Parliamentary Privilege / Rights of Members

June 13, 1995

Debates, pp. 13727-8

On May 30, 1995, after Oral Questions, Elsie Wayne (Saint John) rose on a question of privilege concerning the unauthorized use of a photograph of her in the Minister of Health’s report on plain and generic packaging of tobacco products. Mrs. Wayne asserted that the use of the photo violated her privileges, was an assault on her dignity as an individual and a member, exposed her to ridicule and gave a false image which could be injurious to her carrying out her functions as a member. After an intervention by Peter Milliken (Parliamentary Secretary to the Leader of the Government in the House of Commons), the Speaker stated that before ruling on the matter he would like to hear from Diane Marleau (Minister of Health) when she returned to the House.^[1]

At the beginning of the sitting on June 1, 1995, the Speaker gave the floor to the minister on the question of privilege raised by Mrs. Wayne two days earlier. The minister explained the particulars surrounding the unauthorized use of Mrs. Wayne’s photo. She responded to certain statements made by Mrs. Wayne and tabled a copy of the letter she had sent to Mrs. Wayne to this effect. The Speaker took the matter under advisement.^[2]

Following Oral Questions on June 13, 1995, the Speaker delivered his ruling. While sympathizing with Mrs. Wayne over her embarrassment, the Speaker could not conclude that she had been impeded in the performance of her duties as a member and found that, in the absence of malicious intent or any other obvious motive, no contempt of the House had occurred.

Decision of the Chair

The Speaker: I am now ready to rule on the question of privilege raised by the honourable member for Saint John on May 30, 1995. For providing me with the relevant facts and documents related to this matter and for their contributions to the discussion, I would like to thank the honourable member and the honourable Minister of Health.

In her presentation, the member brought the House’s attention to a photograph of her used in an expert panel report entitled “When Packages Can’t Speak”. The report concerning plain and generic packaging of tobacco products had been prepared at the request of the Department of Health.

The member claimed that the unauthorized use of her picture in a visual impact study included in the report had violated her privacy, was an assault on her dignity as an individual and as a member of the House, had opened her up to ridicule and had stereotyped her in a manner that misrepresented who she was and thus could impede her ability to perform her duties as a member of Parliament. She therefore requested a public apology from the Prime Minister and an explanation from the Minister of Health as to how her picture could have found its way into this expert panel report.

On June 1, 1995, the honourable Minister of Health responded to the matter. In her intervention, the minister explained that she, members of the expert panel and representatives of the private company charged with selecting the photographs, when informed that the picture used was one of the honourable member, had immediately issued a letter of apology to the member. The minister then tabled a copy of a letter to the honourable member explaining how her picture had been selected

This matter has troubled me and I have looked into it carefully. I believe that it is important that I give the House a chronology of certain events which preceded the raising of this question of privilege, for the panel report in question is part of a larger study in which the House, through one of its committees, has been directly involved.

On June 21, 1994, the Standing Committee on Health presented its first report entitled “Towards Zero Consumption: Generic Packaging of Tobacco Products”.^[3] Pursuant to Standing Order 109, the government was requested by the committee to table a comprehensive response. On November 18, 1994, the Minister of Health tabled the government response to the committee report.^[4] In responding to the standing committee’s recommendations the government noted that:

—an expert panel, comprised of specialists in marketing, package design and consumer behaviour, and chosen in collaboration with provincial and territorial partners in the National Strategy to Reduce Tobacco Use, has established a study framework designed to determine what relationship may exist between generic packaging and the taking up of smoking by youth.

The government response also noted that Health Canada would thoroughly review and analyse the evidence assembled by the expert panel and would take into account the study and conclusions of the Standing Committee on Health. Thus, the standing committee could be said to have been anticipating the opportunity to give detailed study to the panel report

The report dated March 1995 was released to the media and the public on May 19, 1995. To ensure that the committee was familiar with its contents, that morning Health Canada held an informal briefing for the committee attended by members, staff and researchers. Copies of the report were also distributed to all members of the House in the usual manner.

Photographs of members of Parliament and images of the House of Commons and the Parliament buildings are seen everyday on television and in newspapers and magazines. These images form part of the media coverage of Parliament that we have come to expect. They may be used in a straightforward manner or satirically, but their focus is ultimately on the work of Parliament and parliamentarians.

It is possible however that these same images of members and of the institution of Parliament may be misrepresented. In our history there exist examples of cases where the symbols of Parliament have been used inappropriately. In each instance objections have been raised in the House.

As examples, I would refer members to Speakers’ rulings regarding the Sperry and Hutchison Company, as found in the Journals of February 16, 1960, at pages 156 to 158, and the Steelworkers of Hamilton Council as found in the Journals of March 23, 1965, at pages 1159 and 1160. In both cases, documents meant to look like Hansard, a publication carrying with it the image of the House of Commons, were published and distributed by non-parliamentary bodies. The Speaker ruled both matters to be prima facie cases of privilege.

As members are aware, Erskine May’s 21st edition, at page 69, defines privilege as follows:

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.

Nevertheless, not every matter which is seemingly offensive to the House may fall within the strict definition of privilege. As May continues:

When any of these rights and immunities is disregarded or attacked, the offence is called a breach of privilege and is punishable under the law of Parliament. Each House also claims the right to punish as contempts actions which, while not breaches of any specific privilege, obstruct or impede it in the performance of its functions, or are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself, its members or its officers.

Most relevant to our current situation, May further points out on page 121 of the 21st edition that:

Indignities offered to the House by words spoken or writings published reflecting on its character or proceedings have been constantly punished by both the Lords and the Commons upon the principle that such acts tend to obstruct the Houses in the performance of their functions by diminishing the respect due to them.

Reflections upon members, the particular individuals not being named or otherwise indicated, are equivalent to reflections on the House.

My role is to determine therefore whether or not at first glance the circumstances of the question of privilege before me fit the criteria as described by Erskine May. The question is: Has the use and publication of the photograph of the honourable member for Saint John constituted a contempt of the House?

The honourable Minister of Health has explained to the House and to the honourable member for Saint John how this incident arose. She has also apologized on more than one occasion, as have others involved in the production of the report.

Based on my research and my understanding of the citations found in Erskine May I cannot conclude the member, although perhaps embarrassed by this event, has been impeded in performing her duties as a member of the House of Commons.

In the absence of malicious intent or any other obvious motive it is difficult to find that a contempt of the House has occurred.

Members of Parliament are public figures and frequently appear in the media. Those who interact with government and with Parliament must remember the use of a member’s photograph in a situation totally unrelated to his or her parliamentary duties may well lead to unforeseen difficulties and could cause considerable embarrassment.

In this case I can only go so far as to remind everyone that the House of Commons and its members must be treated with respect and dignity first by its membership and also by all intervening parties. I hope all members appreciate the seriousness and potential dangers of a repetition of a situation such as this.

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1995-06-13