Parliamentary Privilege / Rights of Members

Conflict of Interest Code: minister offended by remarks alleging breach of code

May 5, 1987

Debates, pp. 5765-6

During Oral Questions on April 13, 1987, Mr. Michael Cassidy (Ottawa Centre) directed certain questions to the Government on whether the Minister of State for Fitness and Amateur Sport (Hon. Otto Jelinek) had violated the Conflict of Interest Code as it applies to ministers by his handling of the sale of an interest in a small investment property in downtown Ottawa.

On April 14, 1987, Mt. Jelinek rose on a question of privilege arising out of the comments made by Mr. Cassidy. The Minister characterized the comments of the Member as “distorted information, half-truths and unsubstantiated innuendo” designed to “smear” his reputation. He noted that “this information and all other pertinent information [had] always been publicly available.”

After the Minister’s comments, Mr. Cassidy claimed that he believed the questions he had asked were legitimate in relation to conflict of interest and code of conduct guidelines for Ministers. Mr. Cassidy stated that while in his questions there had been no suggestion of illegality in the actions of the Minister, he felt there was a “substantial case” that the minister was in breach of the Code of Conduct and he contended that if the actions taken by the Minister in this transaction were permissible under the Code of Conduct then changes in the code should be made. At a certain point, the Speaker intervened once again to indicate that the matter to be decided was whether the Member, through his questions, had meant to accuse the Minister of any wrongdoing. Mr. Cassidy responded that he was seeking information on the matter because he saw it as an important issue of public policy. Other Members also intervened on the matter.^[1]

The Speaker indicated that he would carefully consider the arguments advanced. He returned to the House on May 5, 1987, to deliver the ruling reproduced in extenso below.

Decision of the Chair

The Speaker: I remind the House that a few days ago a question of privilege was raised in the House by the honourable Minister of State for Fitness and Amateur Sport respecting questions which were put by the honourable Member for Ottawa Centre.

I am now prepared to rule on the question of privilege raised on April 14 by the Minister of State for Fitness and Amateur Sport. In my opinion, the question raised affects the very nature of Members’ rights and immunity.

I should say that we in this House are protected by absolute privilege in respect of everything we say on the floor of this chamber. This is a difficult thing for the public to understand, and this is why I want to explain it carefully.

There are only two kinds of institutions in this land to which this awesome and far-reaching privilege extends—Parliament and the legislatures on the one hand and the courts on the other. These institutions enjoy the protection of absolute privilege because of the overriding need to ensure that the truth can be told, that any questions can be asked, and that debate can be free and uninhibited. Absolute privilege ensures that those performing their legitimate functions in these vital institutions of Government shall not be exposed to the possibility of legal action. This is necessary in the national interest and has been considered necessary under our democratic system for hundreds of years. It allows our judicial system and our parliamentary system to operate free of any hindrance.

Such a privilege confers grave responsibilities on those who are protected by it. By that I mean specifically the honourable Members of this place. The consequences of its abuse can be terrible. Innocent people could be slandered with no redress available to them. Reputations could be destroyed on the basis of false rumour. All honourable Members are conscious of the care they must exercise in availing themselves of their absolute privilege of freedom of speech. That is why there are long-standing practices and traditions observed in this House to counter the potential for abuse.

The privileges of a Member are violated by any action which might impede him or her in the fulfilment of his or her duties and functions. It is obvious that the unjust damaging of a reputation could constitute such an impediment. The normal course of a Member who felt himself or herself to be defamed would be the same as that available to any other citizen, recourse to the courts under the laws of defamation with the possibility of damages to substitute for the harm that might be done. However, should the alleged defamation take place on the floor of the House, this recourse is not available.

Honourable Members will remember that I commented some time ago that originally when the absolute privilege was extended to Members of Parliament, as applied to the British House of Commons in a different age when things said within that House would probably not be heard throughout the length and breadth of the kingdom, circumstances were very different. Today, as a consequence of television and electronic broadcasting, anything said in this place is said on the street right across this country, and that has to be borne in mind. In these circumstances a Member can be expected to claim a violation of his or her privileges and to argue the case very strongly. I point out that if a statement is made here or an innuendo is passed in here no Member can go to court for correction or damages, even though that statement is said outside this place the moment it is uttered here.

The Chair has a serious responsibility in such cases. The Chair of course does not resolve the question, only the House can do that. However, on the basis of the evidence available, the Chair must determine whether the question has priority over all other business. When the Chair so rules, a motion is moved and usually the question is referred to the Standing Committee on Elections, Privileges and Procedure. The Chair has a crucial role to play in this respect.

In the case before us certain questions were asked which, in the view of the honourable Minister, conveyed grave implications against his integrity and were, therefore, damaging to his reputation. That is the position which the Minister took. I have carefully examined the questions, together with the interventions which took place following the honourable Minister’s statement, and I confess to be very troubled as a result.

Perhaps, as has been argued, the questions did not directly violate the practice of this House concerning the making of charges and the levelling of accusations. I remind honourable Members that I listened carefully to the questions and I did allow them. Nevertheless, I am sure all honourable Members can appreciate the honourable Minister ‘s concern.

The House heard the Minister’s statement. It is a long-standing tradition of this House that an honourable Member’s word is accepted without question. Given all the circumstances in this case, I am sure that the Minister’s capacity to function as a Minister and a Member of this House is in no way impaired. I point out to honourable Members that this is the real issue of privilege, although there are obviously other matters that surround the particular facts in this case, but the Chair has to look very carefully at the exact point of privilege.

With regard to the questions of which the Minister complained, legitimate though they may have been, I have already confessed to being troubled by their content. I would urge all honourable Members to take the greatest care when framing such questions. Questions concerning conflict of interest guidelines are, of course, legitimate. Members are entitled to use facts they have been able to obtain and verify as the basis for such questions.

I would remind the House, however, that a direct charge or accusation against a Member may be made only by way of a substantive motion of which the usual notice is required. This is another long-standing practice designed to avoid judgment by innuendo and to prevent the overextended use of our absolute privilege of freedom of speech. One of my distinguished predecessors, Mr. Speaker Michener, in a ruling of June 19, 1959, which has frequently been quoted in this House stated that this is a practice demanded by simple justice.^[2]

I find therefore, again under the circumstances and after the most serious consideration of the evidence before me, that this matter should not take precedence over all other business. I would urge honourable Members to take great care in this Chamber with respect to the honour of each other.

On May 12, 1987, at the beginning of the day’s proceedings, Mr. Cassidy asked leave to make a statement on this matter. The Member proceeded to place on record further information regarding the matter and explained that when he examined Mr. Jelinek’s file, a key piece of information had been missing, namely a letter from the Assistant Deputy Registrar General offering written assurance that the transaction had been conducted in compliance with the code of conduct. Mr. Cassidy stated that he wished “to acknowledge that in connection with the Ottawa transaction, the Minister of State for Fitness and Amateur Sport did act honourably and did ensure that he was in compliance with the Code of Conduct for Ministers as it now stands.” The Minister thanked the Member for his statement. The Speaker thanked both members for their conduct in this matter.^[3]

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1987-05-05