Parliamentary Privilege / Rights of Members

Interference with Members—intimidation and immunity: right of Member to be free from intimidation and immune from prosecution in respect of proceedings in Parliament

July 18, 1988

Debates, pp. 17672-4

On May 4, 1988, Jack Shields (Athabasca) rose on a question of privilege alleging that his rights and privileges as a Member to speak in a free and unfettered way had been breached as a result of a lawsuit brought against him following questions he had raised in the House. Other Members also intervened on the matter.^[1] The Speaker, having interjected throughout the discussion of the question of privilege, reserved on the matter. On July 18, 1988, the Speaker delivered his ruling, which is reproduced in extenso below.

Decision of the Chair

The Speaker: I want to bring to honourable Members’ attention a matter of some importance which was raised on Wednesday, May 4, 1988, by the honourable Member for Athabasca, and commented upon by other honourable Members on both sides of the House. On that day the honourable Member raised a question of privilege alleging that his rights and privileges as a Member of the House had been breached as a result of a lawsuit commenced against himself and other parties.

I have given this matter serious consideration and carefully reviewed the arguments offered by all the honourable Members who participated in this discussion and I thank them for assisting the Chair. I have also consulted the relevant authors and precedents on the matter, and I am now prepared to make a determination on the question at issue.

For the benefit of honourable Members and the public the Chair would like to summarize the facts as they were presented by the honourable Member in his intervention. On October 14, 1987, the honourable Member for Athabasca placed on the Order Paper Question No. 207, which reads as follows:

Since April 1968, have (a) grants (b) loans (c) loan guarantees (d) contracts been provided by the Government to Hurtig Publishers of Edmonton or other Hurtig enterprises and if so, how many and, in each case (i) on what date (ii) in what amount (iii) for what purpose?

In accordance with the rules of the House, the Government provided a written answer on January 27,1988. Essentially, that answer indicated that certain government Departments and agencies granted various amounts of money to Hurtig Publishers Ltd. for the purposes of training programs, sales and marketing assistance, and feasibility studies, inter alia, as reported at page 15125 of Hansard for May 4, 1988.

At that point, so that everyone understands this, the honourable Member had done what he was completely entitled to do. He had used the written question procedure to ask the Government certain questions. The Government then responded to those questions.

The honourable Member stated in his argument that, in late February, as a result of the answer tabled in the House, he received a letter from a law firm in Edmonton, acting for Mr. Mel Hurtig, which intended to proceed with a defamation action against the honourable Member. The honourable Member further advised the Chair that he then received a second letter in late March from another firm acting for Hurtig Publishers Ltd., stating that their client intended to bring an action against him pursuant to the Defamation Act. There is of course in each province an act which sets out the law of defamation in that province.

The honourable Member expressed the view in this Chamber that both letters were based on the information he had received in reply to his question on the Order Paper and that these two letters advising him of the intention to proceed with the lawsuit were, and I quote the honourable Member:

…a deliberate attempt to intimidate me from seeking further information with regard to grants given by the government to Mel Hurtig or Hurtig Publishers.

I understand that the honourable Member has now received a copy of the Statement of Claim in the action referred to, and of course a copy has also been obtained by the Chair.

In his remarks the honourable Member for Athabasca argued that his “privilege to speak freely without fear” in the House had been violated by the action brought against him which “goes to the very heart of a Member’s obligation, a Member’s right, a Member’s privilege to ask questions in a free and unfettered way in the House of Commons”.

The position as put forward by the honourable Member for Athabasca was supported by the honourable Member for Peace River who stressed that freedom of speech is a fundamental privilege and that, in his words, “honourable Members are also to be free from intimidation or threats that would try in some way to direct their actions”.

In the same vein the honourable Member for Ottawa—Vanier (Mr. Jean-Robert Gaulthier) reiterated the principle that, as he said, “nothing can impede the privilege of a Member to ask questions in the House, either by written deposition or orally during Question Period”. The honourable Member for Ottawa—Vanier quoted from Beauchesne Fifth Edition, Citation 55, which reads in part as follows:

The privilege of freedom of speech is both the least questioned and the most fundamental right of the Member of Parliament on the floor of the House and in committee. It is primarily guaranteed in the British Bill of Rights…

There can be no question as to the relevance and appropriateness of the principles invoked by honourable Members in their interventions. Indeed, as all honourable Members very well know, the privilege of freedom of speech is so fundamental that this House could not discharge its constitutional functions without it.

British parliamentary institutions, from which our own system was derived, were afforded the protection of the Bill of Rights three centuries ago. It is interesting that the Commonwealth Parliamentary Association is presently celebrating the three hundredth anniversary of the Bill of Rights at Westminster.

Article 9 of that act clearly states:

The freedom of speech and debates, or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.

Careful reading of that provision raises at least one particular concern in relation to the matter now before us. Essentially the privilege of freedom of speech protects “proceedings in Parliament”. The question to be answered then is, what constitutes proceedings in Parliament?

This phrase has never been exactly and completely defined by statute, by the courts of law, or by the House itself. In its narrow sense the expression is used to denote the formal transaction of business in the House or in committee. Traditionally it covers both the asking of a question and the giving of a written notice of such question, and also includes everything said or done by a Member in the exercise of his or her functions as a member of the House, either in the House or in any committee of the House in the transaction of parliamentary business. I refer to May Twentieth Edition, page 92.

In its wider sense “proceedings in Parliament” is used to include matters connected with or ancillary to the formal transaction of business. Obviously, written questions placed on the Order Paper are to be considered part of proceedings in Parliament. In effect, they are time-saving substitutes for speaking in the House. As stated in May Twentieth Edition, page 92:

While taking part in the proceedings of a House, Members, officers and strangers are protected by the same sanction as that by which freedom of speech is protected, namely, that they cannot be called to account for their actions by any authority other than the House itself.

I emphasize again, “while taking part in the proceedings of a House”. The insertion of the term “proceedings” in the Bill of Rights of 1688 gave statutory authority to the privilege of freedom of speech, which was later clearly recognized in the law case of Dillon v. Balfour reported in 1887, [Volume 20, The Law Reports (Ireland)] at page 600. The judgment stated that words spoken by a Member of Parliament in the House of Commons are absolutely privileged and the court has no jurisdiction to entertain an action in respect of them. I cite Halsbury’s Laws of England, Fourth Edition, Volume 28, page 52 as follows:

When Parliament is sitting and statements are made in either House, the member making them is not amenable to the civil or criminal law, even if the statements are false to his knowledge, and a conspiracy to make such statements would not make the members guilty of it amenable to the criminal law.

While a Member of the House receives absolute protection and is free to speak as he sees fit during a debate in Parliament, subject only to the rules of the House, it is not so when the member chooses either to speak or to publish his speech outside the House. The same privilege does not extend to statements made outside a “proceeding in Parliament” even if it is a reproduction of what was said in the House.

In the First Edition of his book published in 1844, Erskine May expressed that reservation as follows:

…a member may state whatever he thinks fit in debate, however offensive it may be to the feelings, or injurious to the character of individuals, and he is protected by his privilege from any action for libel; but if he should proceed to publish his speech, his printed statement will be regarded as a separate publication, unconnected with any proceedings in Parliament.^[2]

The same principle is reiterated in the Twentieth Edition at page 202 where it states:

…when a matter is a proceeding of the House, beginning and terminating within its own walls, it is obviously outside the jurisdiction of the courts…But if a proceeding of the House issues in action affecting the rights of persons exercisable outside the House (as e.g., in the publication of a part of the proceedings of the House... ) then the person who published…will be within the jurisdiction of the courts.

That does not mean, of course, that the person who published may, given the circumstances, be subject to condemnation by the courts. It only means that if published outside, that publication would be subject to the courts but all the defences which would be available to any other citizen would, of course, be available to the Member of Parliament if published outside this place. To make it very clear, when I use the word “publish” I mean either to publish in print or to express verbally to others by way of television, radio, or otherwise.

To expand on this further, in [the First Edition of] Parliamentary Privilege in Canada, Joseph Maingot states on page 38:

…a Member could not come to Parliament for protection if he was sued for having published to the world. One could not question what the member said in the House but publication outside the House was another matter. The protection afforded the member speaking in the House is, in law, spoken on an occasion of absolute legal privilege, that is to say, spoken with impunity to the outside world, but he publishes outside the House at his peril. Parliament protects him when he speaks in Parliament, but when he speaks outside, or publishes outside what he says inside Parliament, Parliament offers no protection; only the common law does, if it is offered at all.

In the case at hand there is no indication that the legal proceedings commenced against the honourable Member for Athabasca are based on a proceeding in Parliament. From a close reading of the statement of claim filed in the Court of Queen’s Bench of Alberta on April 26, 1988, it would appear that these proceedings relate to a newspaper article published in The Edmonton Sun and to the comments attributed in that article to the honourable Member for Athabasca and to written information allegedly provided to employees of the Toronto Sun by the honourable Member.

As this legal proceeding appears in no way to be based upon “proceedings in Parliament”, but rather upon events which transpired outside of Parliament, the Chair cannot find, after long and very careful consideration, that the honourable Member’s privilege has been breached.

I want to add some comment to this because it is important. Nothing in this ruling should be taken to indicate whether the honourable Member for Athabasca has or has not a defence to the defamation action taken against him. This ruling is confined to whether the honourable Member’s privileges as a Member of Parliament have been violated.

There is, of course, under the law of defamation outside this place, a defence of privilege. It is important to understand the distinction and to understand that my ruling in no way intrudes into the law of defamation or into the present action concerning the honourable Member and others, and in no way affects whatever defences are available to that honourable Member outside this place.

I want to apologize to the honourable Member for Athabasca for being so long in returning to this House with this ruling. I have to say that the ruling gave the Chair a great deal of difficulty. I have decided it, I think correctly, but not without a great deal of concern. I thank honourable Members.

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1988-07-18