Rules of Debate / Sub Judice Convention

Supreme Court of Canada

Debates pp. 8793-4

Background

On March 30, following Question Period, Mr. Clark (Leader of the Opposition) rose on a point of order to ask the Chair to apply the sub judice convention to the constitutional resolution presently before the House. He claimed that if the Canadian Government had sent the question of the legality of the said resolution to the Supreme Court, Parliament would be precluded from discussing the question. In the present case, the question and court are the same; the only difference is that a province has referred the question to the highest court under its jurisdiction and then, under appeal, to the Supreme Court. Mr. Clark therefore maintained that the House could not adopt the constitutional resolution as long as the Supreme Court had not ruled. After hearing Members' comments, the Speaker took the matter under consideration and gave a ruling the next day.

Issue

Does the sub judice convention apply to this case?

Decision

No. The convention does not apply to this case and the Speaker is not empowered to rule on the constitutionality of measures before the House.

Reasons given by the Speaker

Only the House can decide whether to discontinue or not to initiate a debate. Whatever the practice followed, the sub judice convention does not apply when studying bills, that is while the House is involved in the legislative process, otherwise, it would mean that the Courts could bring parliamentary proceedings to a halt. Now, the resolution presently under consideration constitutes an element of the legislative process since it involves constitutional revision and the address contains the proposed bill. Moreover, precedents indicate that the House can discuss subjects of national interest even if they are awaiting or are under adjudication by the civil courts. It is evident that the resolution presently under consideration constitutes a subject of national interest. Finally, according to certain authorities, the Chair must not use its discretionary powers to invoke the sub judice convention except in exceptional cases where it is clear to the Speaker that to do otherwise could be harmful to specific individuals.

Sources cited

United Kingdom, Bill of Rights of 1688.

Act of the Parliament of Canada (1875) 38-39 Victoria, chap. 38.

Journals, July 8, 1969, pp. 1319-20; October 4, 1971, pp. 847-8.

Debates, February 11, 1976, p. 10844.

Special Committee on Rights and Immunities of Members, First Report, April 29, 1977, Issue No. 1, p. 12.

May, 19th ed., pp. 333, 368, 427.

References

Debates, March 27, 1981, pp. 8694, 8718; March 30, 1981, pp. 8738-56.