  |
|
It is important to distinguish between a “breach of privilege” and “contempt of Parliament”. Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a Member of the House, is referred to as a “breach of privilege” and is punishable by the House.[116] There are, however, other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges. Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands or libels upon itself, its Members, or its officers.[117] As the authors of Odgers’ Senate Practice (Australia) state: “The rationale of the power to punish contempts, whether contempt of court or contempt of the Houses, is that the courts and the two Houses should be able to protect themselves from acts which directly or indirectly impede them in the performance of their functions”.[118] In that sense, all breaches of privilege are contempts of the House, but not all contempts are necessarily breaches of privilege. The House of Commons enjoys very wide latitude in maintaining its dignity and authority through the exercise of its contempt power. In other words, the House may consider any misconduct to be contempt and may deal with it accordingly. Instances of contempt in one Parliament may even be punished by another Parliament.[119] This area of parliamentary law is therefore extremely fluid and most valuable for the Commons to be able to meet novel situations. Throughout the Commonwealth most procedural authorities hold that contempts, as opposed to “privileges”, cannot be enumerated or categorized. Speaker Sauvé explained in a 1980 ruling: “… while our privileges are defined, contempt of the House has no limits. When new ways are found to interfere with our proceedings, so too will the House, in appropriate cases, be able to find that a contempt of the House has occurred”.[120] The United Kingdom Joint Committee on Parliamentary Privilege attempted to provide a list of some types of contempt in its 1999 report:
In the case of Members, the Joint Committee also considered the following types of conduct to constitute contempt:
Just as it is not possible to categorize or to delineate every incident which may fall under the definition of contempt, it is also difficult to categorize the “severity” of contempt. Contempts may vary greatly in their gravity; matters ranging from minor breaches of decorum to grave attacks against the authority of Parliament may be considered as contempts.[123] By far, most of the cases of privilege raised in the House relate to matters of contempt challenging the perceived authority and dignity of Parliament and its Members.[124] Other cases have involved charges made by a Member about another Member[125] or media allegations concerning Members.[126] The premature disclosure of committee reports and proceedings has frequently been raised as a matter of privilege[127] as has the provision of deliberately misleading information to the House by a Minister[128] and the provision of misleading testimony by a witness before a committee.[129] Finally, the denial of access of Members to the Parliamentary Precinct has been found to constitute contempt of the House on two occasions.[130] In those instances where no specific individual has been identified, the matter has not been pursued even though it might appear to involve contempt.[131] The reluctance to invoke the House’s authority to reprimand or admonish anyone found to have trampled its dignity or authority and that of its Members appears to have become a near constant feature of the Canadian approach to privilege. For example, in 1976, the Standing Committee on Privileges and Elections chastised a former Member (Auguste Choquette (Lotbinière)) who claimed that many parliamentarians had obtained undue financial considerations, but did not recommend any further consideration be given to the matter after concluding that his attitude was intemperate and irresponsible.[132] In the 1987 Parry case where the Member divulged the result of an in camera vote, the Standing Committee on Elections, Privilege and Procedure also did not recommend punishment[133] and the Member’s apology to the House put an end to the matter. In the 1996 Jacob case, the Standing Committee on Procedure and House Affairs noted that while the Member’s actions were ill‑advised, they did not amount to contempt or a breach of parliamentary privilege.[134] In 2005, the Standing Committee on Procedure and House Affairs found “that the Ethics Commissioner was in contempt of the House of Commons” for his actions during the conduct of an inquiry, but did not recommend any sanctions or penalty because the actions were neither deliberate nor intended.[135] In 2008, the House found the Deputy Royal Canadian Mounted Police (RCMP) Commissioner in contempt of the House but did not impose any punishment because “this finding of contempt is, in and of itself, a very serious sanction”.[136] Though the power of the House to imprison remains, it is difficult to foresee circumstances arising that would oblige the House to invoke it.[137] Members have proven themselves to be fairly thick‑skinned when it comes to criticism, even when it appears hard and unfair. They seem willing to endure such treatment from the press and other media rather than raise a potential conflict between the authority of the House and the freedom of the press.[138] There is, however, no doubt that the House of Commons remains capable of protecting itself from abuse should the occasion ever arise. This topic is discussed in greater detail in the section in this chapter entitled “Power to Discipline”. [116] May, 23rd ed., p. 75; Maingot, 2nd ed., p. 179. [117] May, 23rd ed., pp. 75, 128. [118] Odgers, 12th ed., p. 62. [119] Debates, November 9, 1978, p. 965; December 16, 1980, p. 5797. [120] Debates, October 29, 1980, p. 4214. Speakers Fraser and Parent also reiterated this explanation (Debates, October 10, 1989, p. 4459; October 9, 1997, p. 687). [121] Joint Committee on Parliamentary Privilege (United Kingdom), Report, March 30, 1999, Chapter 6, par. 264. This list was also included in the Ninth Report of the Standing Committee on Government Operations and Estimates, presented to the House on November 4, 2003 (Journals, p. 1225). [122] Joint Committee on Parliamentary Privilege (United Kingdom), Report, March 30, 1999, Chapter 6, par. 264. [123] Kaul, M.N. and Shakdher, S.L., Practice and Procedure of Parliament (with particular reference to Lok Sabha), 5th ed., edited by G.C. Malhotra, New Delhi: Metropolitan Book Co., 2001, pp. 256-7. For a listing of the main types of contempt established in the United Kingdom, see Griffith and Ryle, 2nd ed., pp. 137‑8. Of the prima facie cases of contempt raised in the Canadian House since 1867, only five motions containing the word “contempt” have been adopted by the House. The first occurred in 1873 when the House found an article printed in the Morning Freeman newspaper to be a “high contempt of the privileges and the Constitutional authority of this House” (Journals, April 17 and 18, 1873, pp. 167‑72). The second motion was adopted in 1913 when a witness called to the Bar of the House refused to answer certain questions put to him: “[H]is refusal to answer said question constitutes a breach of the privileges of Parliament, and renders the said Mr. R.C. Miller guilty of contempt of this House …” (Journals, February 20, 1913, pp. 274‑8, in particular p. 278). The third motion containing the word “contempt” was adopted in 2002 when Keith Martin (Esquimalt–Juan de Fuca) was suspended from the service of the House “for his actions in disregard of the authority of the Chair and in contempt of the House” (Debates, April 17, 2002, pp. 10526‑7; April 18, 2002, p. 10537; Journals, April 22, 2002, p. 1323, Debates, pp. 10654‑70; Journals, April 23, 2002, pp. 1337‑8, Debates, pp. 10747‑8; Debates, April 24, 2002, p. 10770). The fourth motion was adopted in 2003 when the House found the former Privacy Commissioner, George Radwanski, in contempt for providing misleading testimony to the Standing Committee on Government Operations and Estimates (Debates, November 4, 2003, pp. 9150‑1; Journals, November 6, 2003, pp. 1248‑9, Debates, pp. 9229‑31, 9237). The fifth motion was adopted in 2008 when the House found Deputy RCMP Commissioner Barbara George in contempt of the House for providing false and misleading testimony to the Standing Committee on Public Accounts (Journals, April 10, 2008, p. 685, Debates, p. 4271). [124] For example, in 2001, a question of privilege was raised regarding a briefing the Department of Justice held for members of the media on a bill not yet introduced in the House, while denying Members access to the same information. Speaker Milliken ruled that the provision of information concerning legislation to the media without any effective measures to secure the rights of the House constituted a prima facie case of contempt (Debates, March 19, 2001, pp. 1839‑40). The matter was referred to the Standing Committee on Procedure and House Affairs (Journals, March 19, 2001, p. 187). In its Fourteenth Report, presented to the House on May 9, 2001 (Journals, pp. 385‑6), the Committee found that the privileges of the House and of its Members had been breached: “This case should serve as a warning that our House will insist on the full recognition of its constitutional function and historic privileges across the full spectrum of government”. However, the Committee did not recommend any sanctions in light of the apology of the Minister of Justice and the corrective actions that were being taken to ensure that such events did not reoccur. A prima facie breach of privilege was found in a similar case later the same year, and the matter was referred to the Procedure and House Affairs Committee (Journals, October 15, 2001, p. 707, Debates, pp. 6082‑5). In this instance, however, the Committee concluded that there was no evidence to support a claim of contempt (Fortieth Report of the Standing Committee on Procedure and House Affairs, presented to the House on November 29, 2001 (Journals, p. 883)). [125] In March 1996, for example, Jim Hart (Okanagan–Similkameen–Merritt) accused Jean‑Marc Jacob (Charlesbourg) of sedition for a 1995 communiqué sent by him to members of the Armed Forces in Quebec concerning the October 30, 1995 referendum in that province. Speaker Parent ruled the matter prima facie and Mr. Hart moved a motion which referred to the actions of Mr. Jacob as constituting a “contempt of Parliament”. However, the motion as adopted by the House was amended to delete the reference to contempt (Journals, March 12, 1996, pp. 79‑80, Debates, pp. 557‑67; Journals, March 13, 1996, pp. 88‑9, Debates, pp. 648‑74; Journals, March 14, 1996, pp. 94‑6, Debates, pp. 680‑703, 716‑47; Journals, March 18, 1996, pp. 107‑10, Debates, pp. 854‑9). On June 18, 1996, the Standing Committee on Procedure and House Affairs presented its Twenty‑Ninth Report which found that although Mr. Jacob’s actions had been ill advised, there was no contempt of the House (Journals, June 18, 1996, pp. 565‑6). See also Journals, June 20, 1996, pp. 592‑3. [126] In 1975, for example, the Standing Committee on Privileges and Elections found the Montreal Gazette to have fallen short of accepted journalistic standards in a story claiming that a Member, John Reid (Kenora–Rainy River), had advance knowledge of the budget and that he had passed on that information to businessmen (Debates, July 24, 1975, pp. 7886‑9; Journals, July 25, 1975, pp. 742‑3, Debates, pp. 7937‑41, 7946‑8; Journals, October 17, 1975, pp. 781‑2). A similar finding was made in 1983 when the same newspaper suggested that Bryce Mackasey (Verdun) had acted as a paid lobbyist while still a Member of the House (Debates, March 16, 1983, pp. 23834‑5; March 17, 1983, pp. 23880‑1; Journals, March 22, 1983, p. 5736, Debates, pp. 24027‑30; Journals, November 23, 1983, p. 6588). In March 1998, Speaker Parent found that an article in the Ottawa Sun newspaper, attributing to Members statements which might bring into question the integrity of the House and the Speaker, was a prima facie breach of privilege (Debates, March 9, 1998, pp. 4560‑75; March 10, 1998, pp. 4592‑8, 4666‑8). On April 27, 1998, the Standing Committee on Procedure and House Affairs presented its Twenty‑Ninth Report in which it found that the statements made by the Members did not bring into question the integrity of the House or the Speaker (Journals, April 27, 1998, p. 706). [127] There are two notable instances. The first occurred in 1987 when Speaker Fraser accepted as a prima facie question of privilege a matter involving John Parry (Kenora–Rainy River), who had divulged the result of an in camera vote (Debates, April 28, 1987, pp. 5299, 5329‑30; May 5, 1987, pp. 5737‑42; May 14, 1987, pp. 6108‑11; December 18, 1987, pp. 11950‑1; Journals, May 14, 1987, p. 917; December 18, 1987, pp. 2014‑6). The second occurred in 2000 when Speaker Parent ruled that the premature release by Leon Benoit (Lakeland) of a draft report of the Standing Committee on Citizenship and Immigration before it had been presented to the House was a prima facie matter (Debates, March 28, 2000, pp. 5368‑9). The motion to refer the matter to the Standing Committee on Procedure and House Affairs was negatived on a recorded division (Journals, March 29, 2000, pp. 1503‑4). [128] In 2002, when Art Eggleton (Minister of National Defence) was accused of deliberately making misleading statements in the House about the handing over of prisoners captured by Canadian troops in Afghanistan to the American forces, Speaker Milliken ruled that the matter merited being considered by an appropriate committee because the House had been left with two versions of the event. He found a prima facie case of privilege and the matter was referred to the Standing Committee on Procedure and House Affairs (Debates, February 1, 2002, pp. 8581-2; Journals, February 7, 2002, pp. 1019‑20). In his appearance before the Committee on the matter, the Clerk of the House referred to Parliamentary Practice in New Zealand where it is stated that the following elements have to be established when it is alleged that a Member is in contempt for deliberately misleading the House: one, it must be proven that the statement was misleading; two, it must be established that the Member making the statement knew at the time that the statement was incorrect; and three, that in making the statement, the Member intended to mislead the House (McGee, D., 2nd ed., Wellington: GP Publications, 1994, p. 491; Standing Committee on Procedure and House Affairs, Evidence, February 5, 2002, Meeting No. 45). See also McGee, 3rd ed., Dunmore Publishing Ltd., 2005, pp. 653‑4. The Committee found that there was no evidence to support the allegation that the Minister had deliberately misled the House. See the Fiftieth Report of the Standing Committee on Procedure and House Affairs, presented to the House on March 22, 2002 (Journals, p. 1250). [129] In 2003, the former Privacy Commissioner, George Radwanski, was found in contempt of the House for providing deliberately misleading testimony during hearings of the Standing Committee on Government Operations and Estimates into the financial management and staffing of the Office of the Privacy Commissioner (Journals, November 6, 2003 pp. 1245, 1249, Debates, pp. 9229‑31, 9237). In 2008, Deputy RCMP Commissioner Barbara George was found in contempt of the House for providing misleading testimony during the Standing Committee on Public Accounts hearings into allegations of mishandling of the RCMP’s pension and insurance plans (Journals, April 10, 2008, p. 685, Debates, p. 4721). [130] The first incident involved picket lines established to impede access to the Parliamentary Precinct (Journals, February 17, 1999, p. 1517, Debates, pp. 12009‑12, in particular p. 12011; Sixty‑Sixth Report of the Standing Committee on Procedure and House Affairs, presented to the House on April 14, 1999 (Journals, p. 1714)). The Committee found that the contempt was technical and unintended and therefore did not recommend any sanctions. The second case concerned the free movement of Members within the Parliamentary Precinct during the visit of American President George W. Bush (Journals, December 1, 2004, p. 279, Debates, pp. 2134‑7; Twenty‑First Report of the Standing Committee on Procedure and House Affairs, presented to the House on December 15, 2004 (Journals, January 31, 2005, p. 366) and concurred in on May 17, 2005 (Journals, pp. 764‑5)). The Committee stated: “The denial of access, and significant delays, experienced by Members of the House constitute a contempt of the House”. [131] See, for example, Journals, October 22, 1975, pp. 791‑2; Debates, December 9, 1997, p. 2945; November 26, 1998, p. 10467; February 25, 2004, p. 1047. [132] Journals, May 7, 1976, p. 1275, Debates, pp. 13269‑71, 13280‑1; Journals, May 21, 1976, pp. 1305‑7. [133] Seventh Report of the Standing Committee on Elections, Privileges and Procedure, presented to the House on December 18, 1987 (Journals, pp. 2014‑6). [134] Twenty‑Second Report of the Standing Committee on Procedure and House Affairs, presented to the House on June 18, 1996 (Journals, pp. 565‑6). [135] Fifty‑First Report of the Standing Committee on Procedure and House Affairs, presented to the House on November 18, 2005 (Journals, pp. 1289‑90), in particular par. 37. [136] Journals, April 10, 2008, p. 685, Debates, p. 4721. [137] This was noted by the Special Committee on the Rights and Immunities of Members in its First Report to the House, presented on July 12, 1976 (Journals, p. 1422). [138] Maingot, 2nd ed., pp. 247‑55. See also Speakers’ rulings, Debates, June 18, 1964, p. 4434; June 9, 1969, pp. 9899‑900; April 9, 1976, p. 12668; August 12, 1988, p. 18272; March 24, 1994, pp. 2705‑6. The Speaker has noted, however, that, as a citizen, a Member who has a complaint about media coverage of his or her own words or actions has access to the courts. Speaker Fraser stated in 1988: “Past Speakers have consistently argued that freedom of the press is one of the fundamental rights of our society which ought to be interfered with only if it is clearly in contempt of the House. Members who have complaints about reporting of their positions or activities should seek remedy in the courts” (Debates, August 12, 1988, p. 18272). See also Speaker Jerome’s ruling, Debates, June 23, 1977, pp. 7044‑5. |
 |
