statements made about members, it has already been found that such matters may constitute a breach of privilege.
As such, whereas the government member asserted on Monday, Mr. Speaker, “you are being asked to send the House into territory where it does not belong”, let it be known that the House has already been there, has already pronounced and has already found that such actions may constitute a breach of privilege.
Mr. Speaker, I sincerely hope that there need not be anything more said on this matter, lest we spend more time discussing matters irrelevant to your ruling such that a breach of privilege somehow becomes protected speech or that false, misleading and prejudicial misrepresentations of fact are somehow said to be within the bounds of political discourse, or that somehow it is relevant as to what members did or did not invoke such privileges in the past as distinct from the principles and precedents where such privileges were invoked and applied.
In closing, Mr. Speaker, you have the authorities before you. The table clerks have been provided with the evidence. I have canvassed all the principles and precedents in this matter and applied them to the case at hand. It should be abundantly clear that the matter is one for the whole House to resolve and, as such, I urge you to find a prima facie breach of privilege with all deliberate speed.