April 20, 1971

PRIVILEGE

MR. BALDWIN-KEEPING OF DOSSIERS ON MEMBERS OF PARLIAMENT BY ROYAL CANADIAN MOUNTED POLICE

PC

Gerald William Baldwin (Official Opposition House Leader; Progressive Conservative Party House Leader)

Progressive Conservative

Mr. G. W. Baldwin (Peace River):

Mr. Speaker, I rise on a question of privilege in respect of which I have given Your Honour notice. Since it affects an issue which we discussed yesterday in the House, I understand that oral notice has been given to the Solicitor General as well.

When I raised my question of privilege yesterday I think Your Honour quite wisely indicated that before the matter was decided Your Honour might wish to avail yourself of assistance and advice from other members of the House on the general issue of whether or not there is a prima facie case of privilege, in the absence of which, of course, no motion could be put.

Let me make it clear at the outset that I do not challenge the right of the authorities, including the Royal Canadian Mounted Police, in matters involving the criminal law or security to deal with Members of Parliament as Canadians in the same way as other Canadians are dealt with, subject, of course, to their traditional rights and privileges which I shall cite to Your Honour later.

There was one exception to this. There was a fascinating case in the United Kingdom in 1939 when Mr. Duncan Sandys, a Member of Parliament, came into possession of certain information with respect to the armed forces. This is a well known case and is cited in many of the authorities. How the information came into Mr. Sandys' possession is not clear, but he went to the Minister of Defence and asked that it be confirmed. He said if the information was given to him he would remain silent. The minister did not confirm the information but shortly afterward Mr. Sandys was served with a summons. He went into the House, raised the matter as a question of privilege and, as I understand it, the House took the position that only with the approval of the chamber could the summons proceed. This approval having been given, the matter went forward to trial. That is really not the case here.

What we are dealing with here involves the traditional and proverbial rights of Members of Parliament. Both May and Beauchesne deal with this question to some extent. May, for example, in the eighth chapter of the seventeenth edition at pages 122 and 123 states that it is not proper to impugn the conduct of members in the House or to threaten them with future exposure if they take part in debates of the House. The author goes on to say-I am now quoting from page 123:

Conduct not amounting to a direct attempt to influence a member in the discharge of his duties but having a tendency to impair his independence in the future performance of his duty will also be treated as a breach of privilege.

I intend to establish my case by quoting to Your Honour statements from Hansard and from an interview conducted outside the House with the minister. It may be possible that the information collected with regard to Members of Parliament has been collected for no good reason and with no thought of future action, but if this is the case these files are no more than the product of a bureaucratic pack rat and ought to be destroyed.

I should like to quote from the British Bill of Rights:

That the freedom of speech in debates or proceedings in Parliament are not to be impeached or questioned in any Court or place out of Parliament.

This surely remains in force, Mr. Speaker, even if Members of Parliament do not know whose conduct is being impeached or questioned or for what reasons.

Beauchesne's Fourth Edition, paragraph 119 (2), reads as follows:

Freedom of speech is a sacred principle and if there is a place where it should be fully respected that place is the Parliament of the nation, and it is the Speaker's responsibility to see that this principle is not infringed upon.

Attached to the fourth edition of Beauchesne is a very interesting annex dealing with a report brought in by the United Kingdom Parliament on April 5, 1939. It is a very lengthy and useful report but I shall quote only two brief paragraphs. At page 428 of Beauchesne we find this statement:

The dignity and independence of the two Houses...are in great measure preserved by keeping their privileges indefinite. If all the privileges of Parliament were set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof to harass any refractory member and violate the freedom of Parliament.

My second quotation from the report is as follows:

Your committee would emphasize a point mentioned in the report which they made to the House in the last session of Parliament, namely, that the privilege of freedom of speech enjoyed by Members of Parliament is in truth the privilege of their constituents. It is secured to members not for their personal benefit, but to enable them to discharge the functions of their office without fear of prosecutions civil or criminal.

Having cited that as a very brief synopsis of some of the law, practice and precedents, I now put before Your Honour some of the statements made in this House yesterday and later outside the House. I am referring to page 5032 of yesterday's Hansard, and my first quotation is from a question put by the hon. member for Hamilton West (Mr. Alexander). He asked:

In view of the fact that some time ago one of the officials of the RCMP indicated to me during a meeting of the justice committee that perhaps there would be files on Members of Parliament in the event that complaints were made by constituents

April 20, 1971

RCMP Files on Members of Parliament

or members of the public, would the minister now advise whether, in the event of such complaint against a Member of Parliament, it is the policy to compile a dossier relating to that member?

Your Honour intervened at that point and then the hon. member resumed by asking:

May I ask whether, in the event of a complaint by a constituent against a Member of Parliament, the RCMP, rightly or wrongly, would compile a dossier relating to that member?

The ultimate answer given by the Solicitor General (Mr. Goyer) was:

Mr. Speaker, I do not intend to make a statement on motions. I feel I have replied to the question and if the member does not understand me clearly, I wish he could be more specific.

A little farther down on the same page the hon. member for Egmont (Mr. MacDonald) asked this question:

However, at this time I should like to ask him-

He is referring to the Solicitor General.

-through you, Sir, whether it is now the practice of the RCMP to photograph, and in other ways cover public meetings in which members of this House, as well as civic officials, might participate, as was recently indicated by the premier of Prince Edward Island?

The answer of the Solicitor General was:

Mr. Speaker, some hon. members seem to think that they are in the United States. I do not know whether it is the practice or not. What motivates the decisions of the Royal Canadian Mounted Police is the need to take action. There is certainly no systematic policy about citizens. Events lead us. If some methods have to be used with regard to an individual, it is because there is a clear indication that it is necessary.

On page 5033 the right hon. member for Prince Albert (Mr. Diefenbaker) asked a question, the last part of which is as follows:

Will the minister give his unequivocal answer that the Royal Canadian Mounted Police, for whom he speaks in this House, have not, and are not continuing to have, dossiers on Members of Parliament? Let that be clear and let the House have the answer.

The minister replied and I shall only read the latter part because the first part consisted of an eulogy of the RCMP, with which none of us differ, Mr. Speaker. He said:

Now, I find no provision in the law-and if there is, I should very much like to be enlightened about it-to the effect that Members of Parliament are not also citizens, that they enjoy complete immunity and that they can do anything. If the House wishes to pass such a provision, the people will think that hon. members constitute a special category of citizens in this country.

The right hon. member proceeded to ask another question:

Mr. Speaker, there is no debate. I asked the minister the simple question: Are there dossiers on Members of Parliament? Members do not expect to be treated differently from anybody else, but Members of Parliament have the right to know whether this government has launched upon a system of looking into the lives of individuals through the Mounted Police.

The minister replied:

Mr. Speaker, I said that the department applied no general policy in this respect, and I might add that for the time that

I have been Solicitor General, I have not seen the file of any member.

Mr. Speaker, later, outside the House, the minister was interviewed and the report contains two or three brief statements which I think are very relevant to this issue. This question was asked:

Does the RCMP have dossiers on all Members of Parliament?

A. I prefer this way to put questions than to be a little arrogant.

Q. No, sir, but you can't have dossiers on every citizen in Canada so I know that the RCMP have dossiers on some Members of Parliament?

A. Personally, as I said in the House, personally I never asked to see one dossier of a Member of Parliament and I have never asked to make an inquiry on one Member of Parliament-

The minister gave a further answer with which I should like to conclude, Mr. Speaker;

They might have dossiers on Members of Parliament. I am sure that they have dossiers on some Members of Parliament. You have Members of Parliament who are former civil servants and when a civil servant has to have access to top secret of course he has to accept the security clearance. This is normal and I think this is good.

Q. Now are you saying that it is not the policy to have dossiers on all M.P.S and you are also saying that you are not sure whether or not these dossiers do exist?

A. I am saying that there is no policy to the effect that we will have a dossier on all Members of Parliament. This is the information I have and this is the instruction-and also I am ready to give at any time but I am sure that I don't have to give those instruction. This is the practice.

Mr. Speaker, let me conclude with this very brief argument. I suggest that if you consider the compilation of all the questions and the answers given by the minister you will find there is no clear and categorical denial of the fact alluded to in the form of these questions, that dossiers are being kept in respect of some Members of Parliament as legislative representatives and that this constitutes an infraction of the privileges and immunities of this House. I suggest that this constitutes intimidation and a type of constructive blackmail that can only result in the diminishing of the freedom of members of this House. Surely it comes squarely within the definition of privilege which I have just outlined.

This refusal to give a straightforward and honest answer would be bad enough in connection with any government, but when it comes from a member of this administration which, with a few exceptions and in spite of some rather unbelievable expressions of affection for the parliamentary system, has shown by its actions that it is dedicated to the continuous erosion of legislative independence and freedom, it is unacceptable.

The neat question for Your Honour to decide now is whether a prima facie case has been made out, because more hinges on this than just this question alone. The minister's refusal to answer a consistent line of questioning both inside and outside the House must be interpreted as meaning that the minister is refusing for a very definite reason, and that reason lies in the fact that some dossiers are being kept and some scrutiny is being maintained on some Members of Parliament in their capacity as members. Does this extend to the point of interfering

April 20, 1971

with the telephones of members of this House? There is no question that if they can do the one they can do the other. I think this is an extremely important issue to be decided.

If the facts raise a reasonable probability of a prima facie case, then I suggest to you as Mr. Speaker and as a lawyer that the implications of a prima facie case are not such that we have to establish the point beyond a reasonable doubt and not even by a preponderance of evidence. If the facts indicate to Your Honour there is a doubt, that there is a possibility that the actions of the government and of the police authorities suggest there has indeed been maintained some form of scrutiny or some form of dossiers on Members of Parliament in the exercise of their legislative capacity as representatives of the people, that is a prima facie case. I would go further and suggest that if there is any doubt a parliamentary committee might well make an examination and assist Your Honour on that point. The matter is one which is entirely for Your Honour to decide and in doing so I think Your Honour is entitled to ask for assistance either in the form of advice from individual members or from a committee. I suggest further that if Your Honour should conclude there is a prima facie case on these facts, I would be prepared to consult with Your Honour and the House leaders concerning the form of the motion which might be put.

Topic:   PRIVILEGE
Subtopic:   MR. BALDWIN-KEEPING OF DOSSIERS ON MEMBERS OF PARLIAMENT BY ROYAL CANADIAN MOUNTED POLICE
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IND

Lucien Lamoureux (Speaker of the House of Commons)

Independent

Mr. Speaker:

I have listened with much interest and attention to the hon. member for Peace River. I do not wish to suggest that no reply should be made by someone on behalf of the government in respect of the hon. member's question of privilege, but in view of the prescription of the new rules the Chair has had an opportunity to give the matter serious thought, to look into the precedents and to consider the background of such questions. Therefore I believe I am in a position now to give my view, right or wrong, but I can assure hon. members that the conclusion to which I have come has been reached after listening very attentively to the hon. member and particularly after considering the matter since yesterday when it was first raised by the hon. member for Peace River.

The hon. member has, according to the provisions of section 2 of Standing Order 17, given notice to the Chair of his intention to raise the question of privilege he has now stated to the House. In his written notice the hon. gentleman stated that it was his intention to raise the same issue in relation to which he endeavoured to propose a motion during yesterday's sitting. That point may not be material at this time but I do suggest to the hon. member that what he raises today is a new and much broader question than the one he raised yesterday. In the notice given by the hon. member it is stated:

The issue involved of course is the breach of privilege involved in the extent to which there is likely to be intimidation of Members of Parliament to the extent to which they are subjected to scrutiny and inspection, and have records kept of them in their capacity as Members of Parliament by the RCMP or others on behalf of the government.

RCMP Files on Members of Parliament

This morning I had occasion to look back over the records of the House beginning with the year 1946 and I find that the question of alleged dossiers on Members of Parliament as such has been raised on a number of occasions. I might even say that it has been raised regularly and that there are many citations or quotations which hon. members might want me to bring to their attention. In particular, I might refer hon. members to Hansard for July 5, 1946, the first year in which my search began, at page 3201, when the then Minister of Justice stated in part:

The hon. member also asks if there are any dossiers on Members of Parliament. There are no dossiers on Members of Parliament as such.

Again, on January 29, 1958, as recorded at page 3948 of Hansard, the matter was renewed in relation to a question on the order paper. The then Minister of Justice provided an extended reply to the question. A similar reply has been made in answer to similar or related questions on a number of other occasions. In the time at my disposal I have come across the following examples: Hansard for October 29, 1962, at page 1011; Hansard for November 4, 1963, at page 4341; Hansard for November 28, 1963, at page 5210; and Hansard for May 3, 1966, at page 4632. Additionally, hon. members may be interested in reading the debate of some length on the very same subject which is recorded at pages 5161 to 5166 of Hansard for June 25, 1959.

The conclusion to be drawn from the questions asked and the answers given over an extended period of years is that hon. members have had reason to believe that dossiers might well exist in relation to individual Members of Parliament in their capacity as citizens at least, if not in their capacity as members as such. Also, in the same period the suggestion has come from successive ministers that if such files exist they relate to individuals in their personal capacity and not in their capacity as Members of Parliament.

The question is whether there are any special circumstances which might indicate that what was not considered privilege in previous years might be made the subject of such a question at this time. In my view there could be a prima facie case of privilege only if there were specific allegations or special circumstances leading to the conclusion that police or other activity is of such a nature as to interfere with a member in the discharge of his responsibilities in Parliament.

Hon. members may refer to Erskine May's classic definition of privilege often quoted in this House as it appears at page 42 of May's seventeenth edition. Parliamentary privilege is defined as the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the high court of parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the ordinary law.

According to this definition, privileges are those special rights recognized as belonging to Members of Parliament

April 20, 1971

Inquiries of the Ministry

over and above the law of the land as it applies to other citizens. Parliamentary privilege is the sum of extraordinary rights claimed by Parliament for itself to ensure that Parliament can function freely and without hindrance. These privileges are very limited in scope, and parliamentary law itself prescribes that this scope cannot be extended. Essentially, parliamentary privilege is, therefore, freedom of speech beyond the prescriptions of the common law in reference to libel and to slander.

Does parliamentary privilege as thus defined include a special right and exemption from the law, a special privilege providing an exemption from a practice which applies to other citizens equally? Do the very particular circumstances alluded to by the hon. member for Peace River constitute a prima facie case of breach of parliamentary privilege which might be referred, as suggested by the hon. member, to a committee for the purpose of advising the Chair?

I must say in all honesty and after much consideration of the matter raised by the hon. member for Peace River and the very important points made yesterday by the right hon. member for Prince Albert that it would be difficult for the Chair, in view of past practice, to conclude that in the present circumstances there is a prima facie case of breach of privilege. I suggest to hon. members that it would be imprudent of the Chair to project the question of police flies beyond the circumstances or conditions raised by the hon. member and beyond the particular circumstances alluded to by the minister in his reply to the House and in the statement made outside the House to which the hon. member for Peace River has alluded.

For the time being, and considering the very special circumstances, I cannot find a prima facie case of privilege on the facts as presented to the Chair thus far. I think I should insist that I consider the matter to be a very serious one, that certainly I recognize the duty of the Chair on behalf of all hon. members to ensure that it will be possible for them to discharge freely their responsibilities as Members of Parliament, and if any special circumstances were brought to the attention of this House and to the Chair that hon. members in any way, by police or other practices, were in some way intimidated in their work or prevented from discharging their duties freely and without hindrance I would have no hesitation in recognizing the matter as a breach of privilege. But I must rule at the moment on the particular circumstance brought to the attention of the Chair and decide whether there is a prima facie case of privilege on this basis. My finding must be that there is not.

Topic:   PRIVILEGE
Subtopic:   MR. BALDWIN-KEEPING OF DOSSIERS ON MEMBERS OF PARLIAMENT BY ROYAL CANADIAN MOUNTED POLICE
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ORAL QUESTION PERIOD

IND

Lucien Lamoureux (Speaker of the House of Commons)

Independent

Mr. Speaker:

The hon. member for Dartmouth-Halifax East.

Topic:   ORAL QUESTION PERIOD
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PC

J. Michael Forrestall

Progressive Conservative

Mr. J. M. Forrestall (Darimoulh-Halifax East):

Mr. Speaker, I shall wait until the Minister of National Defence returns to the House in order to welcome him back to Canada properly.

Topic:   ORAL QUESTION PERIOD
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PROPOSED TRANS-ALASKA PIPELINE SYSTEM-STUDY OF EFFECTS OF POSSIBLE POLLUTION FROM TANKERS- MEETING WITH UNITED STATES OFFICIALS

NDP

Thomas Clement (Tommy) Douglas

New Democratic Party

Mr. T. C. Douglas (Nanaimo-Cowichan-The Islands):

Mr. Speaker, may I direct a question to the Minister of Transport. It arises out of the growing evidence of increasing support in the United States for the Trans-Alaska Pipeline System, now supported by the President's Economic Council and by the U.S. Secretary of Commerce, Mr. Maurice Stans. Has any study been made by his department as to the possible effects of large oil tankers travelling between Valdez and Cherry Point and other points on the Pacific coast and, if such a study has been made, has it been completed and will it be made available to the members of this House?

Topic:   PROPOSED TRANS-ALASKA PIPELINE SYSTEM-STUDY OF EFFECTS OF POSSIBLE POLLUTION FROM TANKERS- MEETING WITH UNITED STATES OFFICIALS
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LIB

Donald Campbell Jamieson (Minister of Transport)

Liberal

Hon. Donald C. Jamieson (Minister of Transport):

Mr. Speaker, I would assume that by "possible effects" of the transportation of oil the hon. member means the possible effects of some disaster, natural or otherwise, in the transportation of oil. The answer is that studies are under way on this question and have been for some time, not all related to the particular project to which the hon. member has referred but generally in connection with our environmental studies. With respect to the west coast route we also have a study under way at the present time with regard to additional navigational aids and various forms and devices that might make the route safer. This study is not completed, but when it is I see no reason why it should not be made available to the House.

Topic:   PROPOSED TRANS-ALASKA PIPELINE SYSTEM-STUDY OF EFFECTS OF POSSIBLE POLLUTION FROM TANKERS- MEETING WITH UNITED STATES OFFICIALS
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NDP

Thomas Clement (Tommy) Douglas

New Democratic Party

Mr. Douglas:

Mr. Speaker, I would like to ask the minister if the information which his department has already collected as to the possible damage to the fishing industry and to the coast of British Columbia has been transmitted to the government of the United States, indicating the Canadian government's concern and the Canadian people's concern regarding the possible ecological damage to the west coast?

Topic:   PROPOSED TRANS-ALASKA PIPELINE SYSTEM-STUDY OF EFFECTS OF POSSIBLE POLLUTION FROM TANKERS- MEETING WITH UNITED STATES OFFICIALS
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LIB

Donald Campbell Jamieson (Minister of Transport)

Liberal

Mr. Jamieson:

Mr. Speaker, the normal channel for the transmission of such information would be through our own Department of External Affairs. The Department of Transport has certainly made all of the data available to that and other departments of the government, and I am sure that at least in part it has formed the basis of the communications and the fears that have been expressed already by that department.

Topic:   PROPOSED TRANS-ALASKA PIPELINE SYSTEM-STUDY OF EFFECTS OF POSSIBLE POLLUTION FROM TANKERS- MEETING WITH UNITED STATES OFFICIALS
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NDP

Thomas Clement (Tommy) Douglas

New Democratic Party

Mr. Douglas:

Mr. Speaker, I wish to direct one further supplementary question to the right hon. Prime Minister. In view of the fact that the Secretary of State for External Affairs has been corresponding with the United States Secretary of State regarding a possible meeting, may I first ask the Prime Minister if such a meeting has definitely been set, and if in the meantime the Canadian government has made any representations that the TAPS program not be proceeded with because of the possible dangers to the west coast of Canada?

April 20, 1971

Topic:   PROPOSED TRANS-ALASKA PIPELINE SYSTEM-STUDY OF EFFECTS OF POSSIBLE POLLUTION FROM TANKERS- MEETING WITH UNITED STATES OFFICIALS
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LIB

Pierre Elliott Trudeau (Prime Minister)

Liberal

Right Hon. P. E. Trudeau (Prime Minister):

Mr. Speaker, I do not know if the meetings to which the Secretary of State for External Affairs has referred in this House have taken place. I do not know when they were or are to be scheduled.

Topic:   PROPOSED TRANS-ALASKA PIPELINE SYSTEM-STUDY OF EFFECTS OF POSSIBLE POLLUTION FROM TANKERS- MEETING WITH UNITED STATES OFFICIALS
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LIB

Pierre Elliott Trudeau (Prime Minister)

Liberal

Mr. Trudeau:

Mr. Speaker, I have an answer to a question which the leader of the New Democratic Party asked me earlier, if I might be permitted to give it. It relates to the meetings between the Canadian government and the Department of State in Washington on the question of the pollution of the Pacific as a result of possible oil transportation from Alaska to the northwestern United States. I have been informed that there has been agreement to set the meetings for May 3 and they will take place on that date.

[Later: ]

Topic:   PROPOSED TRANS-ALASKA PIPELINE SYSTEM-STUDY OF EFFECTS OF POSSIBLE POLLUTION FROM TANKERS- MEETING WITH UNITED STATES OFFICIALS
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IND

Lucien Lamoureux (Speaker of the House of Commons)

Independent

Mr. Speaker:

I believe the hon. member for Comox-Alberni has a supplementary to the prior question.

Topic:   PROPOSED TRANS-ALASKA PIPELINE SYSTEM-STUDY OF EFFECTS OF POSSIBLE POLLUTION FROM TANKERS- MEETING WITH UNITED STATES OFFICIALS
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NDP

Thomas Speakman Barnett

New Democratic Party

Mr. Thomas S. Barnelt (Comox-Alberni):

Mr. Speaker, I have a question related to those asked by the hon. member for Nanaimo-Cowichan-The Islands of the Minister of Transport. Are any discussions or negotiations going on with the province of British Columbia leading to the establishment of permanent protective arrangements, along the lines recommended by the Arrow task force, for oil leakage prevention and clean-up on the Pacific coast?

Topic:   PROPOSED TRANS-ALASKA PIPELINE SYSTEM-STUDY OF EFFECTS OF POSSIBLE POLLUTION FROM TANKERS- MEETING WITH UNITED STATES OFFICIALS
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LIB

Donald Campbell Jamieson (Minister of Transport)

Liberal

Mr. Jamieson:

Not specifically with the government of British Columbia as of this moment. However, the recommendations that came from a committee of this House and from the McTaggart-Cowan group with regard to the establishment of a contingency plan are nearly completed. Many parts of them are in fact complete, and when this is done we will be discussing them with all of the provinces that have coastal waters and that are concerned about those waters, as we are. That should be within the next month.

Topic:   PROPOSED TRANS-ALASKA PIPELINE SYSTEM-STUDY OF EFFECTS OF POSSIBLE POLLUTION FROM TANKERS- MEETING WITH UNITED STATES OFFICIALS
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NATIONAL PARKS

QUEBEC-ESTABLISHMENT OF PARK IN TEMISCAMINQUE

April 20, 1971