Parliamentary Privilege / Rights of the House

Contempt of the House: right of Members with disputed electoral campaign returns to sit and vote in the House; prima facie

June 18, 2013

Debates, pp. 18550–3

On June 5, 2013, Scott Andrews (Avalon) rose on a question of privilege regarding the right of James Bezan (Selkirk—Interlake) and Shelly Glover (Saint Boniface) to sit and vote in the House. He referred to a letter sent to the Speaker indicating that these two Members had failed to correct their electoral campaign returns by a specified date as required by the Chief Electoral Officer, pursuant to subsection 457(2) of the Canada Elections Act. Mr. Andrews argued that, pursuant to subsection 463(2) of the same Act, the Members no longer had the right to sit or vote in the House. He also added that only the House had the authority to determine these rights. After hearing from several other Members, the Speaker took the matter under advisement.^[1] On June 7, 2013, Mr. Bezan and Ms. Glover both stated that the issue was a disagreement with Elections Canada about the interpretation of accounting practices regarding certain expenses, that they had filed applications with the courts to examine the issue which effectively stayed the suspension mechanism in the Act, and that the sub judice convention should apply.^[2] Several additional Members made statements on that day and in the ensuing days, and the Speaker again took the matter under advisement.^[3]

On June 6, 2013, Massimo Paccetti (Saint-Léonard—Saint-Michel) and Wayne Easter (Malpeque) both rose on a point of order to request that the Speaker table the letter he had received from the Chief Electoral Officer regarding the election expenses of Mr. Bezan and Ms. Glover.^[4] On June 7, 2013, the Speaker stated that in the absence of any statutory or Standing Order authority for the tabling of letters to the Speaker, even from an officer of Parliament, the Chief Electoral Officer remained responsible for making such correspondence public.^[5]

Resolution

On June 18, 2013, the Speaker delivered his ruling. He stated that the matter was a question of how a statute might apply to proceedings in the House and of the need to maintain equilibrium between the rights of the House as a whole and the rights of individual Members. The Speaker confirmed that ultimately, it is the House that decides if a Member can sit and vote in the House. He added that in the current case, no statutory direction or precedents existed to guide the Chair. The Speaker therefore asked the Standing Committee on Procedure and House Affairs to examine the issue with a view to incorporating necessary provisions in the Standing Orders, adding that focusing on the processes only, the sub judice convention would not be breached. Affirming that it is customary that questions affecting the seat of a Member and involving matters of doubt, either in law or fact, be referred to a committee, the Speaker stated that he would make available to the House the relevant letters from the Chief Electoral Officer in this case and similar cases in future. The Speaker concluded that there was a prima facie case of privilege. He then invited Dominic LeBlanc (Beauséjour), in the absence of Mr. Andrews, to move the appropriate motion.^[6]

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on June 5 by the hon. Member for Avalon, and again today by the hon. Member for Beauséjour, regarding the right of the Members for Saint Boniface and Selkirk—Interlake to continue to sit and vote in the House.

I would like to thank the hon. Member for Avalon for having raised this matter, as well as the hon. Leader of the Government in the House of Commons, and the Members for Toronto—Danforth, Winnipeg North, Selkirk—Interlake and Saint Boniface for their comments.

In raising his question of privilege, the Member for Avalon focused on the situation of the Members for Saint Boniface and Selkirk—Interlake who had failed to correct their electoral campaign returns by a specified date, as required by the Chief Electoral Officer, pursuant to subsection 457(2) of the Canada Elections Act. Accordingly, he argued, pursuant to subsection 463(2) of the same Act, the Members no longer had the right to continue to sit or vote in the House. While acknowledging that both Members had made applications to the courts on this matter, he claimed that a review by the courts does not provide relief from section 463 of the Act, arguing that the Members: “...should not sit or vote in the House until the matter is rectified, either by Elections Canada or by the Federal Court”.

Furthermore, the Member for Avalon argued that only the House and neither the courts nor the Speaker, possessed the authority to determine the right of any Member to sit and vote in the House. In response, the Leader of the Government in the House of Commons described the situation in each case as a dispute about the interpretation of accounting practices, one which did not justify the suspension of duly elected Members from participating in the proceedings of the House. It was also one that he found to have been raised prematurely, and he saw no merit in asking the Chair to intervene prior to the conclusion of relevant court proceedings.

The Government House Leader held that the Members currently have two options—either to submit returns that comply or to file an application with the courts—with suspension from the House being the consequence only if a Member failed to choose one of the available options. Thus, he claimed that to accept the interpretation that these Members could not continue to sit or vote would effectively remove the Members’ right to seek redress through the courts and grant Elections Canada an inordinate, albeit unintended, power.

On June 7, the Members for Selkirk—Interlake and Saint Boniface intervened. Each agreed that the matter was a disagreement with Elections Canada as to accounting interpretations applicable to certain expenditures, and each stated that pursuant to section 459 of the Canada Elections Act they had filed applications with the Manitoba Court of Queen’s Bench. Each Member argued that this put into abeyance the provisions of subsection 463(2) of the Act, regarding what would amount to suspensions from the House.

Given that the matter is currently before the courts, and that they are both party to court proceedings, both Members invoked the sub judice convention, arguing that any debate or decision on the matter outside the court would prejudice their interests in the court proceedings.

Before I begin to outline the complex issues with which we are all grappling, allow me to review for the House the sequence of events that have led us to where we are today.

While the election expense review processes undergone by the Members for Saint Boniface and Selkirk—Interlake began some time ago, for our purposes this issue arose on May 23 and 24, when I received letters from the Chief Electoral Officer informing me of the status of the respective cases involving the two Members. The letters both contain a reference to the relevant section of the Canada Elections Act and close with the following sentence: “In the event that the corrected returns or an application to a court is subsequently filed, I will advise accordingly”.

On May 24, the Chair learned that both Members had filed applications to the Manitoba Court of Queen’s Bench in relation to these matters.

Perhaps I should explain that immediately on receipt of the first letter from the Chief Electoral Officer, I sought the advice of the Clerk and the Law Clerk. Neither was aware of any precedent and both undertook further research, after which they confirmed that the situation is indeed unprecedented.

However, it was only on June 4, having by then been informed as well that the two applications in question had been filed, that the Chief Electoral Officer could himself notify me officially, by letter, of the two applications.

Thus, it was only after these events, and following media reports regarding the existence of these letters, that on June 5, the hon. Member for Avalon rose in the House on a question of privilege to argue the case. Other Members have intervened in the matter and that has led us to this ruling today.

After the intervention by the Member for Avalon, the Member for Saint-Léonard—Saint-Michel raised a related issue on June 6, arguing that the Speaker ought to table the letters from the Chief Electoral Officer in the House.

The Chair then returned on Friday, June 7, to address the matter of the House being notified on the situation. I stated that I was not prepared to table the letters at that time. Since there was no provision to deal with letters of that nature and since I was currently considering the entire matter, I believed it would be appropriate to wait and address all aspects of this situation in a comprehensive ruling.

It seems evident to the Chair that the lack of a clear process, either for me or for the House, in matters of this nature leaves us all in a complicated situation. As Speaker, I must be mindful of my duty to protect the rights of individual Members while, at the same time, balancing that responsibility with the responsibility to ensure, as the servant of the House, that I protect its exclusive right to deal with matters affecting the collective privileges of the House. In the present circumstances, this is no small challenge.

The right—in fact, the absolute need—for Members to be able to sit and vote in the House is so integral to their ability to fulfill their parliamentary duties that it would be difficult for the Chair to overstate the importance of this issue to Members individually and to the House as a whole. Page 245 of House of Commons Procedure and Practice, Second Edition, states that, “…the determination of whether a Member is ineligible to sit and vote is a matter affecting the collective privileges of the House…”.

At the same time, as the Member for Selkirk—Interlake reminded the House, House of Commons Procedure and Practice, [Second Edition], at page 307 states, “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”. In my view, this is especially important in the case before us today because of the potential infringement on the rights of certain Members individually and on the rights of the House collectively.

In fulfilling this responsibility, it is incumbent upon the Chair to remind the House of the limited role assigned to the Speaker in matters with legal implications. Simply put, the Speaker’s role is to determine procedural issues, not matters of law, which are for the courts to decide.

Where a statute lays down a specific course of action, for example to table a document or to hold off on taking action while an appeal to the courts is ongoing, the Chair governs itself accordingly. However, where—to a lay reader—related provisions of a statute are categoric in stating, as subsection 463(2) does in this case, that a particular consequence applies and is silent as to any mitigating effect of an application to the court for relief from that consequence, then the Chair must heed this reality.

That being said, O’Brien and Bosc states at page 259 that:

In the case of statutory provisions, the House of Commons endeavours to ensure that its Standing Orders and practices are consistent with statutes while retaining the exclusive jurisdiction to determine whether the provisions of a statute apply to its proceedings.

Further, at page 265 it also states:

...since the House has the exclusive jurisdiction to determine whether and how a statute applies to its proceedings, there may be extraordinary situations when the House determines that a statutory provision ought not to apply.

To answer this question of how a statute might apply to the House proceedings, the Member for Avalon looked to a ruling given by Speaker Lamoureux on March 1, 1966, for guidance. In it, he found evidence that it is indeed the House, and the House alone, that retains the sole authority to determine when Members of Parliament may sit and vote in the House.

On page 1940 of the Debates, Speaker Lamoureux stated:

...the House is still the sole judge of its own proceedings, and for the purpose of determining on a right to be exercised within the House itself which, in this particular case, is the right of one hon. Member to sit and to vote, the house alone can interpret the relevant statute.

However, does this mean that the House should therefore be seized with this matter immediately in order to pronounce itself on the substantive issue, as several Members have seemed to suggest? Let us consider that question.

House of Commons Procedure and Practice, Second Edition, at pages 244 and 245 states:

Once a person is elected to the House of Commons, there are no constitutional provisions and few statutory provisions for removal of that Member from office. The statutory provisions rendering a Member ineligible to sit or vote do not automatically cause the seat of that Member to become vacant. By virtue of parliamentary privilege, only the House has the inherent right to decide matters affecting its own Membership. Indeed, the House decides for itself if a Member should be permitted to sit on committees, receive a salary or even be allowed to keep his or her seat.

Bourinot’s Parliamentary Procedure and Practice, Fourth Edition, at page 64, reads as follows:

The right of a legislative body to suspend or expel a Member for what is sufficient cause in its own judgment is undoubted. Such a power is absolutely necessary to the conservation of the dignity and usefulness of a body.

Thus, I believe there is no dispute that it is up to the House as a whole, and not for the Speaker, ultimately to decide if one of its Members should continue to sit and vote.

While there may admittedly be some lessons to be drawn from the 1966 case, I must point out that the circumstances facing Speaker Lamoureux in 1966 were markedly different than those at play in the present case.

Some days before ruling as he did, Speaker Lamoureux had informed the House of a judgment on the case at issue. This reference may be found in the Debates for February 28, 1966, at page 1843. As Members who visit that reference will find, it appears that in the 1966 case, the legal process was at an end and the Member whose right to sit and vote had been questioned had been cleared to sit and vote. By contrast, in the case before us today, applications have been filed, as all hon. Members know, although court hearings have yet to begin.

With these considerations in mind, the Chair must determine a way forward for the House that respects and safeguards its rights and privileges. To be sure, the arguments presented have revealed just how rare it is that the Chair is asked to pronounce itself on an issue of such deep significance and with such potential consequences, yet with so few precedents to guide it. The question of the processes that ought to be followed in cases of this kind is of critical importance and is one that the Chair believes the House ought to clarify.

The current situation—and the various interventions on the matter—points to a serious gap in our procedures here in the House in cases where an impasse is reached in a dispute between a Member and Elections Canada. The Canada Elections Act provides that the Chief Electoral Officer inform the Speaker when key milestones have been reached in the course of a dispute. Thus, as I explained earlier, I received a letter from the Chief Electoral Officer informing me that a Member had not complied with his request for corrections and informing me of the suspension provision of the act applicable in the circumstances. Also, while elsewhere in the act there are provisions for a Member in those circumstances to apply to the courts for relief, the act is silent on the effect of such an appeal on the suspension provision.

I am not the only one left with questions about how to respond to this situation. Some argue that the provisions in subsection 463(2) demand immediate action—namely, the suspension of a Member who has not complied with the Chief Electoral Officer in his application of subsection 457(2) of the Canada Elections Act—even as they acknowledge that there is no procedure for operationalizing such a suspension. Others hold that since the Canada Elections Act provides for an application for relief from the provision in subsection 457(2), any suspension is held in abeyance until the court makes its decision.

We can all agree, however, that this silence is in sharp contrast to the statutory processes contained in part 20 of the Canada Elections Act with regard to contested elections, described in O’Brien and Bosc at pages 193 to 195.

In those cases, subsection 531(3) of the statute provides that the clerk of the court shall inform the Speaker of the decision of the court and whether or not an appeal has been filed. The statute is very clear about the Speaker’s duties. It states:

Except when an appeal is filed under subsection 532(1), the Speaker of the House of Commons shall communicate the decision to the House of Commons without delay.

If there is an appeal to the Supreme Court, then the Speaker awaits the decision of that court, which its registrar must communicate to him. Here again, the Canada Elections Act is very clear. Once in possession of that decision, “the Speaker of the House of Commons shall communicate the decision to the House of Commons without delay”.

However, in the case before us, the Speaker is given no such direction and there are no precedents to be guided by. I will therefore respond to the situation as fairly as I can, trying to maintain an equilibrium between the rights of the House as a whole and the rights of the individual Member.

Make no mistake: any Member—any one of us—could potentially be in such a predicament; this highlights all the more vividly the importance of my duty to safeguard the rights of each and every Member and of my potential inability to do so without the proper mechanisms in place.

Therefore, in the absence of statutory guidance, should a Standing Order mechanism be developed to guide the Chair in such cases?

To answer that question, I believe it would be helpful to the whole House, and to me as Speaker, if the Standing Committee on Procedure and House Affairs were to examine the issue with a view to incorporating in our Standing Orders provisions on how the Chair and the House ought to deal with such matters in the future. The Committee might begin by looking at the lack of a clearly defined process for communications on these matters between the Chief Electoral Officer and the Speaker and between the Speaker and the House. This would fall squarely within the mandate of this committee, which is charged, pursuant to Standing Order 108(3),^[7] with “the review of and report on all matters relating to the election of Members to the House of Commons”.

If the Committee were to proceed in this manner, the Chair believes the sub judice convention would not be breached as the deliberations would not reach into the substance of the disputes themselves. Rather, they would focus on the processes that the Speaker could follow in these cases while remaining true to his fundamental duty as Speaker to act as the guardian of the individual rights and privileges of each Member while safeguarding the rights and privileges of the House as an institution.

This would be in keeping with the ruling made by Speaker Sauvé on March 22, 1983, in which she stated that:

...the sub judice convention has never stood in the way of the House considering a prima facie matter of privilege vital to the public interest or to the effective operation of the House and its Members.

For his part, in remarking that he had a certain appreciation of the Speaker’s position in the absence of any guidance at all, either from the statute or from the Standing Orders, as to how to execute the provisions of subsection 463(2) of the Act, the Member for Toronto—Danforth came to a conclusion with which I can entirely agree, namely:

…this honourable House cannot function without the Speaker and the House as a whole working in concert....

It seems evident to me that the lack of a clear process is not satisfying the needs of the House nor indeed of the individual Members concerned.

As always, in deciding on questions of privilege, the Speaker’s role is well defined—some might even say constrained—as it is limited to determining if, at a first glance, the matter appears to be of such significance as to warrant priority consideration over all other House business.

In the present case, circumstances are significantly different from those of the 1966 case relied upon by the hon. Member for Avalon. However, the Chair is faced with the fact that some have argued that it is just and prudent to continue to await the conclusion of legal proceedings, while others have maintained that the two Members ought, even now, not to be sitting in the House.

I believe that the House must have an opportunity to consider these complex issues. This approach is founded on an ancient practice summarized in a section of Bourinot’s, Fourth Edition, found at pages 161 and 162 of that work, where it states:

In the Canadian as in the English House of Commons, “whenever any question is raised affecting the seat of a Member, and involving matters of doubt, either in law or fact, it is customary to refer it to the consideration of a committee”.

Accordingly, the Chair has concluded that there is a prima facie case of privilege here.

I would now like to return to the issue of the letters I have received from Elections Canada on these cases. As I said before, the Speaker generally tables documents in accordance with statutory requirements or the Standing Orders. Outside of the sorts of documents enumerated in O’Brien and Bosc, at pages 435 and 436, the Chair is not aware of any precedent or practice that would suggest that letters to the Speaker, even letters from an officer of Parliament, are de facto letters to the House, as has been suggested.

However, I cannot logically come to the conclusion that this situation warrants immediate consideration by the House, without also ensuring that the House has access to the letters from the Chief Electoral Officer to me on the situation. The Chair would welcome recommendations from the Standing Committee on Procedure and House Affairs and the House’s clear directions on how these issues must be handled in the future.

Meanwhile, I will make available the letters I received from the Chief Electoral Officer informing me of the application of the provisions of subsection 436(2) of the Canada Elections Act and the letters I received informing me that applications to the courts had been made for relief from these provisions. I am also prepared to make available correspondence that I might receive from the Chief Electoral Officer in future cases that may arise in like circumstances. I also wish to advise the House that, just today, I have received a letter from the Chief Electoral Officer informing me that the Member for Saint Boniface has since provided a corrected return as required by the Canada Elections Act.

In summary, then, to bring clarity to the situation at hand and to give the House a voice on the matter and to seek its guidance, the Chair has concluded that immediate consideration of the matter by the House is warranted.

In view of the circumstances brought to the attention of the House regarding the situation of the Member for Avalon, I now invite the Member for Beauséjour, who has raised an identical question of privilege, to move the appropriate motion.

Postscript

On June 18, 2013, Mr. LeBlanc moved the appropriate motion, as Mr. Andrews was absent from the House, that the question of privilege be referred to the Standing Committee on Procedure and House Affairs. The debate began on the motion, but was adjourned.^[8] The House then adjourned for the summer and on September 13, 2013, the First Session of the Forty-First Parliament was prorogued.

On October 17, 2013, at the beginning of the Second Session of the Forty-First Parliament, Craig Scott (Toronto—Danforth) raised the same question of privilege. The Speaker immediately ruled that this was still a prima facie question of privilege and, accordingly, Mr. Scott moved that the matter be referred to the Standing Committee on Procedure and House Affairs. The motion was agreed to without debate.^[9]

On October 2, 2014, the Committee presented its Nineteenth Report to the House.^[10] The Committee stated that it was satisfied that the amendments made to the Canada Elections Act by the adoption of Bill C-23, An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts (Fair Elections Act), given Royal Assent on June 19, 2014, would provide a greater opportunity for a resolution to occur between Elections Canada and an elected candidate concerning a disputed electoral campaign expense or campaign return. In addition, the Committee recommended a mechanism by which a letter received by the Speaker of the House, relating to subsections 477.72(2) and (4) in Bill C-23, should be communicated to Members of the House of Commons. In the Report, the Committee also agreed to further study the possible need of an amendment or amendments to the Standing Orders in respect of the process for communications on such matters between the Chief Electoral Officer and the Speaker and between the Speaker and the House. The Report was not concurred in.