Parliamentary Privilege / Rights of the House

Contempt of the House: access to a technical briefing on legislation

March 20, 2018

Debates, pp. 17744–5

On February 26, 2018, Ed Fast (Abbotsford) rose on a question of privilege regarding access to technical briefings held by the Minister of Environment and Climate Change in relation to Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts. Mr. Fast explained that, within an hour of the introduction of Bill C-69 in the House on February 8, 2018, the media and select stakeholders were offered a departmental briefing on the bill; however, the same briefing was not extended to members of Parliament until some five hours later. Mr. Fast argued that members’ exclusion from the first briefing impeded their ability to respond immediately to media and stakeholder inquiries and demonstrated contempt of the House and its members.^[1] On March 1, 2018, Kevin Lamoureux (Parliamentary Secretary to the Leader of the Government in the House of Commons) disagreed, arguing that the government had not deliberately impeded members’ access to information. He also noted that additional briefings could be offered, and that Bill C-69 would not be debated in the House until days later.^[2] The Speaker took the matter under advisement.

Resolution

On March 20, 2018, the Speaker delivered his ruling. He first reminded members regarding his concern that the question had not been brought to his attention at the earliest opportunity. He added that while he would show some flexibility this time, this essential condition in the determination of a prima facie question of privilege must be considered by members when making their case. While he also acknowledged the matter to be unfortunate and entirely avoidable, the Speaker concluded that, in this case, the House’s right to first access to legislation was respected as Bill C-69 was introduced in the House before the referenced media briefings. The Speaker then indicated that to constitute contempt, a proceeding of Parliament or members’ ability to perform their parliamentary functions must have been impeded. That not being the case, he could not find a prima facie case of contempt of the House or a breach of privilege. The Speaker did, however, remind members that timely and accurate dissemination of information is essential to the work of members and that those responsible for providing this information should do their best to expedite its access.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on February 26 by the hon. member for Abbotsford concerning briefings held by the Minister of Environment and Climate Change in relation to Bill C-69, an act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other acts.

I would like to thank the member for Abbotsford for having raised this matter, as well as the Parliamentary Secretary to the Leader of the Government in the House of Commons and the member for Berthier—Maskinongé for their comments.

In raising the matter, the member for Abbotsford explained that within an hour of having introduced Bill C-69 in the House on February 8, a briefing on the bill was offered to the media and to stakeholders. This briefing was more than five hours before members of Parliament were offered the same. With members unable to respond immediately to media and stakeholder inquiries, he contended that this was a profound act of disrespect on the part of the minister that constituted a contempt of the House.

The parliamentary secretary disagreed, saying that the minister had not deliberately tried to impede members’ access to information on the bill and would offer additional briefings, if requested. Noting that the bill was not debated in the House until days later and that departmental briefings are beyond the purview of the Chair, the parliamentary secretary said that no breach of privilege had occurred.

As I already noted, the Chair is concerned that this question of privilege was not brought up at the earliest opportunity. Members know that in determining a question of privilege prima facie, the Speaker must consider whether the two requisite conditions have been met; that is, whether the matter was raised at the earliest opportunity and whether, in the Speaker’s view, it constitutes, at first view, a breach of a parliamentary privilege.

With respect to timeliness, House of Commons Procedure and Practice, third edition, states at page 145:

…the Member must satisfy the Speaker that he or she is bringing the matter to the attention of the House as soon as practicable after becoming aware of the situation. When a Member has not fulfilled this important requirement, the Speaker has ruled that the matter is not a prima facie question of privilege.

In this particular case, I note that between February 8, the date of the alleged contempt, and February 14, the date on which the member raised his complaint in the House, several sitting days had elapsed during which the member was aware of the situation that gave rise to his question of privilege. This is cause for concern for the Chair, particularly as the member did not provide an explanation as to why the condition of timeliness was not satisfied. While I am prepared to be flexible on this point this time and not dismiss his question of privilege for this reason alone, it is a condition that must be taken into account in assessing the alleged question of privilege.

Now, turning to the substantive elements of the member’s question of privilege, there have been past instances where members have raised concerns about departmental briefings. Speaker Milliken, in a ruling on November 21, 2002, stated, at page 1742 of the Debates:

It is very difficult for the Chair to intervene in a situation where a minister has chosen to have a press conference, or a briefing or a meeting and release material when the Speaker has nothing to do with the organization of that …. The same thing goes for those who are invited to meetings and for the way people are notified of meetings. Whether there is one meeting, or three or four, makes no difference. In my opinion, it is impossible for me to intervene in this case.

It is equally important to understand that the House’s right to first access to legislation was respected in this instance since, as the member acknowledged, Bill C-69 was introduced in the House before either of the briefings in question took place. Thus, this situation cannot be characterized as one of premature disclosure of a bill, even if Members were excluded from the first briefing, that of the media.

The member stated that a contempt may occur if, by diminishing the respect it is due, the House’s ability to perform its functions is impeded. Speaker Sauvé, in a ruling on October 29, 1980, at page 4214 of the Debates, said:

… while our privileges are defined, contempt of the House has no limits. When new ways are found to interfere with our proceedings, so too will the House, in appropriate cases, be able to find that a contempt of the House has occurred.

This points to an essential truth that to constitute a contempt, it is necessary to demonstrate that a proceeding in the House, or the ability of members to fulfill their parliamentary duties, was in some way impeded. In response to a similar complaint, on December 4, 2014, at page 10168 of the Debates, my predecessor reminded the House:

That is not to say, however, that every proceeding or activity related to delivering or accessing information by members implicitly involves their parliamentary duties.

He also had cause to state on March 3, 2014, at pages 3429 and 3430 of Debates:

When a situation is brought to the Chair’s attention, it must be assessed within the somewhat narrow confines of parliamentary procedure and precedents. … the Chair must assess whether the member has been obstructed in the discharge of his responsibilities in direct relation to proceedings in Parliament. … a member who is preparing to participate in proceedings—whether through a technical briefing or some other means—is not participating in the proceedings themselves. While such preparation is no doubt important, it remains ancillary to, rather than part of, Parliament’s proceedings.

That being said, as Speaker, I understand the member for Abbotsford’s frustration and the sense of disrespect that he feels in not having had priority access to a briefing on such a complex piece of legislation. In fact, the Chair not only finds this matter to be unfortunate, but also entirely avoidable. While no parliamentary rules may have been broken or privileges breached, respecting members’ needs for timely and accurate information remains essential. There is no question that the work of members of Parliament is made more difficult without expeditious access to legislative information. Given this reality, there is a rightful expectation that those responsible for the information should do their utmost to ensure members’ access to it. Not respecting this expectation does a disservice to all. It is particularly disconcerting when the government gives priority to the media over the members of Parliament.

Having examined the evidence and given the limited parameters of the Chair in this matter, I cannot conclude that the House or its members were unable to fulfill their parliamentary duties. Accordingly, I cannot find that the question raised constitutes a prima facie contempt of the House, and thus there is no case of privilege.

I thank all honourable members for their attention.