September 21, 1971

PC

Robert Lorne Stanfield (Leader of the Official Opposition)

Progressive Conservative

Mr. Stanfield:

We have never had a government like this before.

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PC

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

Progressive Conservative

Mr. Baldwin:

Yes, as my leader says, we have never had a government like this before, and that is part of the argument I propose to develop.

After the reform act of the United Kingdom and following upon responsible government in this country, for a number of years we had a situation where certain wholesome restraints were capable of being exercised against the executive. I shall have a later opportunity if and when Your Honour grants the motion to argue that this government is the worst offender, but there has been a tremendous and fantastic growth on the part of the executive, perhaps required by the conditions of the society in which we live. Nevertheless, I would suggest to Your Honour

September 21, 1971

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that this growth, coupled with our decreasing power and opportunities for exercising that restraint which this House possesses, should make us alert and vigilant to find ingenious ways of controlling a capricious executive. I therefore suggest I am entitled to make this motion and to urge upon Your Honour that this argument regarding the use of the remedy of impeachment is one that should be considered.

I have almost completed what I want to say, Mr. Speaker, but I should like to put my final argument on as high a plane as I can. It is this. I would commence by citing a remark made by Lord Brougham referred to in the book I mentioned on federal impeachments by Alex Simpson. Lord Brougham made this appropriate comment, that the right of impeachment was so large and so capacious that he could place no bounds on it either in space or time. He went on:

The House of Commons might impeach for whatever was indictable but they might also impeach in cases where no indictment could be found ... In short, this maxim has been laid down as irrefragable and whatever mischief is done, and no remedy could otherwise be obtained, it is competent for Parliament to impeach.

This is supported in a Canadian publication by Alpheus Todd. In his book, "Practices and Privileges" of the House of Commons, this is stated at the beginning of chapter 18:

The High Court of Parliament is the supreme court of the Kingdom, not only for making, but also for the execution of the laws by the trial of great offenders ... by a method of parliamentary impeachment. This custom of impeachment, says Blackstone, has a peculiar propriety in our constitution. It may happen that a subject entrusted with the administration of public affairs may infringe the rights of the people and be guilty of such crimes as the ordinary magistrates either dare not or cannot punish.

On the next page it is stated:

It is absolutely necessary for the preservation of our liberties and the safety of our constitution that the Commons should possess this extraordinary power of bringing great offenders to justice.

Mr. Speaker, I do not think we can forget that over the course of the last 15 or 20 years, particularly in the last eight or nine years in Canada, there has been this fantastic increase in the powers of the executive, with the result that in the parliamentary structure, through changes in rules and practices, it has become increasingly difficult to deal with an arbitrary and arrogant executive.

If there is any doubt about the right of the executive to be bound by the law, I would refer Your Honour to a judgment of the Supreme Court of British Columbia by Mr. Justice Norris, dealing with the case of Mr. Gaglardi, a minister of the Crown in that province. He said:

It is the duty of members of the executive to obey the law, not to disregard it, and they must ascertain the law in order to obey it. The matters of the practice and policy of the government or any department thereof cannot override the duty of obedience to the law, nor will it avail a minister of the Crown to say that he acted on legal advice when it turns out to be wrong.

This judgment is not necessarily binding on Parliament but I adopt and concur in those words, and I say they are the words which Your Honour should have in mind. I suggest that these conclusions follow: This House possesses and enjoys the power to impeach high officials of government in respect of their conduct in office; the House as a whole has no alternative procedural remedy to

the power of impeachment although the government possesses the preliminary aspects of a substitute power in its control of the Inquiries Act; the House, possessing this right and having no alternative remedy, cannot be deprived of the exercise of this right and it is for the House to determine the incidental procedures and orders necessary to its exercise.

Finally, I suggest that it is the crowning glory of the parliamentary system that it has this flexibility, that wherever there is a wrong there must be a remedy, and wherever there is a difficulty there must be some means found by this Parliament to deal with it. I suggest it is a duty falling upon every member of this House and upon the Chair, who is the guardian of the privileges, duties and obligations of the House, to be ingenious to assure our supremacy, and that the writ of this highest court of the land must be made at all times to run above even the views of the Prime Minister or cabinet ministers.

The Prime Minister has said, as have others, that we are entering an era of contest, a contest between the rule of order and reason and the rule of violence in the streets. If those who are sitting in authority above us refuse to obey the rule of order, what hope is there for us to win this battle?

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?

Some hon. Members:

Hear, hear!

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LIB

Allan Joseph MacEachen (President of the Privy Council; Leader of the Government in the House of Commons; Liberal Party House Leader)

Liberal

Hon. Allan J. MacEachen (President of the Privy Council):

Mr. Speaker, I listened with a great deal of interest to the long statement made by the hon. member on the other side of the House on what he described as the process of impeachment in the Canadian House of Commons. In spite of the long statement and the call to you and to the House to respond, the hon. member has not made clear yet what that process is, what an article of impeachment is and, if an article of impeachment is framed-whatever that is-what you do with it, and if you get it and it is carried what happens to the person who is impeached.

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?

Some hon. Members:

Oh, oh!

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LIB

Allan Joseph MacEachen (President of the Privy Council; Leader of the Government in the House of Commons; Liberal Party House Leader)

Liberal

Mr. MacEachen:

I do not really know from what the hon. gentleman said whether an impeachment is a benefit or an injury to an individual. It is just a word that has obviously appealed to the imagination of the hon. member who ingeniously decided to throw some dust in our eyes at the very time when the House is being asked to pass the agricultural stabilization bill which will provide for the payments complained about by my hon. friend and will in fact provide those payments plus more.

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PC

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

Progressive Conservative

Mr. Baldwin:

You are still wrong.

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An hon. Member:

You missed the main point.

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?

Some hon. Members:

Oh, oh!

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An hon. Member:

Where is your argument and your credibility?

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?

An hon. Member:

What credibility?

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LIB

Allan Joseph MacEachen (President of the Privy Council; Leader of the Government in the House of Commons; Liberal Party House Leader)

Liberal

Mr. MacEachen:

Mr. Speaker, I am sure I am getting much more reaction from the House than did my hon. friend.

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?

An hon. Member:

You deserve it.

September 21, 1971

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PC

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

Progressive Conservative

Mr. Baldwin:

I said something worth listening to.

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LIB

Allan Joseph MacEachen (President of the Privy Council; Leader of the Government in the House of Commons; Liberal Party House Leader)

Liberal

Mr. MacEachen:

I do not know whether that is a good reason for impeaching the hon. member for Peace River (Mr. Baldwin), but in any event, having stated that the hon. member did not really make clear what he means or what he is asking us to do, what the process of impeachment is or when it was used last, let me say that I read the hon. gentleman's private notice of motion and made some very preliminary inquiries about the process of impeachment in Canada. Certainly I could find no instance in modern times in this House when any person was impeached, and the most recent case I could find in the United Kingdom was in 1805.

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?

Some hon. Members:

Oh, oh!

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LIB

Allan Joseph MacEachen (President of the Privy Council; Leader of the Government in the House of Commons; Liberal Party House Leader)

Liberal

Mr. MacEachen:

I discovered it was a process, developed before responsible government, which has long since been abandoned and has not been used in any modern Parliament. As a matter of fact, the only modern case of impeachment I could find took place in the Chateau Laurier when Mr. Dalton Camp impeached the right hon. member for Prince Albert.

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?

Some hon. Members:

Hear, hear!

Topic:   WITHHOLDING BY GOVERNMENT OF PAYMENTS UNDER TEMPORARY WHEAT RESERVES ACT-SUGGESTED CONSIDERATION OF MOTION TO ESTABLISH IMPEACHMENT COMMITTEE
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?

Some hon. Members:

Oh, oh!

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LIB

Allan Joseph MacEachen (President of the Privy Council; Leader of the Government in the House of Commons; Liberal Party House Leader)

Liberal

Mr. MacEachen:

I am not sure that the hon. member for Peace River is suggesting that as a precedent for use in the House of Commons. I do not seriously regard impeachment as a process that is applicable to our proceedings. If the opposition wishes to complain about the government or wishes to accuse the government, it has two procedures open to it. The first is a motion of censure, as was recently outlined by Your Honour, which can be moved as a substantive motion complaining against an action or lack of action on the part of the government. In due course, probably later this week on Thursday, we will be setting down an allotted day in order that the opposition can bring a motion to accuse the government of action or inaction, or to discipline it for the policy it is following. That is a well known procedure and seems to be the kind of procedure that ought to be followed if the hon. member wants to develop a grievance against the government. The other procedure is to accuse an individual member of the House of wrongdoing. Probably, although the hon. member did not say so, he had in mind that by indirection he would ask the House to agree with him that wrongdoing had been undertaken by a minister or by a group of ministers.

In the Oxford Dictionary definition of impeachment there are these words: "To accuse a person of treason or other high crime before a competent tribunal." If the purpose of the article of impeachment or the process of impeachment is to accuse a minister of wrongdoing, of misconduct or of being a criminal or a lawbreaker, there is another course open to the hon. member. Your Honour has often told the House how that process can be developed and its consequences. You will recall the classic ruling made by Mr. Speaker Michener. When he laid down, it seemed to me to be the procedure which must be followed forever and a day in this House of Commons if

Withholding of Grain Payments

any hon. member is to accuse another hon. member or group of hon. members of misconduct.

What greater misconduct is there than treason or high treason as envisaged in the process of impeachment? What greater misconduct can be alleged against a minister than that he is willingly and deliberately breaking a law of the land which he is sworn to uphold? If that is the charge, then the hon. member should put it down in the explicit form of a motion setting forth a bill of particulars. When he has done that, if Mr. Speaker regards it as a prima facie case of privilege it goes to the committee, and if the committee upholds the motion then action will be taken against those convicted or found guilty of wrongdoing. If not, the irresponsible person who has made the accusation is then expected to take the serious consequences.

I would say that if the hon. gentleman wants to accuse the Minister responsible for the Wheat Board or some other minister of wrongdoing or misconduct he must do it directly and must put it directly in a motion and the House will deal with it.

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September 21, 1971