Rules of Debate / Miscellaneous

March 8, 1990

Debates, pp. 9006-9

On March 5, 1990, Mr. Nelson Riis (Kamloops) rose on a point of order to ask the Speaker to consider whether the Budget debate should be allowed to continue and whether the House should suspend any proceedings in relation to a bill on notice based on the Government's budget policy. He raised that question given the action taken by the Government of British Columbia to challenge in the courts the Federal Government's decision included in the Budget to cap its contribution to the Canada Assistance Plan. He argued that the adoption of the budget motion and the introduction of the bill then on the Notice Paper would prejudice the appeal. Mr. Riis was of the opinion that the reference of a bill to the Supreme Court withdraws the bill temporarily from the jurisdiction of Parliament and renders the matter Sub Judice. Other Members intervened on the matter.

The Speaker noted that the Sub Judice convention had not been as rigorously applied in civil matters as in criminal matters and that he would examine closely the arguments presented by Mr. Riis before reporting back to the House. In the meantime, debate would continue on the budget motion.^[1] On March 8, 1990, the Speaker returned to the House with a statement reproduced in extenso below.

Decision of the Chair

Mr. Speaker: On Monday, March 5, 1990, the honourable Member for Kamloops rose on a point of order to suggest that the debate on the budget be suspended and that the Chair review the Government bill currently on notice entitled ''An Act to amend certain statutes to enable restraint of government expenditures", and determine whether or not the House should proceed with that bill at this time.

In his submission the honourable Member noted that the Government of British Columbia has approached the Court of Appeal to ask for a ruling on the legitimacy of one of the components of the budget, namely proposed changes to the Canada Assistance Plan Act and the responsibility of the Government of Canada under its terms.

He also noted that historically the House has by the Sub Judice convention restrained itself from discussing questions which are before the courts when such a discussion would prejudice the outcome of those proceedings.

In his presentation the honourable House Leader for the New Democratic Party made reference to Beauchesne Sixth Edition, Citation 508(4) which states:

(4) The reference of a bill to the Supreme Court of Canada withdraws that bill temporarily from the jurisdiction of Parliament.         The question cannot be before two public bodies at the same time.

He also referred to the ruling upon which this citation is based.

As I indicated on Monday, I have given careful consideration to this reference, the ruling and the proceedings on which this citation is based, that is the citation which was given to me as the basis of the argument put forward by the honourable House Leader of the New Democratic Party. I wish to speak to this in some detail and I will return to it in a few moments.

I would, however, like to thank the honourable Member for his submission. As well, I would like to thank the honourable Government House Leader (Hon. Harvie Andre) and the honourable Member for   Ottawa—Vanier (Mr. Jean-Robert Gauthier) for their comments. All were helpful to the Chair.

I would first like to make a few remarks concerning the Sub Judice convention and the right of the House to legislate. Then I will deal with the Citation in Beauchesne.

It is accepted practice that, in the interests of justice and fair play, certain restrictions should be placed on the freedom of Members of Parliament to make reference in the course of debate to Sub Judice matters and that such matters should not be the subject of motions or questions in the House. Though poorly defined, the interpretation of this convention is left to the Speaker. In Canada, the word "convention" is used as no "rule" exists to prevent Parliament from discussing a matter which is Sub Judice, that is "under the consideration of a judge or court". The acceptance of a restriction is a voluntary restraint on the part of Parliament to protect an accused person or other party to court action or judicial inquiry from suffering any prejudicial effect from public discussion of the issue. While certain precedents exist for the guidance of the Chair, no attempt has ever been made to codify the practice in Canada. Though the First Report to the House of the Special Committee on Rights and Immunities of Members, presented to the House on April 29, 1977, provides some guidance for the Chair, uncertainty still surrounds Canadian practice.

The purpose of the Sub Judice convention is twofold: to protect interested parties in a court proceeding and to maintain a separation and mutual respect between the legislative and judicial branches of government.

In Canada there are some situations in which the application of the Sub Judice convention has been fairly straight forward. All of the principal procedural authorities, including Erskine May, Bourinot and Beauchesne, agree that the convention does not apply to bills as the right of Parliament to legislate must not be limited.

This has been confirmed in the House by a ruling of October 4, 1971. In that ruling Speaker Lamoureux noted that no legal proceeding initiated in a court of law in Canada, be it by way of writ of mandamus or any other writ, should prevent the House of Commons or Parliament from continuing or even initiating the discussion of legislation.^[2]

In that same ruling he also pointed out that should the House take the view that the Sub Judice convention applied to bills, the whole legislative process might be stopped simply by the initiation of a writ or legal proceedings in one or other of the courts of Canada. This, he noted, would place Parliament in an intolerable situation.

Where criminal cases are concerned, the precedents are consistent in barring reference to such matters before judgment has been rendered and during any appeal. As I noted on Monday, I have had to deal with the Sub Judice convention with respect to criminal matters before, and I think that position is quite clear.

Our practices as regards civil cases are less certain, however. The Chair has warned on various occasions of the need for caution in referring to matters pending judicial decisions whatever the nature of the court.

However, on February 11, 1976, Speaker Jerome ruled that no restriction ought to exist on the right of any Member to put questions respecting any matter before the courts, particularly those relating to a civil matter, unless and until that matter is at least at trial.^[3] This view I reiterated in a ruling given on December 7, 1987.^[4]

As the debate on the budget is generally wide-ranging and touches upon all aspects of the Government's budgetary policy, Members are at liberty to debate or not debate whatever aspect of the motion they choose. Therefore I must rule that the Sub Judice convention does not apply in the present circumstances.

In his submission the honourable House Leader of the New Democratic Party made reference to Citation 508(4) of Beauchesne Sixth Edition which, as I noted a moment ago, states:

The reference of a bill to the Supreme Court of Canada withdraws that bill temporarily from the jurisdiction of Parliament…       The question cannot be before two public bodies at the same time.

I have to say to the House that having heard that in argument it immediately gave me great difficulty because there sits a statement which, at least on the surface, seems to be clear indeed and seems to be very much in favour of the proposition being put forward by the honourable House Leader. I must say that whatever side of the House one might be on on this question, a Citation like that in Beauchesne would I think completely justify the argument being presented to the Speaker.

This Citation is apparently based on a ruling by Speaker Fauteux given on April 12, 1948, at page 344 of the Journals. Citation 508(4) is a truncation of Citation 338(4) of Beauchesne Fifth Edition, which is itself a truncation of Citation 153 of the Fourth Edition. If Members are having some difficulty with this I assure them so does the Speaker. Truncation is a polite way of putting what could be put in other terms.

I now quote:

"The reference of a Bill to the Supreme Court of Canada withdraws that Bill temporarily from the jurisdiction of Parliament. On April 12, 1948, the Prime Minister [the Rt. Hon. William Lyon Mackenzie King] moved that a select committee be set up to consider, inter alia, what is the legal and constitutional situation in Canada with respect to human rights and fundamental freedoms. Mr. Diefenbaker moved in amendment that in order to assist the committee, the government submit immediately, to the Supreme Court of Canada such questions as are necessary to determine to what extent the preservation of the fundamental freedoms of religion, speech, press, assembly and the maintenance of constitutional safeguards of the individual are matters of federal jurisdiction. The Speaker said: This amendment actually proposes that the Supreme Court be asked to consider the same matter that the main motion proposes to refer to a select committee. It seems to me that both those propositions cannot be approved at the same time by the House. If the constitutional situation of human rights is submitted to the Supreme Court it thereby becomes Sub Judice and cannot be considered by the Committee until the Court has given its decision. The question cannot be before two public bodies at the same time. For this reason I feel bound to rule the amendment out of order".

Having reviewed Speaker Fauteux's original ruling and the matter under debate in 1948, I have concluded that there is a serious flaw in the Beauchesne Citation in the Fourth Edition which has been compounded in the Fifth and Sixth Editions. That of course refers to the word truncation which I mentioned earlier.

I do not feel that the Citation is at all applicable. As the case before the Speaker in 1948 dealt with a motion and not a bill, I would like to summarize the situation then and set the record straight as regards this Citation in Beauchesne.

On April 9, 1948, the House began debate on a motion to set up a special committee to consider the question of human rights and fundamental freedoms, and the manner in which those obligations accepted by all member states of the United Nations might best be implemented in Canada. This was the same motion as a resolution passed by the House in the previous session on Monday, May 26, 1947^[5] and was based on a report of that Committee which recommended that a Joint Committee be set up early in the next session to continue the study of this matter.

During debate on the night of April 9, 1948, Mr. John George Diefenbaker proposed an amendment to the motion that the Government immediately submit to the Supreme Court such questions as were necessary to determine to what extent the preservation of the fundamental freedoms of religion, speech, press, assembly and the maintenance of constitutional safeguards of the individual were matters of federal jurisdiction.^[6]

On Monday, April 12, 1948, debate on the motion and the proposed amendment resumed. The Hon. J.L. Ilsley, who was then Minister of Justice, rose on a point of order to challenge the procedural acceptability of the amendment of Mr. Diefenbaker, arguing that since the amendment did not add to the duties, functions or purposes of the Committee but directed the Government to perform a duty, it was a separate motion and not an amendment.

In addition, he also argued that the function of the Committee was to consider what the legal and constitutional situation was in Canada with respect to human rights.

The object of the amendment was to take this function away from the Committee and place it instead with the Supreme Court of Canada. If that reference were made to the Supreme Court, the matter would then become Sub Judice and the Committee would be unable to proceed during the time the matter was to be considered by the Supreme Court. The two proposals could not exist in the same resolution.

In his ruling, Speaker Fauteux accepted the arguments of the Minister of Justice, that the proposed amendment would ask the Supreme Court to consider the same matter that the main motion would refer to a Committee. He stated:

It seems to me that both those propositions cannot be approved at the same time by the House. If the constitutional situation of human rights is submitted to the Supreme Court, it thereby becomes Sub Judice and cannot be considered by the committee until the court has given its decision. The question cannot be before two public bodies at the same time. For this reason, I feel bound to rule the amendment out of order.

As we can see, the emphasis in Speaker Fauteux's ruling was that the amendment proposed by Mr. Diefenbaker was a distinct proposition which should have been dealt with by means of a separate motion and therefore was out of order. The implications in the Citation in Beauchesne Fourth, Fifth and Sixth Editions, which casts the problem in terms of the reference of a bill to the Supreme Court, implies that the House is prevented from dealing with legislation on any matter before the courts.

I have no quarrel with the argument that was put on the basis of the Citation. If I had been in the same position as those who had to consider the matter, I most certainly would have taken that Citation and used it as the basis of an argument.

However, this in my view is an extraneous commentary by Beauchesne. The wording of the Citation in the subsequent editions compounds the error. In addition, there is a clear contradiction between Citations 338(3) and 338(4) in the Fifth Edition and Citations 508(3) and 508(4) in the Sixth Edition. In the former citations in both editions it specifically states that the convention does not apply to bills. Citation 338(3) of the Fifth Edition, which is repeated in the Sixth Edition, is based upon the 1971 ruling of Speaker Lamoureux to which I have already referred.

Having examined the precedents carefully and having reviewed the Canadian practice on the Sub Judice convention, the Chair has concluded that there is no legitimate basis for it to intervene as the honourable Member has suggested.

However, I would like to thank all those Members who participated in this discussion, and in particular the honourable Member for Kamloops for raising this most interesting matter and allowing the Chair to clarify these issues. Again, as I have complimented the honourable Member in the past, the argument was succinct, to the point, and very cogent indeed.

I have given this matter a lot of very serious consideration and I hope the House is satisfied with my judgment.

The budget motion was adopted on March 8, 1990. The bill on notice dealing with the Canada Assistance Plan was Bill C-69, An Act to amend certain statutes to enable restraint of government expenditures. The bill was introduced on March 15, 1990, was passed by the House on June 12, 1990, and was passed by the Senate and received Royal Assent on February 1, 1991. In June 1990, the Appeal Court of British Columbia found in favour of the provincial government. The Federal Government appealed to the Supreme Court of Canada and on August 15, 1991, the Supreme Court ruled that the Federal Government had the right to implement its plan to control Federal Government spending by amending the Canada Assistance Plan.

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