Parliamentary Privilege / Rights of Members

Freedom from obstruction, interference, intimidation and molestation: bulk mailings to another Member’s constituency of flyers (“ten percenters”) containing misleading statements; prima facie

November 19 and 26, 2009

Debates, p. 6982 and p. 7277

On November 3, 2009, Peter Stoffer (Sackville–Eastern Shore) rose on a question of privilege with respect to a bulk mailing of flyers (“ten percenters”) to some of his constituents by Maurice Vellacott (Saskatoon–Wanuskewin), which contained statements about Mr. Stoffer’s voting record. Mr. Stoffer alleged that the flyers contained information regarding his position and voting record on the long-gun registry that was factually incorrect, and that impugned his reputation and the work he had done. Mr. Stoffer asked Mr. Vellacott for an apology. Mr. Vellacott conceded that Mr. Stoffer, contrary to claims made in the flyers, had absented himself from the vote on the long-gun registry, and thanked him for his opposition to that piece of legislation. After hearing further interventions, the Speaker reserved his decision.^[1]

On November 19, 2009, Irwin Cotler (Mount Royal) rose on a similar question of privilege with regard to ten percenters sent to some of his constituents by Joe Preston (Elgin–Middlesex–London). Mr. Cotler argued that these bulk mailings, which were targeted to ridings with identifiable Jewish communities, comparing the positions of the Conservative and Liberal parties on fighting anti-Semitism, fighting terrorism, and on their support for Israel, were not only false and misleading, but also contained allegations that were slanderous, damaging, and prejudicial to him and to his party. After hearing from other Members, the Speaker, noting that the majority of the arguments presented had concerned the facts of the matter, which were not for him to determine, reserved his decision.^[2]

On November 19, 2009, immediately after the exchanges on Mr. Cotler’s question of privilege, the Speaker delivered his ruling on Mr. Stoffer’s question of privilege. Referring to a similar case from 2005,^[3] he concluded that the items mailed to the constituents of Sackville–Eastern Shore had indeed distorted the Member’s true position and, by doing so, had infringed on his privileges by affecting his ability to function as a Member, and had the potential to create confusion in his constituents’ minds, and that may have unjustly damaged his reputation and credibility with voters. Accordingly, he ruled that a prima facie case of privilege did exist, and he invited the Member to move his motion.

On November 26, 2009, the Speaker delivered his ruling on Mr. Cotler’s question of privilege. He agreed that the contents of the ten percenters had been damaging to Mr. Cotler’s reputation and credibility, and left a wrong impression about his long-standing positions. The Speaker therefore found that a prima facie question of privilege did exist, consistent with other rulings. Accordingly, he invited Mr. Cotler to move his motion. (Editor’s Note: Both decisions are reproduced below.)

Decisions of the Chair

November 19, 2009

The Speaker: I am now prepared to rule on the question of privilege raised on November 3, 2009 by the hon. Member for Sackville–Eastern Shore concerning the mailing of a ten percenter to some of his constituents by the hon. Member for Saskatoon–Wanuskewin. The mailing was critical of the voting record of the Member for Sackville–Eastern Shore on the issue of the long-gun registry.

I would like to thank the hon. Member for raising this matter and providing the Chair with a copy of the material in question, as well as the Member for Saskatoon–Wanuskewin for his contribution on the issue.

In presenting his case, the Member for Sackville–Eastern Shore claimed that the Member for Saskatoon–Wanuskewin had sent a mailing to some of the constituents of Sackville–Eastern Shore that contained information that was factually wrong regarding his position on the long-gun registry as well as on his voting record on this matter. He accused the Member for Saskatoon–Wanuskewin of deliberately misleading his constituents and impugning his reputation on the work that he had done on legislation regarding the long-gun registry.

In his comments, the hon. Member for Saskatoon–Wanuskewin obliquely acknowledged, without apologizing, that he had made an error and that the ten percenter in question was incorrect in reference to the Member for Sackville–Eastern Shore. The Member for Saskatoon–Wanuskewin then thanked the hon. Member for his long-standing opposition to the long-gun registry.

The situation before us today is analogous to one in 2005 in which a similar mailing was sent to the constituency of the hon. Member for Windsor West. That mailing had the effect of distorting the Member’s voting record, again on the gun registry and thereby misinforming his constituents. In finding a prima facie case of privilege, on April 18, 2005, Debates, page 5215, I stated:

This may well have affected his ability to function as a Member and may have had the effect of unjustly damaging his reputation with voters in his riding.

The Thirty-Eighth Report of the Standing Committee on Procedure and House Affairs tabled on May 11, 2005, on the same matter concurred in that view.

Again, I quote:

The Member for Windsor West noted that he had received complaints from constituents as a result of the mailing. By unjustly damaging his reputation with voters in his riding, it thereby impairs his ability to function as a Member.

Having reviewed the material submitted, as well as the arguments made, the Chair can only conclude that the mailing sent to the constituents of Sackville–Eastern Shore did distort their Member’s true position on the long-gun registry and, at the very least, had the potential to create confusion in their minds.

It may also have had the effect of unjustly damaging his reputation and his credibility with the voters of his riding and, as such, infringing on his privileges by affecting his ability to function as a Member.

Accordingly, I find that a prima facie case of privilege does exist and I invite the hon. Member for Sackville–Eastern Shore to move his motion now.

November 26, 2009

The Speaker: I am now prepared to rule on the question of privilege raised on November 19, 2009, by the hon. Member for Mount Royal concerning the mailing of a ten percenter to some of his constituents by the hon. Member for Elgin–Middlesex–London comparing the positions of the Conservative Party of Canada and the Liberal Party of Canada on certain aspects of Canada’s policy in the Middle East.

I would like to thank the hon. Member for Mount Royal for having raised this important matter. I would also like to thank the Parliamentary Secretary to the Prime Minister and the Minister of Intergovernmental Affairs, the Whip of the Bloc Québécois, the Member for Windsor West, the Member for Saint-Laurent–Cartierville, the Leader of the Government in the House of Commons and the Member for Eglinton–Lawrence for their comments.

In outlining his case, the hon. Member for Mount Royal stated that a mailing purporting to contain information on three issues, namely, fighting anti-Semitism, fighting terrorism and supporting Israel, was sent to some of his constituents, as well as to other ridings with identifiable Jewish communities.

The Member went on to claim that this mailing was not only, in the words of the hon. Member, “false and misleading”, but also “slanderous, damaging and prejudicial” to the Liberal Party and, by extension, himself.

This argument was supported by the Whip for the Bloc Québécois, the hon. Member for Windsor West, the hon. Member for Saint-Laurent–Cartierville and the hon. Member for Eglinton–Lawrence.

In response, the hon. Parliamentary Secretary to the Prime Minister explained in some detail the content of the ten percenter in question and defended its veracity. For his part, the hon. Leader of the Government in the House of Commons pointed out that all parties are engaged in this style of communication.

As hon. Members know, in deciding on a question of privilege, the Speaker is not charged with determining the facts; the Chair’s ruling is limited to whether on first impression, prima facie, the matter before the House merits priority consideration. In cases where a Member alleges that he has experienced interference in the performance of his parliamentary duties, the Speaker’s task is particularly difficult. As O’Brien and Bosc states at page 111:

It is impossible to codify all incidents which might be interpreted as matters of obstruction, interference, molestation or intimidation and as such constitute prima facie cases of privilege. However, some matters found to be prima facie include the damaging of a Member’s reputation, the usurpation of the title of Member of Parliament, the intimidation of Members and their staff and of witnesses before committees, and the provision of misleading information.

The Chair has examined the numerous documents submitted in this case. Having heard all the arguments presented, I must agree with several Members who suggested that there is no denying the critical role that context played in shaping the cumulative net effect of the words used in this mailing. In my view, the end result was a negative effect that spilled over to the Member for Mount Royal in a very direct and personal way.

It is not for the Chair to comment either way on the accuracy or inaccuracy of the comparisons drawn on the bulk mailing complained of by the Member for Mount Royal. That said, however, the Chair has no difficulty concluding that any reasonable person reading the mailing in question, and this would, of course, include the constituents of Mount Royal, would have likely been left with an impression at variance with the Member’s long-standing and well-known position on these matters.

Therefore, I must conclude that the Member for Mount Royal, on the face of it, has presented a convincing argument that the mailing constitutes interference with his ability to perform his parliamentary functions in that its content is damaging to his reputation and his credibility.

Consistent with the ruling given on November 19, 2009, in relation to the hon. Member for Sackville–Eastern Shore and with other rulings in relation to mailings in 2005, and I suggest hon. Members look at the ruling on November 3, 2005, pages 9489-90 of the Debates, the Chair finds that a prima facie question of privilege does exist. I therefore invite the hon. Member for Mount Royal to move his motion.

On November 19, 2009, Mr. Stoffer moved that the matter of his question of privilege be referred to the Standing Committee on Procedure and House Affairs. The motion was adopted that day without debate.^[4]

On November 29, 2009, Mr. Cotler moved that the matter of his question of privilege be referred to the Standing Committee on Procedure and House Affairs. Following debate, the question was put on the motion, and a recorded division was deferred. On November 30, 2009, the motion was adopted.^[5]

On December 30, 2009, the Second Session of the Fortieth Parliament was prorogued. On March 15, 2010, in the Third Session of the Fortieth Parliament, the House adopted an Order of Reference reinstating the Standing Committee on Procedure and House Affairs’ consideration of both Mr. Stoffer’s and Mr. Cotler’s questions of privilege.^[6] However, in light of a subsequent decision by the Board of Internal Economy to limit the use of bulk mailings, the Committee recommended, in its Sixth and Seventh Reports, presented to the House on April 16, 2010, that the matters of the two questions of privilege be discharged without prejudice.^[7] The House concurred in both Reports later that day.^[8]

On March 21, 2005, Brian Masse (Windsor West),^[9] on May 3, 2005, Mark Holland (Ajax–Pickering)^[10] and John Reynolds (West Vancouver–Sunshine Coast–Sea to Sky Country),^[11] on May 10, 2005, Michael Chong (Wellington–Halton Hills),^[12] and on October 27, 2005, Denis Coderre (Bourassa)^[13] rose on five similar questions of privilege with respect to bulk mailings to the constituents of various Members. In each instance, the Speaker found the question of privilege to be prima facie. In the first four instances, the House agreed to refer the questions of privilege to the Standing Committee on Procedure and House Affairs. The Committee reported back to the House on Mr. Masse’s question of privilege on May 11, 2005.^[14] The questions of privilege raised by Mr. Holland, Mr. Reynolds and Mr. Chong were considered simultaneously by the Committee, which reported back to the House on June 22, 2005.^[15] No motion of concurrence was moved for the Report covering Mr. Masse’s question of privilege, or for the Report covering the questions of privilege from Mr. Holland, Mr. Reynolds and Mr. Chong. On November 15, 2005, the House defeated the motion to refer Mr. Coderre’s question of privilege to the Standing Committee on Procedure and House Affairs.^[16]