Parliamentary Privilege / Rights of Members

October 9, 1997

Debates, pp. 687-9

After Oral Questions on September 30, 1997, Myron Thompson (Wild Rose) raised a question of privilege claiming that an official of the Department of Indian Affairs and Northern Development had deliberately misled him and subsequently denied him information which, Mr. Thompson held, was a contempt of the House. According to Mr. Thompson, on September 16 he was invited to a meeting with the departmental official to receive a progress report on the Stony Reserve, a reserve located in his riding. He was accompanied by members of the reserve. During the meeting the official asked the member to leave the meeting, claiming that Mr. Thompson was not entitled to certain information that he was about to disclose to the reserve members. Mr. Thompson argued that as a member of Parliament and because he had written permission from members of the reserve he was entitled to the information. He stated in the House that he intended to use the information to formulate questions to be put to Jane Stewart (Minister of Indian Affairs and Northern Development). After interventions by other members, the Speaker decided to reserve his decision until the Minister of Indian Affairs and Northern Development was in the House and could comment on Mr. Thompson’s allegations.^[1]

On October 2, 1997, the minister made a statement to provide additional information on the question of privilege. The minister stated that her officials were guided in their actions by restrictions imposed by the Access to Information Act and the Privacy Act concerning disclosure of information. This was the reason that the official had requested that Mr. Thompson leave the meeting. The Speaker also heard further comments from Mr. Thompson and other members, after which he indicated that he would look at all aspects of the matter and come back to the House with a decision.^[2]

At the beginning of the sitting on October 9, 1997, the Speaker gave his ruling. The Speaker came to the conclusion that this was not a case of a contempt of Parliament, noting that when members claim that a certain action constitutes a breach of privilege, they must specify which of their privileges is affected. While obstructing a member in the discharge of his or her responsibilities to the House or in their participation in its proceedings would be considered to be a contempt of the House, at the time of the alleged offence, the member would have to actually be participating in a proceeding of Parliament. The activities of members in their constituencies did not appear to fall within the definition of a “proceeding in Parliament”. The Speaker concluded that activities related to the seeking of information in order to prepare a question did not fall within the strict definition of what constitutes a “proceeding in Parliament” and, therefore, they were not protected by privilege. As to the matter of the application of the Access to Information Act and the Privacy Act, that was a matter for the courts, not the Speaker. The Speaker also stated that there was clearly a dispute about the facts of the case and it did not fall to the Speaker to settle that dispute. He concluded his remarks by stating that the case constituted a grievance but since the situation has not actually precluded Mr. Thompson from participating in a parliamentary proceeding, the Chair could not find that a case of a contempt of Parliament had occurred.

Decision of the Chair

The Speaker: I am now ready to rule on the question of privilege raised by the honourable member for Wild Rose on September 30, 1997, concerning information allegedly denied to him by an official of the Department of Indian Affairs and Northern Development.

First of all, I want to thank the honourable member for Langley—Abbotsford, the House leader of the official opposition, as well as the honourable member for Fraser Valley for their contribution to this debate.

In his submission, the honourable member for Wild Rose claimed that an official of the Department of Indian Affairs and Northern Development had deliberately misled him and subsequently denied him information. This, he argued, constituted a contempt of Parliament

According to the honourable member, on September 16 he was invited to a meeting with the departmental official to receive a progress report on the Stony Reserve, a reserve located in his riding. Citizens of the Stony Reserve apparently accompanied him. At some point during the meeting he was made to leave by the official because it seemed that he was not entitled to certain information that was about to be disclosed.

When he raised the question of privilege in the House, the honourable member stated that he had requested this meeting to obtain information which he contended was directly related to the preparation of a question which he wanted to ask the Minister of Indian Affairs and Northern Development. He added that he had given notice to the minister of his intention to ask such a question.

On October 2, the Minister of Indian Affairs and Northern Development made a statement to provide additional information on this question of privilege. This was followed by further comments from the honourable member for Wild Rose, the Leader of the Official Opposition, the honourable member for Fraser Valley and the honourable member for Langley—Abbotsford as well as the honourable member for Wentworth—Burlington.

The Chair always takes any matter concerning the privileges of members, particularly any matter that may constitute a contempt of Parliament, very seriously.

As Speaker Fraser noted in a ruling given on October 10, 1989, found at page 4457 of the Debates:

—the Speaker does not rule on whether a breach of privilege or a contempt has in fact been committed. The Speaker only determines whether an application based on a claim of contempt or breach of privilege is, on first impression, of sufficient importance to set aside the regular business of the House and go forward for a decision by the House.

Before proceeding, the Chair feels that it might be helpful to explain to members, and especially to new members of this House, the difference between a contempt of the House and a breach of privilege.

Contempts are offences against the authority or dignity of Parliament. These offences cannot be enumerated or categorized. As stated in Erskine May, 21st edition, at page 115:

Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results may be treated as a contempt even though there is no precedent of the offence.

Privilege, on the other hand, can be divided into two finite categories: the rights extended to members individually, and those extended to the House as a collectivity. The rights and immunities that are awarded to members individually are generally categorized under five headings. They are freedom of speech, freedom from arrest and civil actions, exemption from jury duty, exemption from attendance as a witness and freedom from molestation and intimidation.

As for the rights and powers of the House as a collectivity they may be classified as follows: the regulation of its own internal affairs, the authority to maintain the attendance and service of its members, the power to expel members guilty of disgraceful conduct, the right to institute inquiries and to call witnesses and demand papers, the right to administer oaths to witnesses, and the authority to deal with breaches of privilege or contempt.

When claiming that a certain action constitutes a breach of privilege, members must specify which of these privileges is affected.

The honourable member for Wild Rose argued that the actions taken by the official from the Department of Indian Affairs and Northern Development constitute a contempt of Parliament.

Technically, obstructing members in the discharge of their responsibilities to the House or in their participation in its proceedings is considered to be a contempt of the House. As Joseph Maingot writes in his book Parliamentary Privilege in Canada at page 73:

—the member must be exercising his functions as a member in a committee or in the House. in the transaction of parliamentary business. Whatever he says or does in those circumstances is said or done during a “proceeding in Parliament”; in other words, while the member is functioning as a member, not in his constituency, but while actually participating in parliamentary business and saying or doing something necessarily incidental to parliamentary business.

Thus, in order for a member to claim that his privileges have been breached or that a contempt has occurred, he or she must have been functioning as a member at the time of the alleged offence, that is, actually participating in a proceeding of Parliament. The activities of members in their constituencies do not appear to fall within the definition of a “proceeding in Parliament”.

In the 21st edition of Erskine May it is stated at page 125:

Correspondence with constituents or official bodies, for example, and the provision of information sought by members on matters of public concern will very often, depending on the circumstances of the case, fall outside the scope of “proceedings in Parliament” against which a claim of breach of privilege will be measured.

In instances where members have claimed that they have been obstructed or harassed, not directly in their roles as elected representatives but while being involved in matters of a political or constituency related nature, Speakers have consistently ruled that this does not constitute a breach of privilege.

On April 29, 1971, Speaker Lamoureux, in a ruling on a question of privilege concerning rights of members to visit penitentiaries at page 5338 of the Debates stated that:

Parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a member to discharge his duties in the House as a member of the House of Commons.

In the same vein I refer members to page 3580 of the Debates of February 26, 1975, where Speaker Jerome clearly stated:

—the classic definition of a question of privilege does not fit circumstances in which a member in his duties outside this House finds that his scope is being restricted or attempts are being made to restrict his scope of intervention and effective work on behalf of not only his own constituents but his point of view as a member of the federal Parliament.

On the matter of a member’s constituency duties, Speaker Sauvé pointed out in a decision delivered on July 15, 1980, at pages 2914 and 2915 of the Debates:

—whatever duty a member has to his constituents, before a valid question of privilege arises in respect to any alleged interference, such interference must relate to the member’s parliamentary duties.

After careful consideration of the precedents, I conclude that activities related to the seeking of information in order to prepare a question do not fall within the strict definition of what constitutes a “proceeding in Parliament” and, therefore, they are not protected by privilege.

Let me now turn to another aspect of the matter before me. In the statement she gave to the House on October 2, 1997, the Minister of Indian Affairs and Northern Development made reference to the Access to Information Act as well as the Privacy Act. Whether the application of these two acts should be clarified is a matter for the courts, not the Speaker. I concur totally with Speaker Fraser when, in a ruling on March 17, 1987, at page 4262 of the Debates, he emphasized that “The extent of the application of any law is a question that the courts should be asked to decide and not the Speaker”.

In the same decision Speaker Fraser further stated: “The Speaker’s duty is confined to interpreting the procedures and practices of the House of Commons”. May I draw members’ attention to citation 168(5) of Beauchesne 6th edition, at page 49, which states “The Speaker will not give a decision upon a constitutional question nor decide a question of law”.

Furthermore, I wish to remind the House that it is not up to the Chair to comment on the behaviour of public servants in the performance of their duties.

In order to fulfil their parliamentary duties, members should of course have access to the information they require. On the other hand, they should be aware of the constraints under which public servants must operate when providing information.

The Chair is mindful of the multiple responsibilities, duties and constituency related activities of all members and of the importance they play in the work of every member of Parliament. However, my role as your Speaker is to consider only those matters that affect the parliamentary work of members.

The honourable member for Wild Rose has explained that this matter touches upon his preparation for questions to the minister. I accept the honourable member’s statement just as I accept the minister’s explanation of the events.

There is clearly a dispute about the facts of the case and it does not fall to the Speaker to settle that dispute.

I have concluded that this case constitutes a grievance on the part of the honourable member, but since this situation has not actually precluded the honourable member from participating in a parliamentary proceeding the Chair cannot find that a case of a contempt of Parliament has occurred.

I thank the honourable member for Wild Rose for his intervention and for bringing this matter to our attention.

P0114-e

36-1

1997-10-09