Parliamentary Privilege / Rights of Members

November 4, 1999

Debates, pp. 1089-91

On October 14, 1999, Val Meredith (South Surrey—White Rock­— Langley) raised a question of privilege concerning the conduct of the Canadian Security Intelligence Service (CSIS) with regard to a lawsuit involving herself. Ms. Meredith stated that CSIS tried deliberately to intimidate her by taking an active role in the lawsuit launched against her, collecting and disclosing information to the other party involved in the lawsuit. In doing so, Ms. Meredith suggested that CSIS had misused its powers and this conduct constituted, in her opinion, a contempt of the House. Ms. Meredith argued that the actions of CSIS constituted an effort to intimidate her and prevent her from speaking freely in the House of Commons and from performing her role as an opposition critic. She also felt that the evidence she provided was sufficient to find that there was a prima facie case of contempt of the House against CSIS. After the interventions of other members, the Speaker reserved his decision.^[1]

On October 21, 1999, the Speaker returned to the question of privilege raised by Ms. Meredith, hearing interventions from other members.^[2] Again on October 25, 1999, the Speaker returned to the matter with Ms. Meredith responding to comments made by the Don Boudria (Leader of the Government in the House of Commons) on October 21, 1999. The Speaker indicated that he would deliberate on all the facts that had been put before him and that he would come back to the House.^[3]

On November 4, 1999, the Speaker delivered his ruling. Noting that the actions of CSIS on behalf of the plaintiff in the lawsuit brought against Ms. Meredith were not matters for the Speaker to judge, the Speaker suggested Ms. Meredith seek satisfaction through the complaints mechanism in the legislation governing CSIS. After reviewing Ms. Meredith’s arguments, the Speaker could find nothing which would indicate that CSIS tried to prevent her from exercising her right to free speech in the House. Therefore, he had not been able to conclude that the actions of CSIS, as reported by Ms. Meredith, constituted a prima facie case of privilege.

Decision of the Chair

The Speaker: Before we proceed to orders of the day, I will now deal with a question of privilege from the honourable member for South Surrey—White Rock-Langley that was brought before the House on October 14, 1999, with further interventions on October 21 and 25, 1999. The question of privilege concerned the activities and conduct of the Canadian Security Intelligence Service during the course of a lawsuit against the member.

I thank all members who participated in this debate for their helpful contributions in this matter. In particular, I would like to draw attention to the presentations made by the honourable government House leader, the opposition House leader, the honourable member for Fraser Valley and the honourable member for Kootenay—Columbia. The many thorough submissions have helped the Chair in making this important and far-reaching decision. The Chair is also grateful for the accompanying material submitted by the honourable member for South Surrey—White Rock—Langley.

Perhaps it might be useful at this time to acquaint everyone with the events that took place, which led to the raising of this question of privilege. The honourable member benefited from the parliamentary privileges accorded to all members when she put certain questions in the House during Question Period on alleged spy activities by certain employees of CSIS. Subsequent to this, the honourable member released related material outside the House of Commons that inadvertently contained the actual name of a former employee of CSIS. I am sure all honourable members know that immunity accorded to members in the House does not exist when statements are made outside the House. A civil lawsuit ensued and the case was subsequently settled out of court.

The honourable member for South Surrey—White Rock—Langley in her presentation covered a great deal of ground in relation to this matter. For the benefit of the entire House, I would like to quickly outline the grievances brought forth by the honourable member.

First, she indicated that CSIS improperly collected information and then disclosed that information to a third party in clear violation of CSIS policy.

Second, she affirmed that CSIS took an active role in the preparation of a lawsuit against an opposition member of Parliament, including having its legal counsel provide the plaintiff and the plaintiff’s lawyer with advice.

Third, she contended that CSIS had misused its authority under the guise of the protection of national security and deliberately misled the court to frustrate her attempts to resolve the lawsuit.

The honourable member argued that these actions on the part of CSIS constituted a deliberate effort by CSIS to intimidate her and prevent her from speaking freely in the House of Commons and from performing her role as official opposition critic. She felt that the evidence provided was sufficient to find that there was a prima facie case of contempt of the House against the Canadian Security Intelligence Service. Erskine May suggests on page 143 of the 20th edition that:

It would be vain to attempt an enumeration of every act which might be construed into a contempt, the power to punish for contempt being in its nature discretionary…It may be stated generally that 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.

The honourable member for South Surrey—White Rock—Langley stated that she would “provide prima facie evidence to the Chair that demonstrates how the conduct and activities of CSIS regarding this case form what she believes to be a new and disturbing method of intimidation of a member of Parliament”.

Consequently what the Chair must decide, on the basis of the facts presented, is whether she has provided the necessary evidence to substantiate a prima facie claim of privilege.

Let me begin by addressing the three points that relate to the actions of the Canadian Security Intelligence Service. The member stated that the plaintiff was in possession of documents improperly collected and supplied by CSIS. The material included press clippings, press releases, radio transcripts and the like. She also indicated that certain items of this information were not asked for by the plaintiff but rather were given directly without any solicitation by CSIS to the plaintiff. Before addressing the issue of the improper collection of these documents, I must first underline that the material alluded to was in the public domain and readily available to any member or private citizen.

The issue of whether the collection and disclosure of these documents was in contravention of the CSIS Act or internal policies of the agency is not for the Speaker to judge. The member has also stated that CSIS purposely prolonged legal proceedings by providing misinformation in order to prevent the member from having the case heard in court and also deny her the right to raise concerns about the case for three and a half years. Proven or unproven, such misconduct by CSIS is not for the Speaker or the House to decide. It would be a matter for the judicial system to review or for the Security Intelligence Review Committee to investigate.

If the member feels that specific sections of the CSIS Act have been breached by CSIS employees, then these matters can be dealt with through the complaints procedures established by Parliament in the Canadian Security Intelligence Act. As I understand it, the Security Intelligence Review Committee, or SIRC, was established in 1984 as an independent body to review the activities of the Canadian Security Intelligence Service. SIRC’s second role is to investigate complaints from the public about any CSIS action. Any person who has knowledge of inappropriate activities by CSIS can complain to SIRC.

In fact, the Security Intelligence Review Committee has the power to initiate such an investigation without necessarily having received a formal complaint. Given the fact that three of the five members of the committee are former parliamentarians, at the federal and provincial level, I have no doubt that they would take this matter up with special interest

While the Security Intelligence Review Committee can investigate and report on the appropriateness of activities within and by CSIS, the question of whether such actions constituted an attempt to intimidate a member of this House, and are thus a contempt of the House, fall within the sole authority of the Speaker and are questions that I take very seriously.

It appears that what we have before us are allegations by an honourable member to the effect that her parliamentary privileges have been breached due to deliberate attempts by an outside agency to impede the member from performing her parliamentary duties. Precisely speaking, the honourable member protests that one of her basic privileges, “the freedom of speech”, has been breached by a deliberate effort of intimidation accomplished by CSIS through support to a court action by a plaintiff against the member.

Any attempt to intimidate a member with a view to influencing his or her parliamentary conduct is a breach of privilege. Privilege is a fundamental principle of parliamentary law. In the 22nd edition of May it is stated at page 65:

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.

The position put forward by the honourable member for South Surrey—White Rock—Langley is to the effect that CSIS made an effort to intimidate her, thereby limiting her freedom of speech in the House, resulting in the honourable member being unable to perform her role as official opposition critic. This, my colleagues, is a very serious charge.

There can be no question as to the relevance and appropriateness of the principle invoked by the honourable member.

Indeed, as all honourable members know, the privilege of freedom of speech is so fundamental that this House could not discharge its constitutional functions without it. Beauchesne 6th edition, at page 22, states:

The privilege of freedom of speech is both the least questioned and the most fundamental right of the member of Parliament on the floor of the House and in committee.

There are, however, limits to parliamentary privilege. Speaker Lamoureux in his April 29, 1971, ruling indicated that privilege sets honourable members apart from other citizens by giving them rights that the general public does not have.^[4] In his ruling he stated:

In my view, 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 or her duties in the House as a member of the House of Commons.

Speaker Jerome, when speaking on the limits of parliamentary privilege in his ruling of February 20, 1975, went in the same direction as Speaker Lamoureux.^[5] He added:

The consequences of extending that definition of privilege to innumerable areas outside this chamber into which the work of an MP might carry him or her, and particularly to the great number of grievances he might or she might encounter in the course of that work, would run contrary to the basic concept of privilege.

However, if a member is subjected to threats and intimidation, he or she is clearly hindered in the fulfilment of the parliamentary duties for which he or she was elected. As Joseph Maingot writes, in his book Parliamentary Privilege in Canada, on page 235:

[—] not every action by an outside body that may influence the conduct of a member of Parliament as such could now be regarded as a breach of privilege, even if it were calculated and intended to bring pressure on the member to take or to refrain from taking a particular course. But any attempt by improper means to influence or obstruct a member in his parliamentary work may constitute contempt. What constitutes an improper means of interfering with members’ parliamentary work is always a question depending on the facts of each case. Finally, there must be some connection between the material alleged to contain the interference and the parliamentary proceeding.

The question that must be answered is what constitutes proceedings in Parliament. Speaker Fraser, in his ruling of July 18, 1988,^[6] defined proceedings of Parliament in the following manner:

This phrase has never been exactly and completely defined by statute, by the courts of law, or by the House itself. In its narrow sense the expression is used to denote the formal transaction of business in the House or in committee. Traditionally it covers both the asking of a question and the giving of a written notice of such question, and also includes everything said or done by a member in the exercise of his or her functions as a member of the House, either in the House or in any committee of the House in the transaction of parliamentary business.

I may have been somewhat lengthy in my remarks, my colleagues, but I thought that this is a matter of such seriousness that it was incumbent upon me to clearly explain what constitutes privilege, contempt and proceedings in Parliament. It is my duty to determine whether the actions taken by CSIS can be seen to have had as their purpose to influence or obstruct the honourable member for South Surrey—White Rock—Langley in her parliamentary work and within the context of a proceeding in Parliament.

Bluntly stated, the question is: Was the support by CSIS of a former employee of CSIS intended to “chill” the honourable member for South Surrey—White Rock—Langley from participating in Question Period, debate in the House or committees of the House? Or, the question can be restated more generally as follows: Did CSIS provide inappropriate support to a former employee of CSIS who was suing the honourable member for South Surrey—White Rock—Langley because she is a member of Parliament and was a critic of the agency in a parliamentary proceeding? If the answer to either of these questions is yes, then I must rule, in keeping with our practice, that a prima facie case of contempt has occurred.

I have reviewed the honourable member’s presentation. I have re­reviewed it and gone through it on at least four occasions—I want to underline that—and found that nothing she said would lead to an affirmative answer to these two questions. I have also carefully assessed the submission by the honourable member for South Surrey—White Rock—Langley, including all of the complementary material which she made available, and I have not been able to conclude that the actions of CSIS, as reported by the honourable member, constitute a prima facie case of privilege.

The actions by CSIS may indeed have prolonged the civil process, but the honourable member has not provided the Chair with sufficient grounds to warrant further action by the House at this time. Should new facts emerge or if the honourable member returns to the House with other substantive evidence, I would of course listen to her again, because, if proven, her allegation would be very disturbing.

I thank the honourable member for bringing the matter to my attention and all honourable members for their patience while I looked into the details.

P0117-e

36-2

1999-11-04