Parliamentary Privilege / Rights of Members

Freedom of speech and right to vote: libel suit and recusal of a Member; prima facie

June 17, 2008

Debates, pp. 7072-4

On May 26, 2008, Derek Lee (Scarborough–Rouge River) rose on a question of privilege with regard to a report of the Conflict of Interest and Ethics Commissioner that Robert Thibault (West Nova) should not participate in debate or vote in the House on matters related to the Mulroney-Schreiber Airbus affair.^[1] The Ethics Commissioner contended that the fact that Mr. Thibault was named as a defendant in a libel suit was tantamount to having a private interest, and thus it constituted a liability under the Conflict of Interest Code for Members of the House of Commons. Mr. Lee claimed that the Commissioner’s extension of the meaning of the word liability to include the sort of contingent liability represented by being named a defendant in a libel suit was unreasonable, and could open the way to limiting the rights of Members through the simple act of filing a lawsuit. Mr. Lee argued that such a decision had breached Mr. Thibault’s privilege of freedom of speech, had infringed upon his right to participate as a Member without obstruction or interference, and was an unwarranted interpretation of the Conflict of Interest Code for Members of the House of Commons. Peter Van Loan (Leader of the Government in the House of Commons and Minister for Democratic Reform) argued that the Commissioner was simply applying the Conflict of Interest Code as established by the House and that the rights to vote and to freedom of speech were not absolute. After hearing from other Members, the Speaker took the matter under advisement.^[2]

On June 17, 2008, the Speaker delivered his ruling. He stated that, while the Government House Leader’s arguments were valid, it was his duty as Speaker to safeguard the very existence of Members’ privileges. The Speaker also made the point that there was no mechanism that provides the House with the opportunity to disagree with such a report. In this instance, a Code adopted by the House was being applied in a way that was clearly contrary to the original intentions of the House since this application meant that any Member could effectively be silenced by a libel suit, a situation that could potentially affect all Members. The Speaker ruled, accordingly, that there was a prima facie case of privilege and he invited Mr. Lee to move his motion.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised by the hon. Member for Scarborough–Rouge River on May 26, 2008, regarding the report of the Conflict of Interest and Ethics Commissioner in relation to the hon. Member for West Nova.

I would like to thank the hon. Member for Scarborough–Rouge River for having raised the matter and I would also like to thank the hon. Government House Leader, the hon. Member for Winnipeg Centre and the hon. Member for Mississauga South for their interventions.

In raising this question of privilege, the Member for Scarborough–Rouge River underlined the importance of the privileges of freedom of speech and the right to vote for Members, privileges that are of such fundamental significance that they are claimed explicitly by the Speaker at the beginning of each Parliament. It was with this in mind that he questioned the validity of the Conflict of Interest Code for Members being interpreted in such a way as to limit unduly the freedom of speech and right to vote in the House and in committee not only of the Member for West Nova but of all Members. This concern was echoed by the Members for Winnipeg Centre and Mississauga South.

The Member for Scarborough–Rouge River took issue with the Conflict of Interest and Ethics Commissioner’s contention that being a defendant in a libel suit was tantamount to having a private interest since this interpretation would open the way to limiting the rights of Members through the simple act of filing a lawsuit.

Specifically, he challenged the interpretation given by the Commissioner of the term liability as used in the Code, claiming that the Commissioner’s extension of the meaning of the word liability to include the sort of contingent liability represented by being named defendant in a libel suit was unreasonable.

In his remarks, the Government House Leader pointed out that the rights to free speech and to vote were not absolute and in support of this view, he cited a passage from page 26 of Maingot’s Parliamentary Privilege in Canada, wherein it is indicated clearly that there are limits to the privileges enjoyed by Members. He stated that the House itself established the Code and gave to the Ethics Commissioner the authority to interpret it.

Further, the Leader of the Government in the House of Commons argued that if Members feel that the Code requires amendment, this ought not to be accomplished under the guise of a question of privilege but rather through the Standing Committee on Procedure and House Affairs, whose mandate it is to review the Code.

It should be noted at the outset that no one is suggesting that the Conflict of Interest and Ethics Commissioner, in her consideration of the present case, did not recognize the importance of the rights and privileges of Members. Nor was any concern expressed that she had not exercised the highest standards of diligence or that she had not acted in good faith.

As Speaker, I am profoundly aware both of the importance of the particular rights and privileges which Members are accorded in order to allow them to carry out their functions and of the special responsibility that I have in that regard. My role in relation to privilege is very clear.

House of Commons Procedure and Practice contains several key passages which will be of interest to the House. First, at page 261, Marleau and Montpetit states that:

It is the responsibility of the Speaker to act as the guardian of the rights and privileges of Members and of the House as an institution.

Further, at page 262, it goes on to say that:

The duty of the Speaker is to ensure that the right of Members to free speech is protected and exercised to the fullest possible extent—

Then, at page 125 there is the following guidance to the Chair when it is deliberating on whether there are sufficient grounds to find a case of prima facie privilege:

—the Chair will take into account the extent to which the matter complained of infringed upon any Member’s ability to perform his or her parliamentary duties.

This brings me to the questions raised by the Government House Leader regarding the propriety of attempting to remedy the current situation via a question of privilege. The hon. Government House Leader is quite correct in pointing out that the Standing Committee on Procedure and House Affairs has a mandate to review and report on the Standing Orders and the Conflict of Interest Code. However, it must be pointed out that there are other paths available to the House to effect changes to the Standing Orders or to the Code and that the House has on occasion seen fit to take them. Ultimately the fundamental requirement for any change to our Standing Orders or by extension to the Conflict of Interest Code, which is an appendix to our Standing Orders, is that any such change must [be]^[3] agreed to by the House as a whole.

As House of Commons Procedure and Practice states at page 215:

Although the means by which the House reviews the Standing Orders vary greatly, the Standing Orders may be added to, changed or repealed only by a decision of the House, which is arrived at either by way of consensus or by a simple majority vote on a motion moved by any Member of the House.

The reference given for this passage is a ruling by Mr. Speaker Fraser in Debates, April 9, 1991, pp. 19236-7.

An example of this freedom each Member has may be found in the Order paper where there is at present a motion to amend the Standing Orders standing in the name of the hon. Member for Crowfoot.

The Chair notes, as additional information before the House, that in the case at hand no mechanism is in place that guarantees an opportunity for the House to disagree with a report such as the one at the centre of this question of privilege. Although there are provisions for a debate on concurrence in the report in the usual fashion, no deadline exists to bring such a motion, were it to be moved, to a vote. All that the Code provides for, in section 28(10), is for the automatic concurrence in such report after 30 sitting days after the day on which the report is tabled provided the question has not been disposed of earlier.

Let me turn now to the substance of this question of privilege, namely the impact of this report by the Commissioner on the ability of Members to carry out their parliamentary duties.

There is the suggestion, not entirely unfounded in my view, that unless steps are taken to clarify the notion of liability in the Code, the mere launching of a libel suit will now be sufficient to limit Members’ freedom of speech and their ability to vote.

It is this particular aspect of the situation which the Chair finds most problematic from a procedural point of view since, as was noted, the current case carries with it the very real potential of affecting every Member of the House.

I want to stress that as your Speaker I am not being asked to pass judgment on the decision of the Commissioner in this case. Rather, the Speaker is being asked, given the facts presented, to determine whether, on the face of it, the matter is sufficiently grave and of immediate consequence for Members to warrant consideration by the House on a priority basis.

I put it to the House that when the mere filing of a libel suit against a Member, whatever the ultimate disposition of the suit may be, has the effect of placing restrictions on the ability of that Member to speak and to vote in the House and in committee, it appears reasonable to conclude that the privileges of all Members are immediately placed in jeopardy.

These privileges are not absolute. For as the Government House Leader has pointed out, Members themselves have agreed to impose certain limitations on them. In fact, there was further agreement on this matter the other day when a motion was passed on a supply day dealing with this very issue.

Nonetheless, I believe it remains my duty as your Speaker to ensure that all measures to safeguard their very existence are taken. This is particularly true in the circumstances before us where an interpretation of the rules that we have adopted entails consequences which appear to be so obviously unintended by the very Members who created the rules.

For these reasons, I believe the matter has met the necessary conditions to be given priority consideration by the House. Accordingly I rule that this is a prima facie matter of privilege and I invite the hon. Member for Scarborough–Rouge River to move his motion.

Mr. Lee moved that the subject matter of the Speaker’s ruling be referred to the Standing Committee on Procedure and House Affairs. Peter Julian (Burnaby–New Westminster) then moved an amendment. Following debate, the amendment and the motion, as amended, were agreed to on division.^[4] The Committee did not report on the question of privilege prior to the dissolution of the Thirty-Ninth Parliament.