Parliamentary Privilege / Rights of Members

Freedom of speech: sub judice convention; statements by a Member regarding another Member under criminal investigation

April 20, 2005

Debates, pp. 5334-5

On April 4, 2005, Don Boudria (Glengarry–Prescott–Russell) rose on a question of privilege arising from remarks made earlier that day during Oral Questions by Diane Ablonczy (Calgary–Nose Hill), about a Liberal Member allegedly being under criminal investigation.^[1] Mr. Boudria argued that when charges have been laid, the sub judice convention makes it inappropriate to discuss them in the House. He argued further that, by naming the party affiliation without naming any particular Member, she had, in effect, named everyone on the Government side, including the Speaker. He concluded that accusations of this nature should include names and be made outside the House, and that the Member should withdraw her comments. After Mrs. Ablonczy stated that a Globe and Mail article was the origin of her remarks, the Speaker took the matter under advisement.^[2]

The Speaker delivered his ruling on April 20, 2005. He cautioned Members about the possible injury that could occur by quoting in the House media reports about other Members, noting that the article did not refer to a criminal investigation of a Member, but only that allegations were being investigated. He added that the sub judice convention did not apply because no charges had been laid against the Member referred to by Mrs. Ablonczy and that parliamentary custom required Members not to impugn the character of other Members. He concluded that, as the ability of Liberal Members to carry out their duties had not been impaired in any way, he could not find a prima facie breach of privilege. However, the Speaker did invite the Standing Committee on Procedure and House Affairs to review the application of the sub judice convention.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on Monday, April 4, [2005]^[3], by the hon. Member for Glengarry–Prescott–Russell arising from a question by the hon. Member for Calgary–Nose Hill during that day’s Question Period in which the hon. Member made reference to a Liberal Member of the House being under criminal investigation.

I would like to thank the hon. Member for raising this matter. I would also like to thank the hon. Member for Calgary–Nose Hill for her intervention.

In presenting his case, the hon. Member for Glengarry–Prescott–Russell stated that during Question Period, when posing a supplementary question to the hon. Minister of Citizenship and Immigration about a matter involving possible abuses of the temporary resident permit system, the hon. Member for Calgary–Nose Hill mentioned that a Liberal Member had been under criminal investigation but without naming the Member. The hon. Member for Glengarry–Prescott–Russell felt this was inappropriate as it “cast a net on every single one of us on this side of the House of Commons” and asked that the hon. Member for Calgary–Nose Hill withdraw the reference she made in her question.

In reply, the hon. Member for Calgary–Nose Hill stated that her remarks were based on an article found in the Globe and Mail newspaper for March 31 and she quoted from it. I have myself read this press report and note that immediately following the text quoted by the hon. Member for Calgary–Nose Hill, another press report states that the named Liberal Member denied the allegations made against himself or herself and also states that the RCMP had carried out several interviews but had not talked to the Liberal Member in question nor had laid charges.

It seems to me significant that the reported police investigation did not even go as far as talking to the Member against whom the allegations had been made and, further to this, that no charges were laid. It is also important to note that the press report does not mention a “criminal” investigation of the Liberal Member, in the sense that the Liberal Member was suspected of committing a criminal act. Rather, the press report indicates only that allegations made against the Member were being investigated. It is possible that the allegations were of interest to the RCMP in relation to suspected criminal activities by persons other than the Member named.

For these reasons, I am concerned that all hon. Members be mindful of the injury that may be done by quoting in the House media reports about other Members. All Members of Parliament are hon. Members and are entitled to be treated with respect in this Chamber and to be given the benefit of the doubt regarding allegations of such a serious nature.

At first glance, the situation here seems to be one where the sub judice convention might apply and constrain Members from making the kind of comments made here. However, the difficulty in this matter is that it falls below the threshold for application of the sub judice convention by which Members are restrained from making any comments in this House relating to a matter that is before the courts because the convention only applies once charges have been laid. The reference by the hon. Member for Calgary–Nose Hill was to a criminal investigation, without any reference to charges being laid against the Liberal Member, and before any charges were laid. Furthermore, charges have not been laid since.

Members of Parliament as elected public figures are often subject to criticisms and comments in the media which, on occasion, rightly or wrongly reflect poorly on their actions, if not also their character. The usual rules about defamation do not apply, at least not to the same extent, in respect to Members of Parliament. We are expected to accept public criticism and unfavourable personal comment from time to time, however difficult this might be. This applies inside this Chamber as well. However, parliamentary custom expects Members not to impugn the character of other Members. The mention of a criminal investigation of a Liberal Member would seem to have this effect, though the hon. Member for Calgary–Nose Hill may not have intended this.

I cannot find that there is a prima facie breach of privilege in this case as I cannot see that the ability of the Liberal Members of Parliament to carry out their duties has been impaired. I would encourage all hon. Members, however, to respect the usual courtesies and practices of this House, and I would invite the Standing Committee on Procedure and House Affairs to review the application of the sub judice convention as to whether it should also apply when an investigation is alleged or reported before charges are laid, which is a little more work for the Committee.