Parliamentary Privilege / Rights of the House

Contempt of the House: government announcement that appeared to precede a decision of the House

May 29, 2017

Debates, pp. 11551–2

On May 10, 2017, Murray Rankin (Victoria) rose on a question of privilege regarding the announcement of job opportunities at the future Canada Infrastructure Bank, to be created by Bill C-44, An Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017 and other measures. When the job opportunities were posted by the government, Bill C-44 was at second reading stage and had not yet been voted on by the House. Mr. Rankin argued that the government’s actions were in contempt of the House’s authority. The Speaker took the matter under advisement.^[1]

On May 12, 2017, Kevin Lamoureux (Parliamentary Secretary to the Leader of the Government in the House of Commons) rose to say that the government had not authorized any spending for the creation of the Canada Infrastructure Bank. He added that consideration of Bill C-44 was proceeding as planned and that the government was authorized to begin planning for proposed initiatives.^[2]

Resolution

On May 29, 2017, the Speaker delivered his ruling. He pointed out that the government job postings did not mention that Parliament would have to pass the bill before an appointment could be made officially, and he expressed disquiet that a disclaimer regarding parliamentary approval had been added to these job postings after the issue was raised in the House. He found that, under the strict procedural confines of contempt, he could not find a prima facie contempt of the House nor a prima facie case of privilege.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on May 10, 2017, by the hon. member for Victoria concerning the government’s advertisement of job opportunities at the proposed Canada infrastructure bank.

I would like to thank the member for Victoria for having raised this matter, as well as the Parliamentary Secretary to the Government House Leader, the member for Perth—Wellington, and the member for South Surrey—White Rock for their interventions.

In presenting his case, the member for Victoria explained that the government had publicly launched the selection process for various positions at the proposed new Canada infrastructure bank before the bill creating the bank and its governance structure, Bill C-44, an act to implement certain provisions of the budget tabled in Parliament on March 22, 2017 and other measures, had been passed by Parliament and received royal assent. In fact, he noted that the bill had passed only second reading in the House. Arguing that all new activities and the appropriation of associated funds require the authorization of Parliament before being acted upon, he considered the actions taken by the government to recruit for these positions to be a contempt of the House and a grave attack against the authority of Parliament.

In response, the parliamentary secretary to the government House leader agreed that the Canada infrastructure bank being proposed by Bill C­-44 could not be established nor any associated funds spent until such time as the bill has been passed by Parliament. However, he added that the member for Victoria was making an assumption that the government was seeking to proceed prematurely, when, in fact, the government was simply proceeding with planning for the potential establishment of the bank. As proof of this, he cited the news release posted on Infrastructure Canada’s website which stated that the selection processes in question were subject to parliamentary approval.

As the charge being made by the member for Victoria is one of contempt, it is important to understand what constitutes contempt and, in doing so, what distinguishes contempt from privilege. House of Commons Procedure and Practice, second edition, at page 82, defines contempt as:

… other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges.

It continues, and I quote:

Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands or libels upon itself, its Members, or its officers.

I might add, as many of my predecessors have, that it is possible to categorize the privileges of both the House and the individual privileges of members which are limited, whereas contempt cannot be catalogued and defined categorically.

It is within that framework that the Chair must now determine if, in advertising prospective positions at the proposed Canada infrastructure bank in advance of Parliament having authorized its creation and funding, the government committed an offence against the authority or dignity of the House. Did it, to quote the member for Victoria, discount “the need of this House to pass legislation before it rolls out appointments for this institution…”? It is a serious question, one complicated, in some sense, by the need for the Chair to carefully measure precedents against the inability to either enumerate or categorize cases of contempt.

The Chair therefore examined thoroughly the evidence presented, including the news release on Infrastructure Canada’s website, as well as the proposed selection processes in question on the Privy Council Office’s website. In particular, as Speaker, I was looking for any suggestion that parliamentary approval was being publicized as either unnecessary or irrelevant, or in fact already obtained. Otherwise put, I was looking for any indication of an offence against or disrespect of the authority or dignity of the House and its members.

Madam Speaker Sauvé specified on October 17, 1980, at page 3781 of the Debates, that in order for advertisements to constitute contempt of the House, “there would have to be some evidence that they represent a publication of false, perverted, partial or injurious reports of the proceedings of the House of Commons or misrepresentations of members.”

The Chair’s review also looked for such evidence. In doing so, the Chair found that, in the news release on the Infrastructure Canada website, the words “subject to parliamentary approval” were clearly there, as the parliamentary secretary to the government House leader had indicated. In addition, the Chair notes that there is no reference to a starting date of employment. Thus, there were not any specific details found indicating that any position at the Canada infrastructure bank would be filled in advance of the enactment of the enabling legislation.

The Chair must also take into consideration the assertion of the Parliamentary Secretary to the Leader of the Government in the House of Commons that the advertisement was but a preparatory measure for a proposed initiative, in addition to his clear acknowledgement of the role of Parliament. In keeping with established practice, the Chair must take the member at his word.

However, as noted by the member for South Surrey—White Rock, the relevant job postings found on the appointments-nominations.gc.ca website maintained by the Privy Council Office lacked any reference to parliamentary approval. On this point, the Chair notes, with some disquiet, that this was changed after this matter was raised in the House. The advertised positions are now listed as “anticipatory”, and a disclaimer has been added in each case. It reads, “An appointment to the position will only be made once the legislation to create the Canada Infrastructure Bank has been approved by Parliament and receives Royal Assent.”

The member for Victoria has noted that Bill C-44 has passed second reading only: this leaves the House and its members still able to determine its outcome. As Speaker Fraser indicated in his ruling of October 10, 1989, at pages 4459 and 4460 of the Debates in a case with some similarity to the present one:

In order for an obstruction to take place, there would have had to be some action which prevented the House or Members from attending to their duties, or which cast such serious reflections on a Member that he or she was not able to fulfill his or her responsibilities.

The Chair has carefully considered that ruling, which had to do with a misrepresentation of Parliament’s role in government communications respecting the proposed goods and services tax in newspaper advertisements, because of its relevance to the current circumstance. It is interesting to note that in it, Speaker Fraser, in reference to the clarity of advertisements, reminded the public service that the role of Parliament needs to be acknowledged and respected.

Members are aware, however, that in the end Speaker Fraser did not arrive at a finding of prima facie contempt. The honourable member for Perth—Wellington may be right: had he been confronted again with such a case, Speaker Fraser may have ruled differently as he indicated he would. We will never know, as Speaker Fraser was not again seized of a matter of that kind.

Thus today I must assess the facts of this case on their own merits. In applying the strict procedural confines of contempt, the Chair must conclude that the question raised does not constitute a prima facie contempt of the House, and thus there is no prima facie case of privilege as there is no evidence to suggest that the House was obstructed in its legislative authority nor that members were obstructed in the fulfillment of their parliamentary duties.

I thank all hon. members for their attention.