Parliamentary Privilege / Rights of the House

November 6, 1990

Debates, pp. 15177-81

In the Fall of 1990, the Government announced a new policy of imposing a three per cent surcharge on student loans to discourage defaults. During Question Period on October 17, 1990, National Students’ Day, as Howard McCurdy (Windsor—St. Clair) was putting a question to the Ministry on this surcharge, students from the University of Ottawa, seated in the north gallery, disturbed the proceedings by throwing objects (uncooked macaroni and protest cards) onto the floor of the Chamber.

Once order had been restored, the Speaker suggested that Mr. McCurdy take the opportunity in his supplementary to dissociate himself from the protestors. Mr. McCurdy did. Immediately after Question Period, the Speaker apologized for his comment and stated that he had not intended to imply that Mr. McCurdy was involved in the protest. Shortly after Question Period, Ms. Audrey McLaughlin(Leader of the New Democratic Party) (Yukon), leader of the New Democratic Party, rose on a point of order to protest the attacks on the New Democratic Party caucus by members of the Government and asked the Don Mazankowski (Deputy Prime Minister, President of the Privy Council and Minister of Agriculture) to retract the comments of Progressive Conservative Members. The Speaker took the matter under advisement and called upon Members to maintain as much dignity and civility as possible.^[1]

On the following day, October 18, 1990, Albert Cooper (Parliamentary Secretary to the Government House Leader) rose on a question of privilege to argue that the event of the previous day constituted a contempt of the House and that Mr. McCurdy had been “an accessory to this contempt against our Parliament.” He contended that Mr. McCurdy and others had prior knowledge of the demonstration, yet, did not attempt to stop it. He offered what he maintained was sufficient evidence for the Speaker to rule that a prima facie case existed and stated that he was prepared to move the appropriate motion should the Speaker so find. Mr. McCurdy denied that he, the House leader of the New Democratic Party, or any member of the NDP caucus had any prior knowledge that such a demonstration was to take place. Furthermore, he concluded that Mr. Cooper should be held in contempt for making such “contemptible accusations.”

The Speaker heard further argument from several other Members before closing off the discussion and reserving on the matter.^[2]

On November 6, 1990, the Speaker returned to the House to deliver the ruling. This ruling is reproduced in extenso below together with supplementary comments from the Speaker and excerpts of a committee report tabled on the matter.

Decision of the Chair

The Speaker: During Question Period on Wednesday, October 17, there was a demonstration in the gallery which occasioned a number of heated exchanges. The Chair undertook to consider carefully what had been said and to come back to the House and report if it were appropriate to do so.

On the following day, Thursday, October 18, the honourable Member for Peace River, the Parliamentary Secretary to the Leader of the Government in the House of Commons, rose on a question of privilege, in his own words:

…specifically to argue that certain Members of the New Democratic Party participated in an action which demonstrated a clear contempt against yourself personally and this House generally.

The honourable Parliamentary Secretary then proceeded to charge that since the honourable Member for Windsor—St. Clair knew of the demonstration, and did nothing to stop it, he was in fact an accessory to the contempt. He laid several items before the House and indicated that should the Chair conclude that this matter should be accorded privilege treatment, he was prepared to move the following motion:

That the entire matter of the demonstration held in the public gallery on Wednesday, October 17, 1990, during Question Period, and the prima facie evidence that the honourable Member for Windsor—St. Clair had prior knowledge of this demonstration be referred to the Standing Committee on Privileges and Elections.

The Chair has had the opportunity to reflect at some length on this matter and has found it convenient to organize its thoughts about three aspects of the matter. First, the disturbance itself is a prime concern and it is one which the Chair should like to pursue a little later on in these remarks, in order to focus initially on the more immediate concerns of whether there was involvement by a Member or Members of this House in the perpetration of this unacceptable demonstration and if so whether the conduct of an honourable Member may be brought into question by means of a question of privilege.

At the outset the Chair would like to make it very clear what is to be decided here. In ruling on a question of privilege the Chair does not ultimately decide upon the matter. The Chair can only decide whether, on the basis of the material presented to the House, it appears likely that there has been a breach of privilege, which is so grievous that we set aside all other business before this House to consider the alleged breach. To be more specific, in this particular instance, the Chair must be satisfied that from the evidence presented it is reasonable to conclude that the honourable Member for Windsor—St. Clair had in some way participated in or aided in some manner the offensive demonstration.

The honourable Parliamentary Secretary has presented to this House what he described as prima facie evidence. There were, I believe, five pieces of such evidence. Perhaps it would be advantageous to consider what prima facie evidence is. Black’s Law Dictionary, Fifth Edition, at page 1071 defines prima facie evidence as “evidence which suffices for the proof of a particular fact until contradicted and overcome by other evidence”. Although the sufficiency of the evidence put forward was the subject of some comment during our discussion of the question of privilege, it does not appear necessary to delve further into that aspect because in any event it has been denied or explained or challenged and the Chair is of the opinion that those denials and explanations outweigh the evidence submitted which is largely circumstantial.

There is a time honoured tradition in this place that we accept an honourable Member’s word.

The honourable Member for Humber—St. Barbe—Baie Verte (Mr. Brian Tobin) in his intervention in this discussion described that tradition of accepting an honourable Member’s word “as primary and essential to the functioning of this place” and cautioned that “if we depart from that we will be in very great difficulty in this place”. The Chair is indebted to the honourable Member for Humber—St. Barbe—Baie Verte for that turn of phrase and for the reasoning developed in his intervention.

In response to the Parliamentary Secretary’s accusation that he had prior knowledge of the demonstration, the honourable Member for Windsor—St. Clair categorically denied that he or any member of his caucus was informed or was aware of it. He was supported in this by several members of his caucus. Even were he not, even were he to have stood alone, we in the House are bound to accept the honourable Member’s word—such is the nature of our institution that a Member’s word is paramount—and we lose sight of that at our peril.

To my mind, this aspect of the affair was concluded with the denial of the accusation by the honourable Member for Windsor—St. Clair. Accordingly, I cannot find that there is any question of privilege which should be put to the House in respect of that matter.

Accordingly, it would not be appropriate to allow the Parliamentary Secretary to put to the House, as a privileged motion, that portion of his proposed motion that relates to the prior knowledge of the demonstration.

I should like now to turn to the demonstration itself and to a consideration of the propriety of raising that matter as a question of privilege. As I said last Thursday, I listened with some comfort to representations from some Members regarding the respect which we need to have for this place and which other people ought to have for it. I am pleased to accede to the suggestion of the honourable Member for Saint-Denis (Mr. Marcel Prud’homme) that the Chair, at an appropriate time, remind us of what this House is all about and reinforce the seriousness of the disturbance which took place in our galleries. The honourable Member for Saint-Denis, a devotee of parliamentary tradition, has a well-developed sense of the House and its changing moods and tenors and I sincerely welcome his well-considered advice.

I also understand and share the fear expressed by the honourable Minister of State and Leader of the Government in the House (Hon. Harvie Andre) that the disturbance in our galleries might be seen as a legitimate form of political dissent and is an indication of the disrespect in which the perpetrators held this institution. Those who would safeguard their rights must be ever vigilant to insidious encroachments thereupon.

In the past, the House has usually chosen to ignore those who offended its dignity by interrupting proceedings because it was reluctant to inadvertently advertise their causes. Maingot, in [the First Edition of] Parliamentary Privilege in Canada, notes at page 203:

All kinds of misconduct in the presence of the House or of a committee may be treated as contempts on the ground that they partake of an affront to the dignity of the House…

Misconduct or misbehaviour in the traditional sense would include acts that disrupt or have a tendency to disrupt or interrupt the House or committees by such acts as shouting, throwing objects, waving placards… Many instances have occurred where disorderly conduct has taken place, even to the extent of temporarily suspending the House, but the general position of the House is that the dignity of the House would be best served by taking no action in such cases… The House is reluctant to take action against those attempting to disrupt the proceedings in this way because of the attendant publicity it would provide them.

Perhaps the time has come to re-examine our practice in this regard. If so, that is for the House to decide. What the Chair must decide at this point is whether the motion put forward by the honourable Parliamentary Secretary, now stripped as it is of any reference to prior knowledge of the demonstration, is to be accorded privileged treatment.

Were I to decide that the question should be put to the House immediately, then the honourable Parliamentary Secretary would be invited to put his revised motion referring the matter of the demonstration in the galleries to the privileges and elections committee. The motion could then be debated, amended, and voted upon. Depending on the outcome of that process, it might then be considered by a committee and reappear before the House if and when the committee reported.

If the Chair appears to belabour the point, it is simply to insist upon the potential complexity and length of the process initiated by the characterization of a question of privilege as prima facie.

The Chair states clearly that it would have very little difficulty in characterizing the revised motion as privileged, yet the Chair is reluctant to unleash the consequences of that decision. At this stage I wonder if I could prevail upon the honourable Parliamentary Secretary to consider, in view of the deletion of part of the proposed motion, whether he wishes to proceed with this matter as a privileged item at this time.

I would ask the honourable Parliamentary Secretary if he would help the Chair in that regard.

Mr. Albert Cooper: Mr. Speaker, I have no problem at all in accepting the ruling that you have made today or the word of the honourable Member for Windsor—St. Clair. It also would be my intention, as I understand it, to go ahead with the amended motion. I do not have a problem with that, if I am sure I have the right words.

The Speaker: I take it the honourable Parliamentary Secretary has accepted completely the words of the honourable Member for Windsor—St. Clair, and that is the honourable Parliamentary Secretary’s declaration to this House. The honourable Parliamentary Secretary wishes to move the motion.

The motion was immediately put and adopted without debate. Accordingly, it was ordered, that the entire matter of the demonstration held in the public gallery on Wednesday, October 17, 1990, during Question Period be referred to the Standing Committee on Privileges and Elections.

At that point, Mr. McCurdy rose to complain that although the ruling had dealt with the behaviour of the students, it had not addressed the issue of one Member bringing charges of contempt against another Member. He argued that by making false allegations in the House, Mr. Cooper was in contempt of the House. He and Mr. Nelson Riis (Kamloops) both urged Mr. Cooper to apologize and to withdraw his remarks. ln response, Mr. Cooper stated that at the time he made the remarks he believed them to be true; therefore, he could not deny them. The Speaker quickly intervened to inform Mr. McCurdy that if he wished to debate that specific matter further, he should find an appropriate forum in which to do so.^[3]

This exchange was concluded with the following words from the Chair:

The Speaker: …The honourable Member has heard the judgment of the Chair which, as far as I am concerned, completely absolves the honourable Member from any of the accusations, whatever they may have been, that were made. There can be no doubt about that. The honourable member and other honourable Members have a chance to reflect on the exact wording of my judgment. The honourable Parliamentary Secretary has said he accepts that completely.

If the honourable Member wishes to have the honourable Parliamentary Secretary say something more, there may be a procedure in which he can raise it, but the Chair cannot order the honourable Parliamentary Secretary to do more at the moment than he has done.

The Parliamentary Secretary has said that when he made those accusations, however unfounded they may have turned out to be, he did not do it dishonestly. The honourable Member for Windsor—St. Clair now says that he lied. That is a very serious allegation and, if the honourable Member for Windsor—St. Clair wants to pursue it, he will have to pursue it according to the rules and at another time.

The essence of this was that there was a demonstration, which in my view, prima facie, is a contempt of this House. It was an argument about who might have known about it and who might have prevented it. That argument, while of course serious, and especially serious to the honourable Member for Windsor—St. Clair, and I understand that, is important and I am not diminishing the importance of it. I do not think the argument at the moment should take precedence over the fact that these kinds of demonstrations which some people in this country think are perfectly legitimate, are absolutely not legitimate. That is the fundamental point that has to be made.

The Standing Committee on Privileges and Elections to which the matter of the demonstration was referred reported to the House on Wednesday, March 6, 1991. The concluding paragraph of the 24^th report presented a concise summary of the Committee’s response:

The Committee does not recommend that any specific action be taken with respect to the participants in the infamous “macaroni” caper of October 17, 1990; however, the Committee recommends that any demonstrations or disturbances that take place in the galleries in the future should be taken very seriously, and the participants punished or charged. It is very important that the message be clearly conveyed that the House will not tolerate such behaviour.^[4]

No motion was presented for concurrence in the Committee report.

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1990-11-06