Parliamentary Privilege / Rights of the House

Contempt of the House: disclosure by a Minister of information regarding a bill prior to its introduction in the House; prima facie

March 19, 2001

Debates, pp. 1839-40

On March 14, 2001, following the introduction by Anne McLellan (Minister of Justice and Attorney General of Canada) of Bill C-15, Criminal Law Amendment Act, 2001, Vic Toews (Provencher) rose on a question of privilege with respect to the disclosure of information about the Bill in a Department of Justice briefing to the media prior to its introduction in the House. Noting that Members and their staff had been denied access to the briefing, Mr. Toews argued that they did not have the information they needed to respond to media inquiries about the Bill. He also reminded the House that in our system, the executive is responsible to Parliament, and not to the media. Thus, he maintained, the Minister and the Department of Justice were both in contempt of Parliament as they had brought the authority and dignity of the House into question.^[1] Don Boudria (Minister of State and Leader of the Government in the House of Commons) replied that the briefing given to the media was under embargo and that the media did not receive a copy of the Bill prior to its introduction in the House. After hearing from other Members, the Speaker took the matter under advisement.^[2]

On March 19, 2001, the Speaker delivered his ruling. He stated that the use of media embargoes and lock-ups had long played a role in the way parliamentary business was conducted and reminded Members that previous Speakers had consistently held that it was not a breach of privilege to exclude Members from lock-ups. He noted, however, that with respect to material to be placed before Parliament, the House should take precedence. He added that once a bill had been placed on notice, its confidentiality was necessary, both so that Members themselves should be well informed, and because of the pre-eminent role which the House plays and must play in the legislative affairs of the nation. He declared that, in his view, it was clear that confidential information concerning Bill C-15, although denied to Members, had been given to members of the media without any effective measures to secure the rights of the House, even though no documents were given out at the briefing. Members having been denied information that they needed to do their work, the Speaker ruled that this constituted a prima facie contempt of the House and invited the Mr. Toews to move the appropriate motion.

Decision of the Chair

The Speaker: I am now ready to rule on the question of privilege raised by the hon. Member for Provencher on March 14, 2001, regarding a briefing the Department of Justice held on a bill on notice that had not yet been introduced in the House.

The bill has now received first reading as Bill C-15, An Act to amend the Criminal Code and to amend other Acts.

I wish to thank the hon. Government House Leader, the hon. Member for Berthier–Montcalm, the hon. Member for Winnipeg–Transcona, the hon. Member for Pictou–Antigonish–Guysborough, the hon. Member for Yorkton–Melville, and the hon. Opposition House Leader for their interventions.

Let me first summarize the events that led up to this question of privilege being raised. From the interventions of Members it appears that the Department of Justice sent out a media advisory notifying recipients that there would be a technical briefing given by justice officials at 11:45 a.m. on Wednesday, March 14, with regard to the omnibus bill, now Bill C-15, that was to be introduced in the House by the hon. Minister of Justice that afternoon.

According to the hon. Member for Provencher, Members of Parliament and their staff were denied access to the briefing. The hon. Member for Yorkton–Melville added that while his assistant was denied access to the briefing, the assistant of a Government Member was granted entry. In any event, there is no disputing that the invitation to this so-called technical briefing went out as a media advisory and was designed for members of the media.

The hon. Member for Provencher indicated that following the briefing media representatives began phoning his office and asking for his reaction to the Bill, a situation he found embarrassing, not only for himself and other Members of the opposition, but also for the House of Commons as a whole since they had not seen the Bill and were not privy to its contents.

The hon. Government House Leader confirmed that opposition critics were given a courtesy copy of Bill C-15 about an hour and a quarter before the Bill’s introduction.

The Minister explained that during the briefing, the media had not received actual copies of the Bill or any other documentation. He went on to indicate that the briefing itself was under embargo until the Bill was introduced, a fact confirmed by the copy of the original media advisory that the Chair has obtained.

The Member for Provencher, as well as the other opposition Members who participated in the discussion, argued that by not providing information to Members of Parliament and by refusing to allow Members to participate in a briefing where the media were present, the Government, and in particular the Department of Justice, showed contempt for the House of Commons and its Members.

As I see it, there are two issues here: the matter of the embargoed briefing to the media and the issue of Members’ access to information required to fulfil their duties.

As Members know, the use of media embargoes, as well as the use of lock-ups, have long played a role in the way parliamentary business is conducted. For example, it has been our practice to permit briefings in lock-ups prior to the tabling of reports by the Auditor General. Similarly, and perhaps more on point, is the lock-up held on the day of a budget presentation. Two features of these lock-ups are that Members are invited to be present and members of the media are detained until the event in question has occurred; that is the Auditor General’s report tabled or the budget speech begun. These are the features one might argue that have made these lock-ups so successful and so useful to the conduct of parliamentary business.

It must, however, be remembered that when the different arrangements have been made for early briefings, previous Speakers have consistently held that it is not a breach of privilege to exclude Members from lock-ups. I refer the House, for example, to the ruling of Speaker Jerome, in Debates, November 27, 1978, pp. 1518-9, and the ruling of Speaker Sauvé, in Debates, February 25, 1981, p. 7670.

The House recognizes that when complex or technical documents are to be presented in this Chamber, media briefings are highly useful. They ensure that the public receives information that is both timely and accurate concerning business before the House.

In preparing legislation, the Government may wish to hold extensive consultations and such consultations may be held entirely at the Government’s discretion. However, with respect to material to be placed before Parliament, the House must take precedence. Once a bill has been placed on notice, whether it has been presented in a different form to a different session of Parliament has no bearing and the bill is considered a new matter. The convention of the confidentiality of bills on notice is necessary, not only so that Members themselves may be well informed, but also because of the pre-eminent rule which the House plays and must play in the legislative affairs of the nation.

Thus, the issue of denying to Members information that they need to do their work has been the key consideration for the Chair in reviewing this particular question of privilege. To deny to Members information concerning business that is about to come before the House, while at the same time providing such information to media that will likely be questioning Members about that business, is a situation that the Chair cannot condone.

Even if no documents were given out at the briefing, as the hon. Government House Leader has assured the House, it is undisputed that confidential information about the Bill was provided. While it may have been the intention to embargo that information as an essential safeguard of the rights of this House, the evidence would indicate that no effective embargo occurred.

In this case it is clear that information concerning legislation, although denied to Members, was given to members of the media without any effective measures to secure the rights of the House.

I have concluded that this constitutes a prima facie contempt of the House and I invite the hon. Member for Provencher to move a motion.

Mr. Toews moved that the matter be referred to the Standing Committee on Procedure and House Affairs.^[3] After debate, the question was put on the motion and it was agreed to.^[4]

On May 9, 2001, Derek Lee (Parliamentary Secretary to the Leader of the Government in the House of Commons) presented the Fourteenth Report of the Standing Committee on Procedure and House Affairs on the above question of privilege. The Report recommended that there be no sanctions with respect to the breach of privilege, but that steps be taken to avoid such breaches of privilege in the future. On June 5, 2001, Peter MacKay (Pictou–Antigonish–Guysborough) moved that the Report be concurred in. Debate arose thereon, whereupon, Mr. Lee moved that the House proceed to Orders of the Day. The question was put on that motion, and it was agreed to on a recorded division, thus superseding the motion to concur in the Report, which was accordingly dropped from the Order paper.^[5]

On October 15, 2001, John Reynolds (West Vancouver–Sunshine Coast) rose on a similar question of privilege with regard to the premature disclosure of a bill prior to its introduction. On the same date, the Speaker found it prima facie, and the House immediately agreed to refer the matter to the Standing Committee on Procedure and House of Affairs.^[6] The Committee reported back to the House on November 29, 2001.^[7] No further action was taken.