Parliamentary Privilege / Rights of the House

Contempt of the House: notice of proposed procurement alleged to have anticipated a decision of the House

September 28, 2011

Debates, pp. 1576–7

On September 19, 2011, Wayne Easter (Malpeque) rose on a question of privilege in relation to a notice of procurement concerning the Canadian Wheat Board. Mr. Easter maintained that text used in the notice led the public to believe that the repeal of the Canadian Wheat Board Act and the dissolution of the Canadian Wheat Board had been decided by the House. He stated that, in reality, no legislation to that effect had been introduced and no act of Parliament passed, nor was any committee examining any aspect of the Canadian Wheat Board. He believed the Government’s presumption that the Canadian Wheat Board Act would be repealed and the Canadian Wheat Board dissolved to be a contempt of the House. After hearing from other Members, the Speaker took the matter under advisement.^[1]

On September 23, 2011, David Anderson (Parliamentary Secretary to the Minister of Natural Resources and for the Canadian Wheat Board) stated that the notice was related to part of the Government’s planning efforts in preparing a bill and that it did not prejudice the ultimate decision of Parliament. After further interventions that day and on September 26, 2011, the Speaker again took the matter under advisement.^[2]

Resolution

On September 28, 2011, the Speaker delivered his ruling. He stated that, in his view, the language used in the notice of proposed procure­ment was not absolute and the notice presented a hypothetical scenario which did not presume the outcome of any legislative action. Furthermore, he viewed it as part of a planning process that might be expected in contemplating the possible repeal of the Canadian Wheat Board Act. He concluded that the matter did not constitute a contempt of the House and that there was no prima facie question of privilege.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on September 19, 2011, by the Member for Malpeque concerning a notice of proposed procurement in respect of the Canadian Wheat Board.

I would like to thank the Member for having raised this matter, as well as the Parliamentary Secretary to the Leader of the Government in the House of Commons, the Members for Winnipeg Centre and Winnipeg North, and the Parliamentary Secretary to the Minister of Natural Resources and for the Canadian Wheat Board for their interventions.

Before reviewing the arguments in the case before us, it might be useful to offer Members a short explanation of what constitutes a contempt of the House. Whereas the privileges that extend to Members individually and to the House as a collectivity are finite and can be categorized, contempts cannot be enumerated or categorized.

House of Commons Procedure and Practice, Second Edition, at pages 82 and 83, notes that the House claims the right to punish, as a contempt, actions which are not specific breaches of privilege, but which tend to impede the House or its Members in the performance of their functions or are offences against the authority or dignity of the House. While all breaches of privilege are contempts of the House, not all contempts are necessarily breaches of privilege and the House of Commons enjoys a very wide latitude in maintaining its dignity and authority through the exercise of its contempt power.

As noted on page 85 of House of Commons Procedure and Practice, [Second Edition]:

By far, most of the cases of privilege raised in the House relate to matters of contempt challenging the perceived authority and dignity of Parliament and its Members.

In the present case, the Member for Malpeque has alleged that a contempt of the House has arisen from “the presumption that the repeal of the Canadian Wheat Board Act, a procedure which can only be sanctioned by an act of Parliament, will in fact occur”. This presumption, he maintains, is evidenced by a direct reference in the notice of proposed procurement for a contract posted on the MERX Canadian Public Tenders website on August 11, 2011. To support his contention, the Member for Malpeque has pointed to a statement in the notice that reads as follows:

The purpose of the audit is to provide reasonable assurance of the total financial impact of the repeal of the Canadian Wheat Board Act and the dissolution or winding up of the CWB after the final pooling periods (expected to be July 31, 2012).

In his view, the posting of this notice constitutes contempt since no legislation has been tabled, let alone passed, regarding the winding up of the Canadian Wheat Board.

The Parliamentary Secretary pointed out that contrary to the assertion of the Member for Malpeque, the very fact that no legislation had yet been introduced concerning the future of the Canadian Wheat Board, and that there had not been any public advertising stating when such legislation would be introduced or passed was proof enough that the Government was not presuming that Parliament would take a particular decision in relation to the future of the Canadian Wheat Board.

Rather, he explained, the Government had simply issued a notice of procurement asking interested and qualified suppliers to provide the Government with audit information regarding the financial impact of the repeal of the Canadian Wheat Board Act, if that were to occur based on certain assumptions.

In his submission, the Member for Malpeque quoted from a number of rulings by my predecessors, Speakers Fraser, Parent and Milliken, pertaining to the issuance of Government advertisements containing language that was seen to presume on decisions that Parliament had yet to make. The Chair has reviewed those rulings and understands why the Member for Malpeque has used them in his arguments before the House. There is no doubt that they deal with the principle the Member feels has been offended in this case. A close reading of the circumstances in each of the cases cited shows, however, that this particular case is not quite as analogous as the Member has suggested. For example, in the case of the decision by Mr. Speaker Fraser, much of the controversy surrounded Government advertisements that clearly stated a date when the then proposed new GST would come into effect. In addition, it should be noted that the MERX document now at issue was not publicized widely in the same manner as the 1989 GST advertisements.

In this case, the Chair has closely examined the wording of the notice of proposed procurement and has found no reference at all to a date by which the Canadian Wheat Board Act will be repealed. Instead, as the Parliamentary Secretary has pointed out, the notice requests specific audit information regarding the financial impact of the repeal of the Canadian Wheat Board Act, if such a repeal occurs, and proposes certain assumptions on which to base the calculation of that impact. One of these assumptions is that the final pool period is expected to be July 31, 2012. In the opinion of the Chair, the language is not absolute. The Member for Malpeque has also quoted from the terms of reference of a task force the Minister of Agriculture and Agri-Food has established. Although the Chair has not seen this document, the parts quoted by the Member for Malpeque appear to use similar language.

The notice itself presents a hypothetical scenario. It does not foresee a specific timetable for legislative action, let alone presume the outcome of such action. As I see it, the notice and task force terms of reference form part of a planning process that might be expected in contemplating the possibility of the repeal of the Canadian Wheat Board Act. I know the Member for Malpeque does not expect the Chair to monitor all internal processes undertaken by the Government as part of its preparatory work in advance of proposing legislative measures to the House. Accordingly, I cannot agree with the hon. Member for Malpeque’s statement that “The Government presumes that the act has been repealed, which in fact it has not”. I see no evidence of such a presumption.

In the present instance, I do not believe that the wording of the text of the notice of procurement posted on the MERX site is ambiguous: rather, in my view, it presents a hypothetical case and seeks information on the impact of such a scenario. The Chair cannot find therein a challenge to the authority or dignity of the House or its Members, or the primacy of Parliament.

Therefore, I must conclude that the case does not constitute a contempt of the House and there is no prima facie case of privilege.

I thank all Members for their attention.