44th Parl. 1st Sess.
October 16, 2023 11:00AM
- Oct/16/23 4:18:07 p.m.
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Mr. Speaker, I rise on a question of privilege. Let me begin by emphasizing that I have deep respect for the Speaker's office and for parliamentary procedure. Every point contained herein is made out of a desire to uphold the rules of Parliament and to bolster public faith in Canada's democratic institutions.
With that said, I am rising today on a question of privilege concerning the disclosure outside of the House, by the Speaker's office, of your decision to recuse yourself from the pending ruling on the question of privilege which I had raised before Thanksgiving. It is an established convention that the House has the first right to information concerning certain House of Commons business, such as the content of bills and committee reports presented to the House, failure of which is a breach of the House's privileges. It will be my argument that this situation is equivalent to one of those cases.
While the events in question arose as a consequence of my previous question of privilege, this disclosure outside the House is, I believe, a separate and discrete incident giving rise to a separate and discrete question of privilege and requiring a separate decision on its own merits. In my original question of privilege, I argued that it is both inappropriate and impossible for a Speaker to recuse themself from ruling on a question of privilege in which they have some involvement. That involvement, of course, turned on your signature, Mr. Speaker, as parliamentary secretary to the Prime Minister, which understated the cost to taxpayers of the Prime Minister's Montana vacation this spring by over $200,000. I argued that, in circumstances where the Speaker has some involvement in the matter, the only appropriate recourse available is for the House itself to exercise the Speaker's screening function on a question of privilege as part and parcel of its deliberations on a privilege motion.
I would incorporate the same position and argument into the present question of privilege, where responsibility for the disclosure has been attributed to your office. In short, I believe that you also, Mr. Speaker, must refer this matter to the House.
As for the facts of this matter, on the afternoon of Friday, October 6, you emailed me to inform me that “as of early this morning”, you had recused yourself from my original question of privilege. What might have been considered, possibly, a personal and confidential heads-up about a forthcoming statement you would make to the House, turned out not to be. Despite your decision having been made in the morning, no announcement of this was made in the House.
Further, almost immediately after I received your email, which appeared above a signature block identifying you as the parliamentary secretary to the President of the Treasury Board and the parliamentary secretary to the Minister of Health, I noticed that the news of your recusal was published on Twitter, or X, and then on a Substack blog entitled Political Watchdog, both purportedly run by a teenager named Nolan Stoqua. The Substack posting included the following comment: “The Speaker's office confirmed to Political Watchdog that the Speaker...will recuse himself from ruling on the Member for Calgary Nose Hill's question of privilege. The Speaker has asked that the Deputy Speaker consider the matter and determine the next steps, says the Speaker's office.”
The House sat that Friday, yet you did not make a statement about this so-called recusal. The Deputy Speaker, who presided over most of the day's sitting, similarly did not make any statement on your behalf before the House adjourned for Thanksgiving. The first time that members of the House would have officially learnt of this significant development was via a teenager's Twitter feed. This, I respectfully submit, raises serious questions about whether the privileges of the House may have been breached.
House of Commons Procedure and Practice, third edition, at page 81, explains that:
There are, however, other affronts against the dignity and authority of Parliament which may not fall within...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...is an offence against the authority or dignity of the House....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 its exercise of contempt power....In other words, the House may...consider any misconduct to be contempt and may deal with it accordingly. This area of parliamentary law is therefore extremely fluid and most valuable for the Commons to be able to meet novel situations.
Continuing at page 84, it reads, “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.”
The footnote which follows, footnote 125, points to the first in a series of precedents which I believe are most instructive in the present circumstances:
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.
While it is understood practice now that the contents of bills that are on notice must not be disclosed before introduction in the House, something which Speaker Regan described on June 8, 2017, at page 12,320 of the debates as “one of our oldest conventions”, it was nonetheless a novel situation when Speaker Milliken gave his ruling.
Just as the 2001 case would not have appeared in House of Commons Procedure and Practice, first edition, often known as “Marleau and Montpetit”, we will not find in Bosc and Gagnon any precedent concerning the matter I am raising today, but that is not a barrier to proceeding.
In reaching his landmark ruling, Speaker Milliken said, on March 19, 2001, at page 1,840 of the Debates:
with respect to material to be placed before parliament, the House must take precedence...The convention of the confidentiality of bills on notice is necessary, not only so that members themselves may be well informed, but also because of the pre-eminent rule which the House plays and must play in the legislative affairs of the nation.
Thus, the issue of denying to members information that they need to do their work has been the key consideration for the Chair in reviewing this particular question of privilege. To deny to members information concerning business that is about to come before the House, while at the same time providing such information to media that will likely be questioning members about that business, is a situation that the Chair cannot condone.
The matter was then referred to the Standing Committee on Procedure and House Affairs, which subsequently concluded in its 14th report in the first session of the 37th Parliament, “Such an action impedes, obstructs, and disadvantages Members of Parliament in carrying out their parliamentary functions. In all of these circumstances, the Committee has come to the inescapable conclusion that the privileges of the House [of Commons] and of its Members have been breached in this case.”
Just as the House has a pre-eminent position in the legislative affairs of the nation, it holds no lesser place when it comes to the law of parliamentary privilege. Bosc and Gagnon remind us, at page 76, “Matters that fall within parliamentary privilege are for the House alone to decide.”
The procedure and House affairs committee added, at page 3 of its 42nd report in the first session of the 41st Parliament, “Parliament is the sole judge of the appropriateness of the exercise of any of its privileges.” The House concurred in this report and its view, which I quoted, on December 2, 2013.
The Supreme Court of Canada shares the view at paragraph 9 of its unanimous 2005 Vaid decision: “In other words, within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts”.
To hold such a place in our constitutional order is significant and must be treated with great respect. That, I would argue, means the House itself must be the first recipient of rulings and decisions related to its privileges, not outside media or teenagers' blogs.
As for context of the role the House holds, Bosc and Gagnon note, at page 62, “Parliamentary privileges were first claimed centuries ago when the English House of Commons was struggling to establish a distinct role for itself within Parliament. In the earliest days, Parliament functioned more as a court than as a legislature, and the initial claims to some of these privileges were originally made in this context.”
Erskine May, 25th edition, paragraph 12.1, adds, “The power to punish for contempt or breach of privilege has been judicially considered to be inherent in each House of Parliament not as a necessary incident of the authority and functions of a legislature (as might be argued in respect of certain privileges) but by virtue of their descent from the undivided High Court of Parliament and in right of the lex et consuetudo parliamenti.”
Put another way, when considering matters of privilege, the House is cloaked with the vestments of a court. In a court of law, one would imagine the decision of a judge, who has been asked to make certain decisions, not being provided to the parties equally and in public, but instead passed to a teenaged blogger, to be a scoop from a court clerk. However, that is effectively what happened before Thanksgiving when the “Speaker's office” provided a statement to a person ostensibly named Nolan Stoqua.
Via these actions, I believe the House's pre-eminent place in being the sole judge of its own privileges has been breached. The dignity and authority of the House has been negatively affected by this.
To further this point, colleagues who had indicated that they had intended to come back to the House to make interventions on my original question of privilege and my call for your referral of the matter to the House were effectively denied the opportunity to do so.
Indeed, my colleague from New Westminster—Burnaby, the New Democratic Party's House leader, raised similar concerns in his intervention about this matter earlier today. He said that, even more frustrating, was the fact that the office confirmed this decision to a member of the media, in the case, an unverified blogger, and then did not inform the House as a whole or even the House leaders group.
He went on to say:
As the House of Commons Procedure and Practice states:
The Speaker is the servant, neither of any part of the House nor of any majority in the House, but of the entire institution....
He continued:
The responsibility of the Speaker is to the institution of Parliament and to the House of Commons as a whole, not to an individual member who raises a point and not to reporters who may be interested in the decisions taken by the Speaker. Providing more information to the media than to Parliament on matters that are fundamentally parliamentary in nature is really not acceptable.
In discussing how Speakers' rulings are delivered, House of Commons Procedure and Practice, our bible, further states:
Sometimes, a ruling is delivered quickly and with a minimum of explanation. At other times, circumstances do not permit an immediate ruling. The Speaker may allow discussion of the point of order before he or she comes to a decision. The Speaker might also reserve his or her decision on a matter, returning to the House at a later time to deliver the ruling.
He concluded:
It is clear that rulings are meant to be made in the House. There is no precedent for a Speaker doing otherwise, and the rule book does not contemplate otherwise.
I agree with my colleague from the NDP on this point. It should be considered in the deliberations on this potential breach of privilege.
I believe the appropriate course of action to determine whether a prima facie case of privilege exists when the Speaker has a conflict of interest, as when the Speaker's office is said to be at the heart of the actions in concern, is to simply turn the matter over to the House. An appropriate analogy lies, I would submit, in the circumstances of a chair of a committee when a question of privilege is being raised in that venue. Bosc and Gagnon elaborate on page 1060, stating:
The Chair of a committee does not have the power to rule on questions of privilege...If a member wishes to raise a question of privilege during a committee meeting, or an incident arises in connection with the committee’s proceedings that may constitute a breach of privilege, the committee Chair allows the member to explain the situation. The Chair then determines whether the question raised in fact relates to parliamentary privilege. If the Chair determines that the question does relate to parliamentary privilege, the committee may then consider presenting a report on the question to the House.
Accordingly, in closing, I believe the correct course of action on this matter is twofold: first, for you to refer this matter to the House for deliberation, given your personal involvement and your office's involvement in this matter; and, second, should the House agree with me that my concerns raised today in this new question of privilege constitute a breach, the matter can be referred to the appropriate committee to determine the appropriate remedy.
As such, I am prepared to move the motion.
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