Rules of Debate / Miscellaneous

November 7, 1989

Debates, pp. 5654-6

During Question Period on November 6, 1989, the Hon. Robert Kaplan (York Centre) had begun questioning the Hon. Pierre Blais (Solicitor General of Canada and Minister of State (Agriculture)) on the testimony given by Staff Sergeant Richard Jordan of the Royal Canadian Mounted Police (RCMP) in the course of a criminal trial concerning the leak of certain Budget documents in February 1989. The Speaker had interrupted Mr. Kaplan on the grounds that the question was contrary to the Sub Judice convention.^[1]

Mr. Kaplan rose on a question of privilege following Question Period on this matter. He argued that the Sub Judice convention was not directly relevant here. He suggested that should the Speaker agree, the Solicitor General be allowed to answer the question regarding the testimony. Mr. Kaplan maintained that while the question he wanted to ask did pertain to a criminal trial, it had nothing to do with the guilt or innocence of the person or persons charged. He stated that the question related to the process by which the RCMP laid the charges, which had little to do with the criminal case itself. He submitted that even if the Sub Judice convention did apply, it should be waived. He remarked that the Sub Judice rule is based on a voluntary restraint and that the importance of the issue warranted the suspension of the rule. Other Members supported the arguments presented by Mr. Kaplan.

The Hon. Doug Lewis (Minister of Justice and Attorney General of Canada and Government House Leader) argued that the Sub Judice convention is consistently applied in criminal cases. He also suggested that there was no way of knowing whether anything said either by the person asking the question or by the person responding might affect the outcome of the trial. He was supported in his arguments by another Member.

The Speaker reserved on the matter as he wanted an opportunity to examine the precedents as well as the relevant court proceedings. He asked Mr. Kaplan to obtain a copy of the court transcript.^[2]

The next day, November 7, 1989, the Hon. Edward Broadbent (Oshawa) raised a separate yet related question of privilege which also involved the testimony of Staff Sergeant Jordan. On this occasion, however, Mr. Broadbent suggested that since this testimony was in conflict with the testimony given by the RCMP Commissioner Norman Inkster before the Standing Committee on Justice and the Solicitor General, there had been either a contempt of court or a contempt of Parliament. He argued that, at least, there existed the "possibility" of a contempt of Parliament. Other Members spoke in support of Mr. Broadbent 's points.

Mr. Albert Cooper (Parliamentary Secretary to the Government House Leader) intervened to state that, like the previous question raised by Mr. Kaplan, this issue was subject to the Sub Judice convention. Thus, it should not be further discussed until the Speaker had ruled on Mr. Kaplan's question.

The Speaker also reserved on this matter.^[3]

Later on November 7, 1989, the Speaker rose to present his ruling on both Mr. Kaplan's and Mr. Broadbent's questions of privilege just as Question Period was about to begin. His ruling is reproduced in extenso below.

Decision of the Chair

Mr. Speaker: The Chair would ask the indulgence of the House to render a decision on the matter raised yesterday by the honourable Member for York Centre relating to the Sub Judice convention. I realize that this is an unusual time of the day but my decision will, in any case, impact on Question Period and I believe I should inform the House before the Question Period begins.

I should also advise that whatever time is taken to give this ruling will be extended and the Question Period will be the usual 45 minutes in length.

Yesterday the honourable Member for York Centre rose to ask a question which was based on statements made by a staff sergeant of the Royal Canadian Mounted Police in a court of criminal law relating to the budget leak of April, 1989. I said at the time that I appreciated the courtesy of the honourable Member for York Centre in advising the Chair that he was going to rise on the question, and as honourable Members will remember, I decided that it was not appropriate to proceed at that time. I expressed reservations because the matter was before a court of justice and the honourable Member and others agreed to pursue a point of order after Question Period and present their argument that the Sub Judice convention should not apply in this particular case. I want to thank again the honourable Member for York Centre and others for their co-operation on this delicate but important question.

I should first explain the issue that is of concern to the honourable Member so that all honourable Members and the public will fully understand the context in which this matter arises. It is alleged by the honourable Member for York Centre that according to a sworn statement by a witness in a court of criminal law to the effect that the independent responsibility of the Royal Canadian Mounted Police to lay charges in criminal cases has been interfered with and the honourable Member for York Centre wished to put questions to the Solicitor General and wished to have the Solicitor General answer to that specific allegation.

Against this desire to enquire further, the honourable Member is confronted by the convention of this House that, and I quote: "Members are expected to refrain from discussing matters that are before the courts". I might emphasize that that is much more severely applied in the question of a criminal trial. The reason for this convention is to protect those persons who are undergoing trial and stand to be affected by whatever the outcome of the trial is. I point out that it is also because the trial may be affected by an exchange of debate in this place.

Yesterday the honourable Member for York Centre argued that the convention should be suspended because the process by which charges were laid is, and I quote the honourable Member, "not material to the criminal case now proceeding".

The Chair has also heard the arguments of the honourable Member for Oshawa and the Minister of Justice and Attorney General of Canada. The honourable Members for Windsor West (Hon.  Herb Gray) and Churchill (Mr. Rod Murphy), as well as the Parliamentary Secretary to the Government House Leader, also expressed their opinion on this subject.

I have now since yesterday, reviewed all of the comments offered. I have also reviewed the transcript of the court proceedings, at least up until, I take it, close of court yesterday. My research delved into all of the precedents referred to in Citation 336 of Beauchesne Fifth Edition and also the report of the Special Committee on the Rights and Immunities of Members tabled in the House on April 29, 1977, which commented at length on the Sub Judice convention. I point out that while that report was submitted to the House it was never adopted by the House, but I have read the report in its entirety and most of the appendices attached thereto.

The precedents and rulings found in Citation 336 of Beauchesne are very convincing. My predecessors, in cases of criminal proceedings, have applied the convention consistently. The British practice which was referred to by the Parliamentary Secretary to the Government House Leader is based on a very specific resolution adopted by the British House of Commons on July 23, 1963. That resolution in the British House gives their Speaker clear guidelines and specific authority. The Canadian House has never pronounced itself in such clear terms and I say to the honourable Member for York Centre that I realize that he was recognizing that fact, at least to some degree, in his argument yesterday.

The Committee did, however, comment on the role of the Speaker at page 1.11 of its report tabled in the House on April 29, 1977. It said:

Your Committee has given consideration to the role of the Speaker in the application of the convention. It is submitted that while there can be no substitute for the discretion of the Chair in the last resort, all Members of the House should share the responsibility of exercising restraint when it seems called for.^[4]

Beauchesne Fifth Edition, Citation 339, comments on this part of the report and adds that the Speaker should remain the final arbiter.

In the present criminal case of Regina v. Normand Belisle, John Appleby and Douglas Small the defence has put forward a motion for an order staying all proceedings, claiming that there has been an abuse of process. I repeat, the defence has put forward this motion.

A witness has been heard, or at least partially heard, and that specific matter as to what that witness testified and what flows from it has yet to be decided by the court. This obviously is an important step for the defence with considerable consequences for the accused, whatever the court may eventually decide. The issue the honourable Member and other honourable Members wish to raise in the House is the same issue the court is seized of and which that court must decide.

However, the honourable Member for York Centre and others wish to raise the matter in questions to the Solicitor General. The Chair has some difficulty in accepting the argument of the honourable Member for York Centre that such questions would not be material to the criminal proceedings under way where, as I have remarked, the present testimony is in support of a defence motion.

As a consequence, the Chair is unable to accept the argument that somehow the proceedings in this criminal trial can be split into that part to which the convention of Sub Judice applies and another part where it does not apply.

There is no doubt that the House has a fundamental right to consider matters of public interest, but by our convention on matters before the courts the Chair has the duty to balance that legitimate right of the House with the rights and interests of the ordinary citizen undergoing the trial.

Therefore, after reflection on the matter and in the light of the decisions taken by previous Speakers, I have decided that the Sub Judice convention should apply in this case for the time being. The honourable Member for York Centre will have further opportunities to pursue any related issues he may wish, and I include along with the honourable Member for York Centre other honourable Members, when the trial is over

I will also take this opportunity to rule on the question of privilege raised earlier this morning by the honourable Member for Oshawa. The honourable Member claimed that the evidence given at the criminal trial yesterday by Staff Sergeant Jordan of the Royal Canadian Mounted Police is at variance with evidence given by the Commissioner of the Royal Canadian Mounted Police before the Standing Committee on Justice and Solicitor General in June of this year. Consequently, it was argued that there has been a contempt of this House, or that a contempt of this House may have occurred.

I listened carefully to the arguments that were made and I reserved because the matter appeared on the surface to be linked to the point of order on which I have just ruled. On reflection, however, and in keeping with the House practice, I must find that there is no prima facie evidence of a contempt. There appears to be a discrepancy with respect to certain things that were said in two different places, but it is clearly up to the standing committee to pursue this matter if it so chooses. The Committee is the competent body to review evidence given before it and should report to the House if it finds any breach of its authority. I must say to the honourable Member for Oshawa that it would at least be premature for the Chair to rule now on this matter.

These matters are important and often very complex. They are sometimes even difficult for the Chair.

I wish to again express my gratitude to the honourable Members concerned for their cooperation and their patience.

I also want to express my appreciation for the very helpful and dignified way these arguments were brought to the Chair both yesterday and today. I think we also appreciate the very hard work which was done by our Table Officers last night and early this morning in order to assist the Chair to be able to return and give this ruling as expeditiously as possible.

It may well be that, given the fact that there was a committee report in 1977, honourable Members will want to look at this matter further. I, of course, invite them to do so and in that respect I am very much the servant of this place.

The Sub Judice convention in relation to this trial was raised again on November 20, 1989. In anticipation of an application for an emergency debate, Mr. Kaplan asked the Speaker for a clarification respecting the possible application of the Sub Judice convention. The Speaker replied that it might be more appropriate to defer discussion of the issue until later in the day. Shortly after, the Rt. Hon. John Turner (Leader of the Official Opposition) sought leave to propose the adjournment of the House pursuant to S.O. 52 (emergency debate) in order to discuss the issue of political interference in the administration of justice particularly with respect to certain RCMP investigations. In making his submission, Mr. Turner also sought to explain that the issue was not bound by the Sub Judice convention. Mr. Broadbent then rose to state that he had also wanted to propose an emergency debate on the same subject.

Mr. Speaker considered and subsequently dealt with the two matters together. To Mr. Kaplan's point of order, the Chair replied that for the moment at least the ruling of November 7 would apply. To the application for an emergency debate, Mr. Speaker ruled that the matter, although important, did not meet the requirements for an emergency debate.^[5]

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1989-11-07