The Daily Program / Statements by Members

Right of Members to criticize a decision rendered by a court

December 1, 1986

Debates, pp. 1636, 1651-2

On December 1, 1986, during the period reserved for Statements by Members, Mr. Jim Fulton (Skeena) referred to the sentencing of Mr. Peter Fenwick, the Leader of Newfoundland’s New Democratic Party, to a jail term with respect to his violation of a Newfoundland Supreme Court injunction against picketing during an illegal strike of provincial employees in the Province of Newfoundland. Mr. Fulton began to argue that this sentence was unjust. The Speaker interrupted the Member and gave reasons for his decision.^[1] Later during the same sitting, Mr. Fulton and other Members sought clarification of the Speaker’s decision.^[2] The Speaker’s first intervention together with the substantive part of his clarifications are reproduced below.

Decision of the Chair

The Speaker: …it is often the obligation of Members of Parliament to criticize a law. However, Members also realize it is not their place to castigate a court or judge or the decision rendered under a law…

The honourable Member raises a matter, of course, which the Chair views as one of concern. The difficulty that the Chair is in in this case, and in others, is that the honourable Member was making a statement and that the Chair is not always able to know exactly what will come in a statement. The Chair is concerned about the distinction between honourable Members being critical of the law and cognizant that the Chair has an obligation—and it is a tradition—to constrain members whose comments may in fact be an attack or a criticism of a judgment exercised by a court. That is the dilemma that all of us as honourable Members have to find our way through.

As I think I said to the honourable Member for Burnaby (Mr. Svend Robinson) some days ago, there is a distinction between criticism of the judge and a court and criticism of the law under which that judge or court may be mandated to act.^[3]

The other difficulty is that the honourable Member is really now into an explanation of why the honourable Member, and no doubt others, as has been reported—and the Chair is cognizant of that—may feel that a sentence meted out by a court under particular circumstances was not appropriate. The difficulty here is that the court is presumed to have all of the relevant information upon which it acts. All of that information is not here before us in this Chamber which, as some people have said and which has been historically considered, is the highest court of the land. As a consequence, it puts judges and courts in a very difficult position indeed if honourable Members are in effect second-guessing the judgment of that court. I know that the honourable Member did not intend to do that. However, I also know and take cognizance of the fact that the honourable Member is not happy with what happened. That of course is the honourable Member’s right. However, the Chair feels in this case that perhaps it is enough to accept the intervention of the honourable Member, and I made it very clear to the honourable Member that I would hear him out at this time.

I would ask all honourable Members to bear with the Chair in this difficult distinction between the undoubted right of Members of Parliament to criticize laws and the right that those who have to administer the laws not be subjected to attack for exercising what they are in fact mandated to do. I ask the honourable Member to accept the sincerity of the Chair in this matter. I have taken note of it. I shall be, as I try to be, very careful before I interrupt a statement of any honourable Member, but there are times that the Chair can be in some difficulty. In this respect, if an honourable Member has a statement which he or she wishes to make which may come close to giving the Chair some difficulty, then perhaps the honourable Member could exercise greater care indeed…

I think the response of the Chair is that there may be appropriate cases by notice and motion, or by other procedures, whereby such a procedure or such a criticism may be effected. Clearly, the Chair has to say that it is not the place to do it in Statements by Members. As I say, I am not in anyway suggesting to Members that they should be limited in criticizing a law. However, I think honourable Members can see the difficulty that the Chair is in because there are only a relatively few seconds for the Chair to determine whether the statement is within the rules or outside the rules…

The Chair is not ruling that there may never be a circumstance when a sentence or some other thing connected with a court ought to be criticized. The Chair is saying that during 60-second statements, honourable Members would, I hope, be very careful not to trespass against the admonition which is traditional and historical and is contained in Citation 321 of Beauchesne, which reads:

All references to judges and courts of justice of the nature of personal attack and censure have always been considered unparliamentary, and the Speaker has always treated them as breaches of order.^[4]

The honourable Member will know that the Chair did not treat the remarks of the honourable Member for Skeena as being any serious breach of order at all, but the Chair is drawing to the attention of all honourable Members the difficulty the Chair is in in these cases…

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1986-12-01