Parliamentary Privilege / Rights of Members

Freedom from obstruction, interference, intimidation and molestation: violation of caucus confidentiality; prima facie

March 25, 2004

Debates, pp. 1711-2

On March 11, 2004, John O’Reilly (Haliburton–Victoria–Brock) rose on a question of privilege with respect to the disclosure to the media of a recording, of uncertain provenance, of the confidential proceedings of a meeting of the Ontario Regional Liberal Caucus. Mr. O’Reilly claimed that his right to privacy in the Parliamentary Precinct pursuant to Section 193 of the Criminal Code (interception of a private communication by means of an electromagnetic device) had been violated. After hearing from another Member, the Speaker, noting the gravity of the allegations raised by Mr. O’Reilly, stated that he had ordered an inquiry into the leak of the proceedings and was continuing to examine the matter.^[1]

The Speaker delivered his ruling on March 25, 2004. He reported that room set-up staff had inadvertently left the broadcasting equipment in the room in a lock-in rather than lock-out mode which could allow for both broadcasting and recording of the meeting, thus resulting in the unauthorized broadcast of the proceedings. With respect to whether the dissemination of the confidential information breached the Criminal Code, the Speaker indicated that it was not for him to determine, but Members were free to pursue that dimension elsewhere. The Speaker emphasized that his primary concern was not the leak of this information, but the publication of leaked information from a private meeting. He explained that the concept of caucus confidentiality is central to the operations of the House and to the work of Members. The decision to publish information leaked from a caucus meeting is an example of a contemptuous attitude to the privacy of Members, and that privacy is something upon which all Members depend on to carry out their duties. Stating that the situation could not go unanswered, he ruled that there was a prima facie breach of privilege and invited Mr. O’Reilly to move the appropriate motion.

Decision of the Chair

The Speaker: I am also prepared to rule on the question of privilege raised by the hon. Members for Haliburton–Victoria–Brock and Scarborough–Rouge River on March 11, concerning the recording, disclosure to the media and subsequent publication of the confidential proceedings of a meeting of the Ontario Liberal Caucus which took place in room [253-D]^[2] of the Centre Block on February 25.

I would like to thank the hon. Members for Haliburton–Victoria–Brock and Scarborough–Rouge River for having raised this very serious matter.

In his submission the hon. Member for Haliburton–Victoria–Brock deplored the fact that Sun Media had published a tape of a confidential meeting. He argued that this action was not only a breach of his privacy and that of his constituents, it was also an event that adversely affected his ability to speak out in private on behalf of his constituents.

Noting that the facilities used for the meeting he attended are multi-purpose and often used for many different types of confidential meetings by Members of all parties, the hon. Member for Haliburton–Victoria–Brock asked the Speaker to look into the matter to ensure the protection of his rights as a Member.

In his remarks, the hon. Member for Scarborough–Rouge River asked the Chair to consider three aspects of this matter. First, the hon. Member argued that the disclosure of the February 25 meeting by the Ottawa Sun newspaper constituted a breach of privilege. Second, he submitted that an offence under the Criminal Code may have been committed. Finally, he brought to the attention of the Chair the relationship between the conduct of the media in and around Parliament, the special privileges granted them by the House, and the media’s violation of House rules about the confidentiality of private meetings.

The hon. Member for Scarborough–Rouge River concluded by indicating that he would be prepared to move the appropriate motion should there be a finding of a prima facie breach of privilege.

As I indicated on March 11, the Chair takes such matters very seriously. Mr. Speaker Bosley faced a similar situation on January 30, 1986, involving alleged electronic eavesdropping on a caucus meeting. Just as Mr. Speaker Bosley stated on that occasion, and I refer hon. Members to the Debates of January 30, 1986, at page 10336, I can assure hon. Members that whenever the Speaker receives such complaints, they are acted on as quickly as is humanly possible.

In the current case, even before the hon. Members raised the matter in the House, I had asked for a full report on the leak of this meeting. That report has revealed that there was indeed a human error made. Specifically, during their verification of equipment prior to the meeting, staff responsible for the room set-up inadvertently left the equipment in lock-in rather than lock-out mode. This mode makes it possible to broadcast the proceedings in a room and for anyone receiving the broadcast on an FM receiver to record the broadcast.

It is important to note, however, that in order for the broadcast to take place, someone had to activate the broadcast button on the console in the meeting room. How that function came to be activated and by whose hand remains unclear. However, I can assure the House that I have asked my officials to take all reasonable administrative precautions to guard against this situation being repeated.

That being said, in certain circumstances, the Chair might consider the matter to end there. Were this case simply to involve a complaint about House services that could be traced back directly to human error, then it would not involve a prima facie question of privilege. However, the situation before us is not so simple.

True, human error by staff has been identified. But that error does not explain the eventual activation of the broadcast function that made the leak possible. As hon. Members have stated, this might have involved malicious intent by a person or persons unknown and an offence under the Criminal Code may have been committed. That is not for your Speaker to determine, though it is an allegation that Members may wish to pursue elsewhere.

The crux of the matter for the Chair is not the leak of this information, but the publication of leaked information that was manifestly from a private meeting. The concept of caucus confidentiality is central to the operations of the House and to the work of all hon. Members. The decision to publish information leaked from a caucus meeting is, in my view, an egregious example of a cavalier and contemptuous attitude to the privacy of all Members and that privacy is something upon which all Members depend to do their work. It is a situation in my view that cannot go unanswered.

Accordingly, having examined the situation in the matter of the publication of a leak from the caucus meeting of February 25, I find that there is a prima facie breach of privilege and I am prepared to entertain a motion at this time.

Mr. O’Reilly moved that the matter be referred to the Standing Committee on Procedure and House Affairs and the motion was agreed to.^[3] On April 26, 2004, the Standing Committee presented its Twenty-Second Report in which it concluded that the matter had been adequately handled by the House Administration.^[4] (Editor’s Note: The Report was not concurred in.)