Canada, House of Commons Debates, “Mr. Kilgour—Suggested Illegality of the Resolution on the Constitution”, 32nd Parl, 1st Sess (2 April 1981)


Document Information

Date: 1981-04-02
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 8890-8902.
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COMMONS DEBATES — April 2, 1981

PRIVILEGE

MR. KILGOUR—SUGGESTED ILLEGALITY OF THE RESOLUTION ON THE CONSTITUTION


[Page 8890]

Madam Speaker: I am now ready to rule on the question of privilege raised by the hon. member for Edmonton-Strathcona (Mr. Kilgour).

Mr. David Kilgour (Edmonton-Strathcona): Madam Speaker, I will be brief. I apologize to the Chair for not speaking more concisely yesterday. It is my habit to speak concisely about matters.

Madam Speaker: Order. I thought I had given the hon. member enough time to expose his question of privilege. I felt that if he allowed me, I would rule right now on his question of

[Page 8891]

privilege. I know it was six o’clock, but he obviously had come to the end of his argument. As a matter of fact, he indicated that he was at the end of his argument. If anything, all I could allow would be that he finish his last sentence.

Mr. Kilgour: Madam Speaker, I thought about this last night and I think I can state the essence of my point—in a somewhat different way from the way I stated it yesterday—in about two minutes, if you will permit me.

Some hon. Members: Order.

[Translation]

Madam Speaker: I realize it is a good thing to sleep on it and that is probably what happened. But it was yesterday that the hon. member argued his question of privilege. Of course he still had the floor at six o’clock and I had to interrupt him because the sitting was over. However, I remind him that I will give him exactly two minutes.

[English]

Mr. Kilgour: Madam Speaker, I believe the position of the Chair is that you cannot find that we lawyers have a question of privilege, because to do so you would have to find that the matter is illegal. Your Honour said that we have the right to vote or not to vote. My respectful submission is that the way that ruling stands at the moment—

Madam Speaker: Order. I am sorry, but the hon. member is commenting on the ruling I made. Would the hon. member please resume his seat. I made that ruling quite specifically and answered those arguments, so the hon. member cannot come back on that ruling. I have determined that those arguments are not relevant to the question.

Mr. Kilgour: Madam Speaker, in the minute and a half I have left, let us suppose the Supreme Court of Canada ruled that this measure was illegal.

Some hon. Members: Order.

Mr. Kilgour: It seems to me that by the jurisprudence referred to by Your Honour and by Your Honour’s ruling, if the absurd notion of the Prime Minister (Mr. Trudeau) that what the courts say does not matter here were upheld, with the utmost of respect Your Honour would then be in precisely the same position. If the Supreme Court of Canada ruled that this proposal was illegal and we were asked to vote on it—we would not be forced to vote the position is that no one would attack us for voting. In my respectful submission, unless Your Honour takes a wider, newer or more expansive view of the privileges of members, that is precisely the position members of Parliament will be in.

I suppose Your Honour is going to cut me off. I thank you for listening so attentively.

Madam Speaker: I am ready to rule on the hon. member’s questionof privilege. However, yesterday when the hon. member offered me a hypothetical argument as to what would happen, for instance, if this House were to make a motion to send all of the women of this House to the moon, I was about to jump to my feet and say that that motion was quite in order, except that I might want to know whether there is a Parliament up there!

Some hon. Members: Oh, oh!

Madam Speaker: Of course, hon. members would not know why I want to know whether there is a Parliament up there. I can tell them I want to know so that I can decide whether I want a job or want to be relieved of one! That is my secret.

Some hon. Members: Oh, oh!

Some hon. Members: Hear, hear!

Madam Speaker: The hon. member began his argument by quoting from Erskine May. He read the first paragraph on page 67 of the nineteenth edition. Following that, he enjoined me to take a broader look at what constitutes privilege. He did refer to my inexperience in legal matters. I confess to that. Although I confess to inexperience in legal matters, I am beginning to have some experience in parliamentary procedure, and that is the business I am in.

Some hon. Members: Hear, hear!

Madam Speaker: If the hon. member has such experience in legal matters, I am surprised, that he did not read the whole paragraph. I will read it to him.

Mr. Kilgour: That is because of experience.

Madam Speaker: That is because he is experienced, quite right!

Some hon. Members: Oh, oh!

Madam Speaker: I can tell the hon. member that he is protected from any damage which might occur to him should he be forced by this House to do a number of things that he finds illegal or improper.

The second paragraph on page 67 of Erskine May reads:

The particular privileges of the Commons have been defined as: “The sum of the fundamental rights of the House and of its individual members as against the prerogatives of the Crown, the authority of the ordinary courts of law and the special rights of the House of Lords”.

In other words, May says that the hon. member is protected by parliamentary immunity. That is what it is all about. Members in this House can say whatever they feel they should say, and they are protected if they say it within the precincts of this House.

Incidentally, the hon. member had two questions of privilege; he argued them both at the same time. He argued the one about his oath, which would put him in conflict with what he is doing in the House. The second one had to do with the rules of the Bar association, which he would have to contravene if he were dealing with the constitutional motion.

[Page 8892]

The question of the oath has been answered. On the second point, the hon. member wants me to apply the rules of the Bar associations of the different provinces to this House. This House is run by the rules of the House, not by the rules of the Bar associations.

I have to tell the hon. member that he does not have a question of privilege on that basis. He did not bring forward any new argument to convince me that he has a question of privilege.

I want members to take note that I have ruled on both those questions of privilege.

REPETITIVE QUESTIONS OF PRIVILEGE

Madam Speaker: I have something to say about the number of questions of privilege that I have on the same matter. I think it was demonstrated yesterday, as speakers rose to defend their questions of privilege, that it is difficult for members to argue them without referring to my previous rulings and also without repeating the arguments which other colleagues have already put forward in their presentations.

Because I cannot allow members to comment on my rulings or refer to them during the debate which follows, I realize that members will be obliged to repeat those same arguments. In fact, three members in a row have repeated the arguments, and the Chair is placed in the peculiar position of having to listen to the same argument on each question of privilege that is raised. The Chair must listen to all members who give notice of a question of privilege. There is no doubt about that according to our Standing Orders. However, the Standing Orders do not provide that the Chair must listen to the same questions several times over. If I read the wording governing questions of privilege, it would be quite obvious to them that in this case we have questions of privilege that are all similar. I do not find it said anywhere that the Chair must listen to the same question of privilege several times over.

Because it will be difficult to pursue these questions of privilege without repeating the arguments and referring to the rulings that I have made, I am going to ask the hon. members who have submitted questions of privilege on the matter of the Constitution to withdraw them voluntarily.

I think hon. members realize that they themselves will have difficulty defending them, and it will be practically impossible to deal with these questions of privilege because of the constraint I will have to put on members regarding the repetition of arguments and reference to my rulings. Therefore, I ask those members who have submitted questions of privilege to withdraw them voluntarily. I will commence with the question of privilege of the hon. member for Lethbridge-Foothills (Mr. Thacker).

Hon. Erik Nielsen (Yukon): Madam Speaker, before putting that proposal to hon. members, because of the rather unusual course which the Chair might be embarking upon, may I suggest that perhaps the more proper course to follow would be to hear members individually.

I say that for two reasons. First, while it is totally improper for an hon. member to question or comment negatively on the Chair’s ruling, there is certainly no stricture on an hon. member to comment favourably on the Chair’s ruling. We are doing it all the time by referring to precedents.

Second, and perhaps more important, the Standing Order requiring notice to be given of questions of privilege requires that notice be accompanied by a brief statement of the subject matter of the question of privilege intended to be raised. Given that a notice you have contains a brief statement—I do not know what kind of statement is contained in the notice but I assume it is brief, consisting of one or two sentences—it seems to me that the fairer practice might be, rather than embarking upon a totally new precedent which may prove to be undesirable in the future, at least to hear the hon. member who has given notice until such time as the Chair determines it is, in fact, the same question with which the Chair has already dealt. Therefore, it seems to me it would be fairer for the hon. member who has given notice to be allowed to develop his submissions to you to the point where the Chair finds there is duplication.

I think it would be extremely undesirable if the Chair were to rule now that there was a discretion in the Chair simply to read the notice, accompanied by the brief statement required under our rules, and to rule on the acceptability of a question of privilege merely on the basis of the notice and the brief statement.

I therefore urge you, Madam Speaker, to hear the hon. member at least until the Chair has formed an opinion one way or another that there is a duplication, at which time I totally agree that the Chair would be justified in saying the matter is intruding upon subject matter that the Chair has already rendered a ruling upon. I think the hon. member should be allowed to proceed to that extent.

[Translation]

Mr. Jacques Olivier (Longueuil): Madam Speaker, I rise on a point of order. I am sorry to take up some of your time with this matter, but I believe that it is extremely important to remind the House of what you have just said in effect that when the similarity among several questions of privilege is such that only a few words differ, it is obvious, normal and also logical for you to make a ruling on all of them at the same time.

I believe that if you could not make a ruling on all of them at (one time, the privileges of the House as a whole might be threatened since every hon. member is a legislator, and as such, has the right to speak on legislative measures and not only on points of order or questions of privilege.

The problem, Madam Speaker, is that if you are not given the right to make a ruling on a group of similar questions of privilege which contain about the same words, we shall be prevented as legislators from playing the role for which we

[Page 8893]

have been elected. This is why I support your decision, Madam Speaker, and I ask that you apply it.

[English]

Mr. D. M. Collenette (Parliamentary Secretary to President of the Privy Council): Madam Speaker, I find the intervention of the hon. member for Yukon (Mr. Nielsen) a little offensive at this point. You indicated that you were about to proceed with a ruling. That is not subject to any questioning.

Mr. Nielsen: No.

Mr. Paproski: The Speaker did not rule.

Hon. Ray Hnatyshyn (Saskatoon West): Madam Speaker, I know the parliamentary secretary did not intend intentionally to mislead the House by that observation. I am sure Your Honour will confirm you were indeed inquiring of members who had filed notices of questions of privilege whether they wanted to withdraw their question of privilege. It is for the members, at the request of the Speaker, to make a decision. With respect to the intervention of the hon. member for Olivier, the person who shares an apartment with the Minister of Energy, Mines and Resources (Mr. Lalonde)—

[Translation]

Mr. Olivier: Madam Speaker, on a point of order—

Madam Speaker: Order, please!

Mr. Paproski: Sit down!

An hon. Member: When the Speaker is standing you have to sit down.

Madam Speaker: We are already on a point of order and there cannot be two at the same time. I shall ask the hon. member for Saskatoon West (Mr. Hnatyshyn) to conclude his point of order, and afterwards, if the hon. member for Longueuil wishes to rise on another point of order, I shall be able to hear him.

[English]

Mr. Hnatyshyn: Madam Speaker, initially I have to apologize to the hon. member for Longueuil (Mr. Olivier). He is a distinguished member of this House. He is a handsome, intelligent and concise man and I do not want to offend him by calling him by his own name.

The point I want to make is that if members are not allowed at least to make an initial statement with regard to their question of privilege, that would be an unfortunate precedent. In the course of carrying out your duties, Your Honour has the discretion at a particular point in time to ask an hon. member to get to the point. Indeed, you may not be satisfied that there is a question of privilege. If we look ahead to the consequences of not allowing members to have the opportunity to make an initial statement on their question of privilege, we may regard that as an unfortunate precedent. I wanted to clarify this because the parliamentary secretary did interject and I wanted to explain the point to him.

Mr. Jack Shields (Athabasca): Madam Speaker, the hon. member for Longueuil yelled across the floor for me to shut up, which is unparliamentary language. I would ask the hon. member to withdraw it.

Madam Speaker: That is not an unparliamentary expression, although I am not sure that it is in the best of taste.

Mr. Hnatyshyn: That is what you get for living with Lalonde.

Mr. Paproski: You don’t say that in your apartment.

Madam Speaker: I understand from the intervention made by the hon. member for Yukon (Mr. Nielsen) that he is expressing a view on this subject. I want to say that I did not intend to rule from the written notices. That is not allowed by our rules. It is allowed in the rules or practices of the Parliament at Westminster, but not in our rules. I was not suggesting that I would walk into the House and rule on questions of privilege on the basis of the statements I had received. In the same manner, I do not suppose that the hon. member for Yukon wants to speak for all members who have submitted notices of questions of privilege. Therefore, I will ask them individually.

The only thing I was asking was whether these members would voluntarily withdraw their questions of privilege, taking into account they would be in quite great difficulty. I am giving them notice now that I will not accept an argument that has already been given and I will not accept any negative comments on my ruling-and I thank the hon. member for making the difference between the negative and the positive— It will be difficult to defend those questions of privilege because, as I said, they are similar.

I will ask the individual members if they want to withdraw. If they do not, that is their own decision. I will ask them individually if they wish to withdraw and then I will proceed. Does the hon. member for Lethbridge-Foothills (Mr. Thacker) want to withdraw?

Mr. Blaine A. Thacker (Lethbridge-Foothills): With respect, Madam Speaker, I would normally comply immediately with a request from the Chair, but in this instance, and because I did not hear all of the rulings given yesterday, only part, I believe I have a couple of points that would be a niche in the rulings you have given. My comments will be very brief, lasting perhaps five minutes. I am hoping they will give a perspective that Your Honour would appreciate and which would help you in your over-all ruling.

Madam Speaker: I understand the hon. member does not want to withdraw. I want to remind the House that the circumstance that the Chair should have so many questions of privilege to hear is quite unprecedented. Never in the history of Parliament have we not been able to reach the orders of the day for such a long period. I am told that never in the history

[Page 8894]

of any Parliament has the Speaker had to be in the chair for so many consecutive hours. Apparently that has never happened in any Parliament that we know of, so the circumstances are really unprecedented.

Mr. Nielsen: The pipeline debate.

Madam Speaker: The hon. member is referring to the pipeline debate. Not even during that period did that happen. However, there are rules regarding the question period; questions should be short, answers should be short. There are rules in the Standing Orders about the length of debate; sometimes it is 40 minutes, 30 minutes or some other length of time. There are rules which are quite strict and they are followed by this House. There are rules about the number of times a member can speak on a particular question. However, there are no rules on matters of privilege.

Therefore, I will use my discretion, in view of the unprecedented circumstances in which the House finds itself, to determine that no member will speak more than five minutes. A member must make the point to me in five minutes that he has the basis for a question of privilege; I remind members they need not debate a question of privilege but need only indicate to me that they have the basis for a question of privilege. Members may debate it once I have determined there is a prima facie case of privilege, but they need not do that in the course of presenting their question of privilege.

I now inform all hon. members that I will give them five minutes. I will then have to cut them off in fairness to all members. That is a discretion I am exercising because of the circumstances.

Mr. Nielsen: Madam Speaker, because the Standing Orders and all of our precedents make no reference whatsoever to any time limit on questions of privilege or points of order, I would hope that by now exercising a discretion to impose a stipulated time limit the Chair is not setting a precedent or altering our Standing Orders to that extent. I would have felt very much better if you had come to that conclusion and not told us anything about it. To let it stand in Journals as a ruling from the Chair that there is to be inserted in our Standing Orders a precedent which limits an hon. member rising on a question of privilege to five minutes, I think, is very undesirable.

I am sure you may well wish to consider that you may have misdirected yourself in the interpretation of what you have just said if members conclude that there is now and henceforth a five-minute limitation on questions of privilege. I do not think the Chair intended to alter our Standing Orders to that extent. As I say, I would have felt much happier as a member if you had come to that conclusion silently and determined that was what you were going to do, and then give a member five minutes to discuss his question.

I do not think there should be any doubt whatsoever here that our Standing Orders are in any way so altered that we are now to understand there is a specific time limit on members of Parliament who wish to raise questions of privilege. I have raised questions of privilege over a period of time.

Some hon. Members: Oh, oh!

Mr. Nielsen: Hon. members should read the rules, because we are here embarking on entirely new ground when we speak about time limitation on questions of privilege. I have raised matters that have been accepted and referred to standing committees which took a good deal longer than five minutes to develop in order to convince members of the House on all sides they were deserving of sending to standing committees.

I hope that you, Madam Speaker, would at least say from the chair, if it is your intention to deal with these questions of privilege which you consider to be overlapping a ruling you have already made by giving the hon. member a fair warning that if he cannot develop it in five minutes you will be disposed to conclude that he cannot develop it at all, that there is no practice or custom of this House, and no Standing Order or precedent, which imposes any specific time limit.

The discretion is entirely with you, Madam Speaker, as to how long you have to listen. I suggest it would be far better left at that. If you had not heard after listening for five minutes to these overlapping questions sufficient to convince you that there was a different dimension to the question of privilege or that it was a new question of privilege, then you would, of course, exercise your discretion. I certainly hope you will reaffirm that you are not injecting into our precedents a new rule, order or practice which means that in every case there is to be a five-minute time limit on questions of privilege raised by members.

Madam Speaker: There is no doubt that I did not say this would constitute a precedent, and I did not say it would apply to other questions of privilege on matters other than the one we are now discussing; that is to say, those questions of privilege which deal with the Constitution, the wording of which is similar. This certainly does not in itself change the Standing Orders, which say nothing on this matter, by the way. Since Standing Orders say nothing, somebody has to say something and I guess that is the Chair.

If the hon. member would rather I apply the five-minute limit and not warn members they will not be having a great deal of time to expose their arguments, I could have done it that way. I thought it was much fairer and easier for members if I gave them that warning. If the hon. member would rather this whole thing remain unsaid, I do not mind “unsaying” it. I am just telling the House now that I intend to use this discretion and I will be quite firm about it.

Mr. Nielsen: Madam Speaker, may I just quickly comment that the Chair has very skilfully and quickly clarified the matter to my complete satisfaction.

[Page 8895]

MR. THACKER—ALLEGED ILLEGALITY OF CONSTITUTIONAL RESOLUTION

Mr. Blaine A. Thacker (Lethbridge-Foothills): Madam Speaker, I rise to speak on this question of privilege in respect of which I hope you will find a prima facie case. I hope never in my lifetime or in yours will we again face what we are facing today. We are, indeed, in tough times. The government, as a result of this resolution, has put us in the position that we are really in a fight for the hearts and minds of Canadians.

I am sure, Madam Speaker, you are feeling the loneliness of high judicial office, because you really are on your own. You have joined an elite group of men and women across this country who are occupying positions at a high judicial level. I am sure you have a much clearer understanding of Beckett and his relationship to the Crown.

The issue before you in my question of privilege is whether or not Parliament can pass a law which in its present form is illegal. I submit to you that in your high judicial capacity you stand fifth in line in this nation, starting with the Governor General, the Prime Minister (Mr. Trudeau), the Chief Justice of the Supreme Court of Canada, the Speaker of the Senate and then you as Speaker of this House. In that very unique and high position you are bound to know, by virtue of the concept of judicial notice, that the present constitutional resolution is illegal.

Up until two days ago we were involved in this battle for the hearts and minds of Canadians. The government has a view as to what it wants to do in terms of an amending formula, an entrenched charter and a referendum. We on this side, of course, have a different view of what Canada is as we perceive it. Even when the Manitoba Court of Appeal made its ruling the resolution was still legal because it had not been declared illegal. However, as of two days ago when the Newfoundland Court of Appeal ruled, that constitutional provision became illegal. You are bound by that through judicial notice.

It follows from the Newfoundland decision that all of us find ourselves in a very unique capacity; some in their capacity as ordinary members of the House, some in their capacity as lawyers, some as former members of a cabinet and members of the Privy Council, existing cabinet ministers and you, Madam Speaker, in your high capacity, fifth in order in this nation in terms of precedent. It is within that context that we find ourselves involved in this question of privilege.

I stand by that position in asking you to find a prima facie case and refer the question to a committee. If you were to find a prima facie case, all these questions of privilege would go before a committee where we could debate this whole matter. This is a precedent and a first in the entire history of this country, as I understand it, in that we have a resolution which has been referred to the Supreme Court while it is still being debated in the House.

The perfect analogy, which I do not believe you have considered yet, would be Bill C-60. As you know, it came before this House and went to a committee. There were some problems and it was referred to the Supreme Court of Canada.

The Supreme Court found it to be illegal and the bill then died. The analogy with the position we are in today would be, if the day after the Supreme Court of Canada declared Bill C-60 ultra vires of Parliament the government had reintroduced Bill C-60 in the House, in effect asking members to continue to debate the bill even though the Supreme Court had declared it illegal.

I think under those circumstances we would all be in a terrible dilemma in terms of constitutional law, yet that is exactly the point that we find ourselves at today. You have pointed out, Madam Speaker, that we are protected and, in terms of ordinary criminal law or civil law, that is true; but it is not true in terms of our general reputation in the community. Just as members who are clerics, men of God who have made a direct oath to their faith that they will uphold laws—

An hon. Member: Five minutes.

Mr. Thacker:—that are higher than the legal standard. We have a very low political standard in this country, a legal standard that is somewhat higher, and a moral standard which is much higher; and I think we would all agree we should operate at the moral standard. Many people operate at the legal standard, and there are some who operate only at the political standard.

I am saying to you, Madam Speaker, that if you find there is a prima facie case this question can go before the committee; the whole concept that has been declared ultra vires could be dealt with, and I would think out of that would flow a new Standing Order, a new understanding among us as to how we would handle this legislation. Therefore, if you do find a prima facie case, I will make the appropriate motion.

Madam Speaker: I want to say to the hon. member that despite my high office I am not bound by judgments such as the one to which the hon. member has been referring. I am not bound to concur that something that is going on in this House is legal or illegal in the face of a judgment made by a court.

The hon. member referred to Bill C-60 and its submission to the Supreme Court of Canada. I want to remind him that it is not the Speaker who determined that a reference concerning that bill should go to the Supreme Court of Canada. Although he cites that particular case, I think he defeats his own argument since that was not the Speaker’s action but somebody else’s, and quite properly so.

As for anything done by this House that would cause damage to his reputation, I am sure he is quite able to defend his reputation to his constituents should he be attacked in the way that members normally are attacked in the course of debate in this House. I can do nothing to protect his reputation; that would be perhaps extending my responsibility quite a bit. All I can do is protect my own. I cannot find a prima facie case in the hon. member’s question of privilege.

I now call upon the hon. member for Annapolis Valley-Hants (Mr. Nowlan), who is not in the House.

[Page 8896]

Mr. Nielsen: Madam Speaker, he is unavoidably detained and hopes to be here in time to raise his question.

Madam Speaker: Then I will call on the hon. member for Cambridge (Mr. Speyer). Does the hon. member wish to withdraw his question of privilege?

Mr. Speyer: Madam Speaker, I would like to have the opportunity to make certain submissions to you with respect to this matter.

Madam Speaker: So the hon. member does not withdraw?

Mr. Speyer: No, I do not withdraw.

MR. SPEYER—ALLEGED ILLEGALITY OF CONSTITUTIONAL RESOLUTION

Mr. Chris Speyer (Cambridge): Madam Speaker, this matter arises out of a treatise in Erskine May with respect to the jurisdiction of the courts in matters of privilege. To focus in on my question I would refer Your Honour to page 178 of that treatise, which says:

In cases affecting parliamentary privilege the tracing of a boundary between the competence of the courts and the exclusive jurisdiction of either House is a difficult question of constitutional law which has provided many puzzling cases, particularly from the seventeenth to the nineteenth centuries. The history of this question affords many contradictory precedents in Parliament and divergent opinions and decisions in the courts. It is a question which has involved the courts in heated conflict with one or the other House of Parliament and has produced more then one temporarily insoluble rupture between the House of Commons and the House of Lords. In the course of this long controversy much light has been thrown on the nature of privilege and the relations between the judiciary and the legislature, although, no doubt, some unsettled questions still remain.

The question I wish to raise is that in every democratic country with a federal system, whether it be a republican system as in the United States or a parliamentary system such as we have here, there exists a system of checks and balances. In the United States the differences between the offices of the executive, the judiciary and the legislature are more clearly defined. Here there are certain rules that the governed have over the governors. Two of those are the Constitution and the courts.

It was said by Walter Bagehot in England that Parliament is supreme. Well, that is just not so in Canada. Parliament is not supreme in the sense that it can only pass legislation on matters within its competence. The history of our country is that we have a system of checks and balances, that the courts will render unconstitutional any action taken by Parliament beyond its jurisdiction.

Similarly, the provincial legislatures are not supreme; they can only act within their own competence. I submit that what has happened here, by reason of the judgment of the Supreme Court of Newfoundland, is that there is an opinion that the course of action taken by this government is null and void, is unconstitutional, and what you are asking hon. members to do is continue a debate on a proposal that has been found to be unconstitutional. I say to you that that is now beyond our jurisdiction and subject to the final decision of the Supreme Court of Canada.

To briefly trace the history of the government’s argument in this matter, as Your Honour is aware, and as the Prime Minister (Mr. Trudeau) and the Leader of the Opposition (Mr. Clark) have brought to the attention of this House and the country, the position of the federal government in the Manitoba appeal was this. There were three questions posed, four in Newfoundland. The factum submitted by the Attorney General of Canada in Manitoba stated that its position was that in view of the tentative nature of the contents of the proposed resolution, the answer would be speculative and premature. With respect to questions one and two it said that the courts did not have jurisdiction to determine this matter because it was not right. Indeed, the Prime Minister indicated in the last few days that Chief Justice Freedman acceded to that.

On the other hand, we know that the position of the federal government is that it wants to get this proposal to the United Kingdom as quickly as possible, and its reasons are very clearly stated in the infamous Kirby memorandum which deals with the possible legal challenges to unilateral action. I wish to quote this paragraph so that my point comes into focus. It reads:

As to the question of validity, it is the view of the Department of Justice that a law passed by the U.K. Parliament to patriate the Constitution, with an amendment formula and other changes, could not be successfully attacked in the courts. It seems abundantly clear that the legal power remains for the U.K. parliament to enact such a law for Canada, and it also seems clear that they will do so whenever so requested by the Parliament and Government of Canada.

The point I am making is that once the matter gets to the Parliament of the United Kingdom, it is beyond the scope of the Canadian courts to deal with it because it is replacing one British statute with another British statute. That is the intention of the government. On the other hand, certainly the courts of this land in Manitoba and Newfoundland have taken completely different positions. They tried to oust the court’s jurisdiction by another method. The method was by saying that the proposals right now are tentative in nature and that any answer would be speculative and premature.

In these circumstances, this matter is beyond the power of Parliament at this point in time, because there is an attempt to oust the jurisdiction of the court. The court has always had the power of judicial review. Judicial review has always been a safeguard in any parliamentary democracy.

In the course of the last few days a decision was rendered by the Supreme Court of Newfoundland to the effect that this proposal is ultra vires. The Government of Canada is asking us as parliamentarians to continue to debate something which is illegal. In my respectful submission, that is beyond the scope of our powers, and I ask Your Honour to so rule.

There are a number of other matters which I should like to bring to Your Honour’s attention in this regard.

[Page 8897]

Madam Speaker: The hon. member should conclude in about two minutes.

Mr. Speyer: A few days ago the Prime Minister attempted to make a distinction between Bill C-60 and the current proposals with respect to the matter of a reference. He said that Bill C-60 dealt specifically with Section 91 of the British North America Act and, therefore, it should have been referred to the court. On the other hand, he distinguished this matter because it did not refer to any matters involving the British North America Act. That is a totally nonsensical type of distinction; certainly it is a distinction not worthy of him. I bring it to Your Honour’s attention because it seems to me that in these particular circumstances a decision must be rendered by the Supreme Court on constitutional matters which are pending right now.

I return to the initial matter which I brought to Your Honour’s attention, that is, that it is unfair for any member to be participating in a debate in circumstances where we are dealing with an illegal matter with respect to a certain province of this land.

I know Madam Speaker has ruled on the question of sub judice. I respect that ruling, but may I say that the whole foundation of the notion of sub judice is that there should be no intimidation of the courts. At a time when the courts are seized with such an important matter, public debate on this matter should cease. The matter is now within the scope of the courts.

Madam Speaker: Order, please. I have ruled on that matter, and the ruling is quite clear. The matter cannot be considered sub judice for the various reason I gave in my ruling. I ask the hon. member not to discuss that.

Mr. Speyer: Madam Speaker, I certainly respect that comment, but the federal government must be in a position to refer the matter to the Supreme Court. It is no longer responding to a case which has been initiated by the provinces. It is now petitioning the court for relief. It is in a situation where it will be asking the Supreme Court for relief by overturning the verdict rendered the other day in Newfoundland.

In these circumstances, it is unfair and improper to ask us to continue debate on this important matter. This concludes my remarks.

Some hon. Members: Hear, hear!

Madam Speaker: The arguments of the hon. member have boiled down to asking the Chair to determine that there is something clearly illegal in what is going on between members of Parliament and the proposal before Parliament. The hon. member referred to one court which brought down a judgment. It is quite obvious that another court has brought down a different judgment and he would want me to be the judge of which of those two courts is right.

The hon. member referred to checks and balances. One of the checks and balances of our system is that there are several courts. If one court has determined or found a matter one way and another court has found it in another way, there is other recourse. It is not for the Chair to determine what should or should not go to the Supreme Court; it is not for the Chair to determine legal or constitutional matters. Therefore, on the basis of the argument submitted by the hon. member, I cannot find that he has a question of privilege.

Mr. Lambert: Madam Speaker, I rise on a point of order. I do not know where I am on Your Honour’s list, but I have a very serious problem involving my inability to control the departure time of a most important Air Canada flight. I was wondering, with the consent of my colleagues, if I could be heard at this time.

Some hon. Members: No.

Madam Speaker: Usually I take questions of privilege in the order in which they reach me. I would not want to be unfair to other members. Not all hon. members who have questions of privilege are in the House, so I cannot ask them whether they want to defer in your favour. I will do my best to recognize the hon. member as soon as I can.

Mr. Nowlan: Madam Speaker, I appreciate this has been a difficult time for all of us, but I apologize to the House. Things were somewhat mixed up. I was on the telephone and I was advised that Your Honour had called on me. I have no hesitation in taking my chances at the end of the line or, if it is permissible, in standing down so that my hon. friend can present his question of privilege.

Madam Speaker: I took it that there was no consent because not all members who have questions of privilege are present in the House. Therefore, I will try to accommodate the hon. member for Edmonton West (Mr. Lambert) as soon as I can. I recognize the hon. member for Annapolis Valley-Hants (Mr. Nowlan) on his question of privilege.

MR. NOWLAN—ALLEGED ILLEGALITY OF CONSTITUTIONAL RESOLUTION

Mr. Pat Nowlan (Annapolis Valley-Hants): Madam Speaker, obviously—

An hon. Member: Just keep it short.

Mr. Nowlan: In view of the ruling of the Chair, obviously one will have to keep it very short. As I said, I apologize for being on the telephone when Your Honour called my name. I understand that you have exercised your discretion in an attempt to keep questions of privilege to five minutes because of the multitude of them.

I was in the House when the Chair indicated that we were engaging in a very unusual procedure and that it was an extraordinary situation. I quite agree with those words, but as was said yesterday and on other days, that is really not the fault of hon. members or the Chair; I suppose it is the fault of the entire process.

[Page 8898]

This precedent of five minutes will come back to haunt all hon. members in the House. It is difficult to try to develop any type of legal argument on something as substantive as a rule of law.

Some hon. Members: Oh, oh!

Mr. Nowlan: I hear the interjections. Do not push, my friends, for unless there is good will one can pervert a prostitute, or the role of anybody, if one wants to; but the point of the matter is that we will not do it. The reason this matter is so unusual and extraordinary is that we all know, regardless of where we sit in the House—even the Prime Minister (Mr. Trudeau) must admit this—that there is a cloud on the status of the resolution before the House. Certainly a most conservative assessment of it would indicate that it has a taint to it. The fact of the matter, in terms of the rule of law which we are trying to explain in certain points of order and questions of privilege, is that as a member of the House for a few years I am being put in the position of being contaminated by debating and/ or eventually voting on a tainted resolution, in view of the judicial expressions of the Supreme Court of Newfoundland and also some of the judges of the Supreme Court of Manitoba.

I should like to refer to one of the eminent constitutional authorities in Canada, Robert MacGregor Dawson, in his book entitled “The Government of Canada”. At page 88 he attempts to define the rule of law, which reads as follows:

The following comment of Professor Corry on the rule of law in Great Britain is equally applicable to Canada:

“For a long time now, Parliament has been granting to officials special powers to take action not justified under the ordinary law and it has been limiting the right of the citizen to have the actions of officials scrutinized by the judicial power. Yet there has been no general removal of officials from judicial surveillance and it remains true in most cases that anyone who asserts that he has been wronged by the action of a government official—

That is the basis of my question of privilege.

—can bring that official before the courts of law to answer for his conduct. The official may justify himself by pointing to an act of Parliament which gives him a special privilege to do what he has done. But he cannot turn aside the complaint merely by asserting an exalted official status and an inscrutable executive expediency in what he has done. The state can throw away the conscript’s life but it cannot conscript him in the first instance on the plea of high policy or public expedience except as supported by a law sanctioned by Parliament. The rule of law, although qualified today by the grant of special powers to officials, remains an indispensable instrument for ensuring that government remains servant.”

That is basically the core of what I would like to argue here in the few minutes you have allowed me, Madam Speaker. Here, in effect, the exalted officials are really those in the government who have put before the House a resolution that the judicial process, the check and balance in our system, has said is wrong. Whatever pejorative you wish to use, there is a taint to it. By members being forced to debate or vote on it before that taint is cleansed, they are being contaminated.

I agree with Your Honour, there has never been a position as extraordinary as this, at least that I have heard about. I have talked to several constitutional authorities in the last couple of days. I asked them if there was ever such an experience in the British House, although you cannot apply the British case because they are not a federation. But in the history of the Parliament of Canada with respect to debating and voting on a proposition which has been ruled illegal by the superior court in one province and by a divided judgment in another, this is certainly an extraordinary circumstance. That is the reason members have presented you with so many questions of privilege, because the matter is so fundamental.

You can turn on the national news and see people in El Salvador shooting each other—there is no rule of law. In Iran they revolt and rebel because there is no rule of law. In Poland the people have a general strike in order to tell the government there is something wrong with the rule of law. The only bullets we have, Madam Speaker, are words. That is what we have been using. That is why members on this side have been exercised with respect to this fundamental issue.

Some hon. Members: Hear, hear!

Mr. Nowlan: We cannot call the Prime Minister and cabinet ministers before the bar of the House. But according to the rule of law, as set out by MacGregor Dawson and Corry, there is something wrong where members have to debate a question which two courts of the land question, one unanimously and one by divided decision.

The time allotted to me has almost run out, Madam Speaker, and I will not trespass. In conclusion, there is another element which has not been mentioned. With respect to the rule of law, what happened to Mr. Nixon, to the south of us, after he took on his oath? He did not observe the very simple oath of the presidency, which is almost as simple and as short as our oath as members, which says that we will do things according to law. Yet the very chamber which makes law is now forced to debate, and perhaps vote on, something which has been determined to be illegal.

This is the other element which has not been mentioned yet, Madam Speaker. Let us assume that this House makes a determination on the resolution. What is to prevent the government of the day, or of the next day, bringing in an amendment to the Supreme Court Act to change the composition of that court, doing what Franklin Delano Roosevelt tried to do in the “new deal” process—he wanted to stack the court?

It is fundamentally wrong for this House to be placed in the invidious position of putting, in perpetuity, fundamentals into a new Constitution when the next day the Prime Minister could change the whole composition of the court to make sure he gets the proper interpretation from the court. The other point is, we do not know what is before the court. By Parliament ruling and voting now on the resolution, we could be prejudicing other—

Mr. Orlikow: Time!

Mr. Nowlan:—matters that are in process in other jurisdictions. For those reasons, Madam Speaker, I believe you must, in an extraordinary way, go to the basic rule of law which

[Page 8899]

keeps this country intact, not just the laws of people in transitory positions of power.

Some hon. Members: Hear, hear!

Madam Speaker: The hon. member wants me to apply the rule of law; all I have to apply are the rules of this House. If the hon. member bases most of his argumentation on the fact that he will be contaminated by this whole process, then I suggest to him that it is open to him to decontaminate himself by arguing, which he does quite ably, and by amending, debating and by voting against whatever is proposed to this House. That is the proper course for him to follow. He does not have a question of privilege.

* * *

POINT OF ORDER

MR. KILGOUR—ALLEGED ILLEGALITIES IN FEDERAL LIBERAL PARTY FUND RAISING—RETRACTION OF REMARKS

Mr. David Kilgour (Edmonton-Strathcona): On a point of order, Madam Speaker. Approximately 15 minutes ago a copy of yesterday’s Hansard of the Senate was provided to me and I would therefore like to deal with a very serious matter—

Madam Speaker: Order, please. I have notice of a question of privilege with respect to this particular matter. I must know whether that question of privilege is being withdrawn.

The hon. member for Lincoln (Mr. Mackasey).

Mr. Mackasey: Madam Speaker, I would appreciate it if the hon. member would be permitted to proceed with his point of order, so that I may decide whether or not I can withdraw my question of privilege.

Madam Speaker: The hon. member for Edmonton-Strathcona.

Mr. Kilgour: Madam Speaker, I will be as brief as I can, but this is a very serious matter.

On March 31, you will recall, since you were in the chair, that I made a statement with respect to a matter which I considered to be a question of privilege. I read some correspondence into the record and Your Honour ultimately ruled that I did not have a question of privilege. I would like briefly to refer to a statement made in the Senate by the senator about whom I referred. For purposes of clarity, I wonder if I would be allowed to read that statement into the record?

Some hon. Members: Agreed.

Mr. Kilgour: The senator referred to the correspondence and said:

To clarify the record, I am in no way involved in, and I therefore have no knowledge whatever of, the financial or administrative affairs of the Liberal Party of Canada in Alberta. As an ordinary member and supporter, my only financial involvement is that of a modest contributor, which is on public record with the Chief Electoral Officer. In the past six or seven years I have at no time sought contributions for the Liberal Party in any manner whatever. In 1974 and 1975 my principal activity in connection with financing of the party related to the organization of fund-raising dinners. I have never, never engaged in the conduct, related by the honourable member for Edmonton-Strathcona.

I apologize unequivocally to the member of the other place, Senator Hastings. If the senator had only told me in reply to the letter I wrote to him asking for his comments, I can assure hon. members that I would just as soon have jumped from a bridge as make the statement I made. My information is obviously false. Without hesitation, and with the indulgence of all members, particularly the member in the other place, I unequivocally apologize to Senator Hastings for any unfortunate inferences which may have been drawn from my remarks.

Some hon. Members: Hear, hear!

Hon. Bryce Mackasey (Lincoln): Madam Speaker, I rise on the same point of order. I wish to express my satisfaction with the gesture made by the hon. member opposite today. I think it is a sign of maturity, which is a useful quality for a member of this House to have. I think it would be helpful if more people were prepared to do what the hon. member has just done, which is to retract without hesitation his allegations, which were extremely serious.

Madam Speaker, I just want to read the one paragraph which the hon. member omitted to read from the letter. Senator Hastings said in that letter:

The allegations contained in his letters of March 12 and 26, and his slurring remarks last night in the other place, are totally false and devoid of substance. As a member of the Parliament of Canada, I am conscious of the duties and responsibilities relating to the public office I hold. I can only hope that, as a member of the same Parliament, the honourable member for Edmonton-Strathcona is aware of his duties and responsibilities.

I think the hon. member is aware of his duties and responsibilities, as evidenced by his retraction. I have no intention of pursuing the matter any further by way of point of privilege.

* * *

PRIVILEGE

MR. HNATYSHYN—ALLEGED INTRUSION ON RIGHTS OF MEMBERS

Hon. Ray Hnatyshyn (Saskatoon West): Madam Speaker, I now, at long last, appreciate the opportunity of raising a new and novel question of privilege which, I am glad to report, is unique in that it bears absolutely no relationship to the previous seven or eight questions of privilege. Indeed, it is of very great importance to every hon. member of this Canadian Parliament. I am sure you will find there is a prima facie case. I have prepared an appropriate motion to accompany this particular matter when you so find.

I would like to introduce my question of privilege by bringing to the record the statement which I made to you, Madam

[Page 8900]

Speaker, pursuant to Standing Orders, by way of a letter dated April 1, 1981. It reads:

I hereby give you notice of my intention to raise today a question of privilege relating to my privilege as a Member of Parliament and the privileges of all Members of Parliament by the stated and actual interference and intrusion of the Prime Minister as head of the executive between the will of the Parliament of Canada represented by the Joint Resolution on the Constitution now before the House and the parliament of the United Kingdom and Northern Ireland.

Madam Speaker, I simply want to bring your attention to the fact that this House is debating a resolution which is of very great consequence and importance to the future of this country. During the course of arduous debate, we have witnessed very strongly held views and positions on matters which hon. members on both sides of the House have identified with, and to which the people of Canada are now giving serious consideration. The matter which is being debated is on the minds of all parliamentarians.

During the course of debate issues raised have caused many questions of privilege to come forward. It is not as if we were dealing with any other item of legislation; but rather, we are dealing with matters pertaining to the very foundation of our country. We are in unusual times, as has been stated on many prior occasions. We must look very carefully at this matter to determine whether we are proceeding in a proper and appropriate manner.

What has caused me concern with respect to the present situation is that we are debating a resolution. I want to look at the very nature of the motion before us in the name of the Minister of Justice (Mr. Chrétien). This resolution will form part of a joint resolution of the House and the Senate and I imagine it will in due course receive—in whatever form it is presented, if it is determined to be constitutional or legal by the courts—the assent of the representative of Her Majesty in Canada and thereby constitute an address to Her Majesty the Queen.

I therefore want to refer to the actual text of the resolution which expresses the nature of that particular address. The address has taken the words of the resolution itself:

To the Queen’s Most Excellent Majesty:
Most Gracious Sovereign:
We, Your Majesty’s loyal subjects, the—

Then there is a blank space to insert, of course, the “Senate”.

—House of Commons of Canada in Parliament assembled, respectfully approach Your Majesty, requesting that you may graciously be pleased to cause to be laid before the parliament of the United Kingdom a measure containing the recitals and clauses hereinafter set forth:

Attached to that is the proposed legislation which will be presented in first reading stage, as the Minister of the Environment (Mr. Roberts) stated on “Canada A.M.”, plus the proposed Canada Act, including the various elements respecting the constitutional provisions, amendments and the charter of rights.

This particular address is from Parliament to Her Majesty the Queen or, to put it another way, from one Parliament to another Parliament. When the matter is finally resolved, it will reflect the will of the Parliament of Canada; it will not reflect the will of the Crown per se. It will not reflect the will of the cabinet of this country per se. It will not reflect the will of the Prime Minister (Mr. Trudeau) or any member of cabinet holding a position in the executive of our country. It is an address which will be sent from the Parliament of Canada to the Parliament of the United Kingdom and Northern Ireland.

I want to begin with that very basic premise, because it is important to understand the nature of the legislation we are dealing with and its important consequences for the operation of Parliament, of which the House of Commons is a part. This address is not a request for action by the Prime Minister or the executive. It is a request which has been sent directly from the House of Commons and the Senate; from the Parliament of Canada, directly to Her Majesty the Queen.

Having stated that very basic premise, I now want to refer to some of the actions which the Prime Minister and the members of the executive of this country have taken, and indeed some of the activities and statements made on the floor of the House of Commons.

I refer to Hansard of March 31, 1981, to give examples of the intended and the actual actions of the Prime Minister of this country. During the course of the question period, in response to questions as to how this address to the Parliament of the United Kingdom would be handled, the Prime Minister said, as reported at page 8786:

If the hon. members opposite do not want to improve the resolution another way, my offer will still stand; that we get a resolution to the Supreme Court of Canada in return for which the government would certainly undertake—

The following words are important:

—not to press the United Kingdom to pass the resolution until it has seen the judgment of the Supreme Court of Canada—

Further on, on that same page, in referring to this resolution he said:

—then we will undertake not to press its passage in the United Kingdom until after the Supreme Court of Canada has judged.

The Prime Minister again returned to this matter on that same page:

I repeat, if the Supreme Court should judge against it, we will of course not press the United Kingdom to pass it in all stages… but will merely ask the United Kingdom to continue its passage.

In response to a question from my colleague the hon. member for Provencher (Mr. Epp), in referring to the intention of the government vis-à-vis this resolution to be sent to the United Kingdom Parliament, the Minister of Justice said, as reported at page 8787:

—we will wait for the decision of the Supreme Court before deciding to press the matter in England—

The point I suppose I wanted to—

Madam Speaker: Order, please. I do have to interrupt the hon. member, in all reasonableness. I understand from his argumentation that he does not particularly appreciate the process through which this resolution is being carried.

[Page 8901]

[Translation]

He has the right to do so.

[English]

That is his own prerogative. But he must speak about privilege. How is his privilege affected by the fact that one process has been chosen rather than another? Who has the liberty of choosing the process? Certainly the Chair cannot decide that.

[Translation]

Mr. Olivier: I rise on a point of order, Madam Speaker. Once again, I am sorry. In view of what you mentioned this afternoon, I believe that the hon. member opposite has not been able to show in five minutes that he had anything new to say about the question of privilege. I believe that the more the hon. member opposite goes on, the more what he says is similar to what others have said on other questions of privilege. I therefore believe, Madam Speaker, that you would be justified in cutting off the hon. member and recognizing someone else.

Madam Speaker: According to the decision of which I have already informed the House, the question of privilege raised by the hon. member for Saskatoon West (Mr. Hnatyshyn) is somewhat different from the others which were worded in nearly the same terms and to which I applied a five minute limit. For the information of the House, I want to point out that the question raised by the hon. member for Saskatoon West is somewhat different. I shall now read it, but I find it is rather vague. I could not understand exactly to what the hon. member was referring. Since he started speaking, I have not been able to understand either how his privileges are affected, but I shall read the question to the House.

[English]

The hon. member states that the privileges of all hon. members are affected by the, and I quote:

—actual interference and intrusion of the Prime Minister as head of the Executive between the will of the Parliament of Canada represented by the Joint Resolution on the Constitution now before the House and the parliament of the United Kingdom and Northern Ireland.

[Translation]

That is the wording of the question of privilege raised by the hon member for Saskatoon West. It is different from that of the seven or eight other questions of privilege I received on this subject. That is why I have not applied the five-minute rule, however, I must warn him that I shall not give him too much because I still have other questions of privilege to hear.

[English]

Mr. Hnatyshyn: I appreciate that admonition, Madam Speaker.

As I say, this is a new and quite different question of from the ones which have been raised before. I want to get through it as quickly as possible, but I have citations to quote to substantiate the point I want to make. Perhaps the hon. member for Longueuil (Mr. Olivier) could get his apartment mate, the Minister of Energy, Mines and Resources (Mr. Lalonde), to explain it to him after hours.

Madam Speaker: I see that the hon. member is going to quote Erskine May to me.

Mr. Hnatyshyn: Yes.

Madam Speaker: I want to see where the hon. member’s privilege is breached. I know Erskine May nearly by heart on this particular point. Would the hon. member please resume his seat.

Mr. Hnatyshyn: I am sorry.

Madam Speaker: There is a limit. It is not a matter of my patience; I will have patience until the end. I know I am here till the end of the session, so whether it is one hon. member speaking or another, it does not affect me personally. But there has to be some kind of credibility to the office of the Speaker and the Chair, and the Chair should not be subjected to listening to arguments which do not at all relate to breaches of privilege. I know Erskine May practically by heart on this particular matter of privilege. The hon. member has spoken since 4.40. I would like him to tell me in what way his privilege is breached. That is what I need to know.

Mr. Hnatyshyn: Madam Speaker, Erskine May deals specifically with the question of privilege I am going to raise. I indicated to Your Honour in my letter that when the House does pass on this constitutional resolution addressed to Her Majesty the Queen and the parliament of the United Kingdom, there is absolutely no provision for—in fact there is adequate and some detailed prohibition against—interference with the parliamentary process. It does not lie upon the Prime Minister or any member of the executive to hold the address in his or her back pocket or to determine whether this resolution shall pass at any particular time. It is a matter for the two parliaments to determine exactly when that matter will appear on the legislative order paper of the House of Commons in the United Kingdom. Any interference—

[Translation]

Mr. Olivier: On a point of order, Madam Speaker. I fully agree that hon. members are entitled to raise questions of privilege. The member opposite is launching a debate rather than raising a question of privilege. In addition, he is holding your authority up to ridicule by failing to respect the decision you have made this afternoon. That member, Madam Speaker, is challenging your authority in the House through his decision to initiate a debate in spite of the warnings you gave him.

[English]

Madam Speaker: I have to take into consideration that particular point of order. The hon. member is discussing something which has not yet happened. It is hypothetical, and

[Page 8902]

I cannot decide a question of privilege based on a hypothetical situation. The hon. member’s privilege must have been breached—right now—and I want him to tell me how. I think the hon. member is pointing to something which is becoming increasingly clear. The Chair cannot be put in a position indefinitely to hear questions of privilege which are not really questions of privilege. The credibility of the Chair and hon. members is involved, and I will preserve that.

Some hon. Members: Hear, hear!

Mr. Hnatyshyn: Madam Speaker, I take this matter very seriously; as you do, I appreciate. The point is that there is a very serious instrusion on and interference with the rights of every member of this House of Commons. There is no speculation; there is no hypothesis; I refer to the words from the mouth of the Prime Minister who sits across the aisle from me. By his own admission he intends to hold the address in his hip pocket. That is not hypothetical. He has said that is what he will do. He will step between the two parliaments. He has indicated his intention. He has gone to the United Kingdom on a number of occasions—

Madam Speaker: Order. The point I made to the hon. member is the following: the Right Hon. Prime Minister does not have an address at this point in time in his hip pocket. That has to be quite clear and it cannot be debated as the basis for a question of privilege. The Prime Minister has no address and no resolution. He has nothing.

Mr. Blackburn: Recognize someone else.

Mr. Hnatyshyn: Madam Speaker, I want to refer, if I might, to Erskine May at page 115 with respect to the whole question of the position of the House of Commons on any resolution or motion passed by the House of Commons. I will read the last sentence on page 115. I am referring to a request of the House through the Speaker with respect to decisions made by the House in which the Speaker is, in effect, deferential to Her Majesty. The sentence reads as follows:

But now the request is little more than formal courtesy; as the proceedings of the House are guarded against any interference, on the part of the Crown, not authorized by the laws and constitution of the country; and as by the law and custom of Parliament the Queen cannot take notice of anything said or done in the House, but by the report of the House itself.

I am not by any means saying that our privileges are impinged upon if we pass this resolution. The Prime Minister has stood in this House. I must accept his word as to what he intends to do. I read the resolution. The Prime Minister tells the House of Commons very seriously what his intention is; he is going to delay.

Mr. Fleming: That is hypothetical.

Mr. Hnatyshyn: He has referred in this House to the fact that he is going to do that.

Some hon. Members: Oh, oh!

Mr. Hnatyshyn: Madam Speaker, may I have order in this House? There is a systematic attempt on the part of the government to prevent us from bringing matters before this House. The Prime Minister has not hypothecated. He has said what he intends to do, that is not hypothecation.

The point I make is that there is adequate authority for this proposition. The Prime Minister is infringing on our rights. He is intimidating members of this House of Commons by his actions. He has no authority to threaten us with holding back a resolution. He tells us, on the one hand, that we are to pass this particular resolution, and then he says that once the resolution of this Parliament has been passed, he will interfere. I say that that threat is an intimidation.

Your Honour will be aware of the fact, having read the proposed resolution, that there is no provision by which there can be any delay. There is no provision authorizing or vesting in the Prime Minister to step between the two parliaments and to tell the United Kingdom parliament to delay passage. Yet if I may be permitted to say so, that threat is now on the floor of the House of Commons.

I would like to call it five o’clock, Madam Speaker.

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