Parliamentary Privilege / Rights of Members

November 16, 1999

Debates, pp. 1287-8

On November 1, 1999, Jean-Paul Marchand (Quebec East) raised a question of privilege concerning a civil suit brought against him by a Senator who had taken offence to a document on the subject of the senate, sent by Mr. Marchand to his constituents. Mr. Marchand felt that the senator’s actions constituted an attack on the authority and dignity of the House of Commons and a breach of his right of freedom of speech as an elected member. Following interventions by other members, the Speaker declared that he would return to the House, if necessary.^[1]

At the beginning of the sitting on November 16, 1999, the Speaker delivered his ruling. The Speaker concluded that there was no breach of Mr. Marchand’s privilege of freedom of speech since the incident referred to concerned information contained in a document distributed by the member to his constituents which did not involve a proceeding in Parliament and was therefore not protected by privilege. With respect to the complaint Mr. Marchand had against the senator, the Speaker indicated that since each House is considered independent of the other, neither House could claim authority over any member of the other House. He ruled that the matter did not constitute a prima facie case of privilege, nor a contempt of Parliament.

Decision of the Chair

The Speaker: On Monday, November 1, 1999, the honourable member for Quebec East raised a question of privilege concerning the breach of his privileges in relation to a civil suit launched against him by a senator who accused him of distributing defamatory material.

I would like to take this opportunity to thank the honourable member for raising the matter. I also want to acknowledge and thank the leader of the government in the House of Commons, the opposition House leader, the Progressive Conservative House leader, the Bloc Québécois House leader and whip of the Bloc Québécois for their contributions on this matter.

The honourable member indicated that a lawsuit was launched against him by a senator following the distribution to his constituents of a bulk mailing of 16 pages on the subject of the Senate. His question of privilege concerned the involvement of the Senate in the lawsuit and the belief that this involvement was an aggressive act against the House of Commons and a breach of his privilege of freedom of speech as an elected member of this House. He alleged that there had been direct or indirect involvement of the Senate in the lawsuit and that this constituted an attack on the authority and dignity of the House of Commons.

There are a number of things that I wish to deal with at this time. First, I want to underline that I will make no comment on the civil case that is now before the courts since this would be inappropriate and not in keeping with our longstanding practices. Second, I do not believe that the Speaker should comment on decisions the Board of Internal Economy may or may not have taken. I am sure that all members will appreciate and understand that the House is certainly not a court of appeal for decisions taken by that body. Indeed, while questions can be addressed to the Board of Internal Economy representatives during question period, the House through the Parliament of Canada Act, has mandated the Board of Internal Economy as the final authority in these matters.

I will however comment on the contention that the honourable member’s parliamentary privilege of freedom of speech has been breached. Erskine May suggests on page 143 of the 20th edition that:

It would be vain to attempt an enumeration of every act which might be construed into a contempt, the power to punish for contempt being in its nature discretionary…It may be stated generally 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.

Any attempt to intimidate a member with a view to influencing his or her parliamentary conduct is a breach of privilege. Let me reiterate for all members that privilege is a fundamental principle of parliamentary law.

In the 22nd edition of Erskine May, page 65, parliamentary privilege is defined as:

—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.

The position put forward by the honourable member for Quebec East suggests that the senator has made an explicit effort to intimidate him by limiting his freedom of speech.

As all honourable members know, the privilege of freedom of speech is so fundamental that this House could not discharge its constitutional duties without it. May goes on to state in the 19th edition that, “Freedom of Speech is a privilege essential to every free council or legislature”.^[2]

All members must realize, however, that there are very real limits to parliamentary privilege. Speaker Jerome, when speaking on the limits of parliamentary privilege in his ruling of February 20, 1975,^[3] added:

The consequences of extending that definition of privilege to innumerable areas outside this Chamber into which the work of an MP might carry him, and particularly to the great number of grievances he might encounter in the course of that work, would run contrary to the basic concept of privilege.

Let me stress that, in order to have a breach of the honourable member’s privileges, the matter complained of must be directly related to a proceeding in Parliament. If a member is indeed subjected to threats and intimidation, he or she is clearly hindered in the fulfilment of the parliamentary responsibilities for which he or she was elected.

The crucial question that must be determined is “What constitutes proceedings in Parliament?”

Erskine May in the 19th edition, at page 87, characterizes “proceedings of Parliament” in the following manner:

An individual member takes part in a proceeding usually by speech, but also by various recognized kinds of formal action, such as voting, giving notice of a motion, etc., or presenting a petition or a report from a Committee, most of such actions being time-saving substitutes for speaking.

Joseph Maingot clearly states on page 315 of his book Parliamentary Privilege in Canada, and I quote:

It may be pointed out that in regard to this privilege, a member’s privilege of freedom of speech concerns speaking in the House or assembly or in a committee. In addition, the member is also protected when carrying out those duties, as a member of the House, that have a nexus with a parliamentary proceeding. However, when the member performs such duties to his constituents and his party the fulfilment of which do not involve a parliamentary proceeding, the member is not so protected.

I believe that my predecessor, Speaker Fraser, stated matters succinctly on June 10, 1993:^[4]

What a member says outside the House about anyone is subject to the laws of the land relating to libel or slander as it would be for any other Canadian—if indeed the comments are actionable. What members say in the Chamber, however, is protected by privilege.

Although I view the types of charges raised by the honourable member with great importance, my role as Speaker is limited to dealing strictly with breaches of privilege that occur during proceedings in Parliament. In the words of Joseph Maingot on page 105 in his book Parliamentary Privilege in Canada:

It is necessary for something to be said or done in the transaction of a “proceeding in Parliament” before the member has parliamentary immunity.

Since the incident referred to concerns information contained in a document distributed by the honourable member to his constituents, it is quite clear that this did not take place during proceedings in Parliament and is therefore not protected by privilege.

In addition, with respect to the complaint the honourable member for Quebec East has against the senator, I must underline that the House has no authority over the Senate. In the 22nd edition of May, on page 149 it is stated and I quote:

Since the two Houses are wholly independent of each other, neither House can claim, much less exercise, any authority over a member or officer of the other, and thus cannot punish any breach of privilege or contempt offered to it by such member or officer. If a complaint is made against a member or officer of the other House, the appropriate course of action is to examine the facts and then lay a statement of the evidence before the House of which the person complained of is a member or officer.

For the reasons stated above, I must rule that the matter does not constitute a prima facie case of privilege, nor a contempt of Parliament.

P0118-e

36-2

1999-11-16