Parliamentary Privilege / Rights of Members

Freedom from obstruction, interference, intimidation and molestation: damaging the reputation of a Member; improper use of House resources

October 5, 2010

Debates, pp. 4780-1

On September 22, 2010, Candice Hoeppner (Portage–Lisgar) rose on a question of privilege with regard to an e-mailed media release issued by the Press Secretary to Michael Ignatieff (Leader of the Official Opposition). Ms. Hoeppner argued that, in addition to containing comments she considered a grave slur upon her reputation, the release had constituted an improper use of House resources to transmit inaccurate information about a Member. After hearing from other Members, the Speaker reserved his decision.^[1]

On October 5, 2010, the Speaker delivered his ruling. With regard to the alleged misuse of House resources, he referred to a February 12, 2009 ruling^[2] and reaffirmed that it was the role of Members, and not of the Chair, to monitor the contents of e-mails and other electronic communications. He also indicated that such communications may not be protected by privilege and may therefore expose Members to legal action. With respect to comments or statements made outside the House, the Speaker stated that his predecessors had consistently ruled that these were not matters in which the Chair intervenes. Concerning the allegation that the press release had tarnished the reputation of Ms. Hoeppner, the Speaker addressed the precedents cited by her, specifically one concerning mailings sent into the constituency of Sackville–Eastern Shore, where the Speaker had found a prima facie question of privilege.^[3] He stated that the two were not analogous and that they differed in several respects. First, the Stoffer case involved mailings paid for from a central budget in the House. Second, the mailings were mailed by another Member into the complaining Member’s constituency. Finally, the information in those mailings was factually incorrect, thereby directly distorting the Member’s position on an issue. The Speaker ruled that Ms. Hoeppner had not been impeded or obstructed in the carrying out of her duties and that therefore the incident did not provide grounds for a finding of a prima facie question of privilege.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on September 22, 2010, by the hon. Member for Portage–Lisgar concerning an e-mailed media release issued by the Press Secretary to the Leader of the Official Opposition.

I would like to thank the hon. Member for Portage–Lisgar for having raised this matter, as well as the hon. Government House Leader, the hon. House Leader of the Official Opposition and the hon. Member for Outremont, for their interventions.

The Member for Portage–Lisgar, in presenting her question of privilege, stated that she believed that in addition to containing comments about her, which she called a grave slur upon her reputation, the media release at issue constituted an improper use of House resources.

The House Leader for the Official Opposition argued that, read carefully in their full context, the statements contained in the media release were reasonable interpretations of comments the Member for Portage–Lisgar had made in a CBC radio interview and, thus, were simply matters of public discourse and debate.

Let me deal first with the Member for Portage–Lisgar’s contention that House of Commons resources were misused in this case. I wish to remind the House that in a ruling on February 12, 2009, at pages 713-4 of Debates, I stated that it is not the role of the Chair to monitor the contents of e-mails and other electronic communications. I added that:

… one important consideration Members must take into account is that communications via the Internet and e-mail may not be protected by privilege and may expose Members to the possibility of legal action for material they disseminate.

Obviously, in cases where the staff of a Member is involved, it is ultimately the Member who bears responsibility for ensuring that House resources are used appropriately.

With regard to the main argument raised by the Member for Portage–Lisgar, the Chair wishes to state at the outset that it takes very seriously matters in which the reputation of a Member is involved. In adjudicating such cases, the Chair is guided by well-established principles. As is stated in House of Commons Procedure and Practice, Second Edition, at page 111:

In ruling on such matters, the Speaker examines the effect the incident or event had on the Member’s ability to fulfill his or her parliamentary responsibilities. If, in the Speaker’s view, the Member was not obstructed in the performance of his or her parliamentary duties and functions, then a prima facie breach of privilege cannot be found.

Consistent with this, in a ruling by Mr. Speaker Fraser from May 5, 1987, at page 5766 of the Debates, which can also be found at pages 111 to 112 of O’Brien and Bosc, it states:

The privileges of a Member are violated by any action which might impede him or her in the fulfilment of his or her duties and functions. It is obvious that the unjust damaging of a reputation could constitute such an impediment. The normal course of a Member who felt himself or herself to be defamed would be the same as that available to any other citizen, recourse to the courts under the laws of defamation with the possibility of damages to substitute for the harm that might be done.

In support of her argument, the Member for Portage–Lisgar referred to a ruling by Speaker Sauvé from October 29, 1980. But I would invite the House to a closer reading of the ruling at pages 4213-4 of Debates, in which the Speaker stated:

… it seems to me that to amount to contempt, representations or statements about our proceedings, or of the participation of Members should not only be erroneous or incorrect, but rather should be purposely untrue and improper and import a ring of deceit…. My role, therefore, is to interpret the extracts of the document in question not in terms of their substance, but to find whether, on their face, they represent such a distorted interpretation of the events or remarks in our proceedings that they obviously attract the characterization of false.

Members will note that in this 1980 case, Madam Speaker Sauvé is speaking about the interpretation of statements made in the course of our proceedings; in the case now before us, the statements at issue were made in the context of a media interview. This is a significant difference.

In the past, when Members have raised concerns about comments made outside the House and whether or not they constituted breaches of privilege, successive Speakers have been consistent in ruling that these are not matters in which the Chair intervenes. In support of that, I refer Members to House of Commons Procedure and Practice, Second Edition, page 614.

Speaker Sauvé succinctly summarized the issue in an October 12, 1983, ruling (Debates, p. 27945), when she stated:

Parliamentary privilege is limited in its application…. If Members engage in public debate outside the House, they enjoy no special protection. To invoke privilege, the offence must be attached to a parliamentary proceeding.

In view of these key precedents, it is therefore not surprising that there have been very few instances where the Speaker has found a prima facie breach of privilege related to the damaging of a Member’s reputation. The Member for Portage–Lisgar recalled one such instance in my ruling of November 19, 2009, which can be found at page 6982 of the Debates, concerning mailings sent into the constituency of Sackville–Eastern Shore.

However tempting it is to regard that particular instance as analogous to the one currently before us, it did differ materially in several respects. First, that case involved mailings paid for from a central budget in the House. Then, these mailings were sent directly by another Member into the complaining Member’s riding to large numbers of his constituents. Finally, the information in those mailings was factually incorrect, thereby directly distorting the Member’s position on an issue.

Instead of the case just described, I believe that the ruling I gave on February 12, 2009, at pages 765-6 of the Debates, is more helpful in this case. On that occasion, I stated:

In adjudicating questions of privilege of this kind, the Speaker is bound to assess whether or not the Member’s ability to fulfill his parliamentary functions effectively has been undermined…. [W]ithout minimizing the seriousness of the complaint or dismissing the gravity of the situation raised by the hon. Member, it is difficult for the Chair to determine, given the nature of what has occurred that the Member is unable to carry out his parliamentary duties as a result.

On balance, based on the arguments presented in this instance, and given the relevant precedents, I cannot find that the Member has been impeded or obstructed in carrying out her duties. While the Chair is sympathetic to the concerns of the Member for Portage–Lisgar, in view of the strict exigencies the Chair is bound to observe in cases of this kind, I cannot find a prima facie question of privilege.

The House will have noted that in rising on her question of privilege, the Member for Portage–Lisgar did get an opportunity to correct the record: she has been able to dispel any wrong impression of what her true position is on the issue raised in the e-mail media release at the centre of this controversy.

I therefore thank hon. Members for their attention on this matter.