Parliamentary Privilege / Rights of Members

November 2, 1999

Debates, pp. 963-4

On October 21, 1999, Jim Hart (Okanagan—Coquihalla) raised a question of privilege concerning what he claimed were deliberate delays in disclosing information under the provisions of the Access to Information Act by officials of the Department of National Defence. Mr. Hart argued that these officials, by their deliberate actions, had impeded him in his work as a member and their actions should constitute contempt of Parliament. Following comments by other members the Speaker said that he would review the interventions and come back to the House with a decision.^[1]

At the beginning of the sitting on November 2, 1999, the Speaker delivered his ruling. He noted that Mr. Hart had complained of the conduct of the two officials to the Information Commissioner. The Information Commissioner in his report found the instructions issued by these individuals to constitute improper interference with the lawful processing of access requests. As a result of Mr. Hart’s complaint and the commissioner’s report, the Department of National Defence was informed of the misconduct and acted to remedy the situation. The Speaker went on to say that while the actions of the two officials may have been deemed improper under the terms of the Access to Information Act, it was not a matter that the Speaker could judge. The Speaker declared that he could not determine that Mr. Hart had been obstructed in the performance of his parliamentary duties and therefore there were not sufficient grounds to find a prima facie case of privilege. The fact that these public servants were not properly fulfilling their duties was not in itself grounds for a charge of contempt. In order for a member to claim that his or her privileges have been breached or that a contempt has occurred, he or she must have been actually participating in a proceeding of Parliament.

Decision of the Chair

The Speaker: I am now ready to rule on the question of privilege raised by the honourable member for Okanagan—Coquihalla on October 21, 1999, concerning delays in the release of information under the Access to Information Act caused by staff of the Minister of National Defence.

Before beginning, I would like to thank the honourable member for raising the matter. I also want to acknowledge the contribution of the leader of the government in the House of Commons, the honourable member for Langley—Abbotsford, as well as the honourable Parliamentary Secretary to the Leader of the Government to this matter.

The honourable member for Okanagan—Coquihalla has argued that his privileges, as well as those of other members were breached by the actions of two employees of the Minister of National Defence, namely Mr. Aldege Bellefeuille and Mr. David Robinson, who delayed the release of information thereby obstructing him in the performance of his parliamentary work.

The member went on to assert that the delays in question constitute a contempt of the House.

Contempt as described by Joseph Maingot in his book Parliamentary Privilege in Canada is “an offence against the authority or dignity of the House”.^[2]

The 22nd edition of Erskine May states that:

Any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results may be treated as a contempt even though there is no precedent of the offence.^[3]

The member for Okanagan—Coquihalla did not state clearly in his presentation on this question of privilege nor in the supplemental material submitted to the Chair that he personally had been obstructed. The facts, as I have them, indicate that the member for Okanagan—Coquihalla had placed requests with the Department of National Defence to obtain information under the Access to Information Act and received the answers to his questions after what he stated was an intentional and deliberate delay initiated by Messrs. Bellefeuille and Robinson. Following this series of events, the member then proceeded to inform the Information Commissioner of his criticisms of the process. The Information Commissioner in his report found the instructions issued by these individuals to constitute improper interference with the lawful processing of access requests. As a result of the member’s complaint and the commissioner’s report, the Department of National Defence was informed of the misconduct and acted to remedy the situation.

While the actions of Messrs. Bellefeuille and Robinson may have been deemed improper under the terms of the Access to Information Act, this is not a matter that the Speaker can judge. As Speaker Fraser eloquently stated in his ruling on January 28, 1988:^[4]

I would remind the House that it is not the duty of the Speaker to judge the actions of public officials in the fulfilment of their duties. It is my duty only to determine whether or not sufficient evidence has been presented to judge if there has been a prima facie breach of privilege or contempt of the House.

The fact that these public servants were not properly fulfilling their duties is not de facto in itself grounds for a charge of contempt.

Technically, obstructing members in the discharge of their responsibilities to the House or in their participation in its proceedings is considered to be a contempt of the House. However, as Joseph Maingot writes, in his book Parliamentary Privilege in Canada, on page 82:

—the member must be exercising his functions as a member in a committee or in the House in the transaction of parliamentary business. Whatever he says or does in those circumstances is said or done during a “proceeding in Parliament”; in other words, while the member is functioning as a member, not in his constituency, but while actually participating in parliamentary business and saying or doing something necessarily incidental to parliamentary business.

Thus, in order for a member to claim that his privileges have been breached or that a contempt has occurred, he or she must have been actually participating in a proceeding of Parliament.

Joseph Maingot reiterates this point on page 86 of his book:

A member is doing something inherently connected with a “proceeding in Parliament” when putting down a question on the Order Paper, a notice of motion, a notice of motion for the production of papers, or a report stage amendment; when obtaining assistance to do any of these; or when obtaining assistance to draft a bill.

In order to fulfil their parliamentary duties, members should of course have access to the information they require. The Chair is mindful of the multiple responsibilities, duties and activities of all members and of the importance they play in the work of every member of Parliament. However, the gathering of information by an elected representative through means other than those available exclusively to members does not, in and by itself, necessarily constitute “a proceeding of Parliament”.

As stated in the 22nd edition of Erskine May on page 121:

Correspondence with constituents or official bodies, for example, and the provision of information, sought by members on matters of public concern will very often, depending on the circumstances of the case, fall outside the scope of “proceedings in Parliament” against which a claim of privilege will be measured.

Let me stress to all members of the House that any matter concerning the privileges of members, particularly any matter which may constitute a contempt of the House, is always taken seriously. At this time, however, based on the facts presented on this matter, the Chair cannot determine that the member has been obstructed in the performance of his parliamentary duties. I am therefore bound by practice to conclude that there are not sufficient grounds to find a prima facie case nor to proceed further at this time.

I thank the honourable member for Okanagan—Coquihalla for bringing this matter to the attention of the House.

P0116-e

36-2

1999-11-02