Parliamentary Privilege First Report


Memorandum by the House of Assembly of Nova Scotia

ANSWER TO QUESTION 1:   ARE THERE ANY DIFFERENCES BETWEEN THE SCOPE OF THE PRIVILEGES OF YOUR PARLIAMENT COMPARED WITH THE NATIONAL PARLIAMENT? DOES ARTICLE 9 OF THE BILL OF RIGHTS 1689 EXPRESSLY OR IMPLICITLY APPLY TO YOUR LEGISLATURE? IS THIS INTERPRETED AS MEANING THAT A MEMBER'S IMMUNITY FROM AN ACTION FOR DEFAMATION IS ABSOLUTE IN RESPECT OF EVERYTHING SAID AND DONE IN THE PROCEEDINGS OF THE LEGISLATURE? DOES THIS EVEN EXTEND TO THE REVELATION OF OFFICIAL SECRETS IN DEBATE?

  Part of the written Constitution of Canada is contained in a United Kingdom Statute originally entitled the British North America Act, and now entitled the Constitution Act, 1867. Section 18 of that Act permits the Parliament of Canada to legislate what privileges it has, provided that the legislation does not confer privileges that exceed the privileges that the United Kingdom House of Commons had when the such legislation is passed.

  Purusant to this constitutional authority, the Parliament of Canada enacted what is now Section 4 of the Parliament of Canada Act, which provides that the Canadian Senate and House of Commons each have the same privileges as the United Kingdom House of Commons had when the Constitution Act 1867, was passed or as defined by any other Act of Parliament as long as they do not exceed whatever privileges the United Kingdom House of Commons had when any such Act is passed. The Nova Scotia Legislature then enacted what is now Section 26 of the House of Assembly Act, which provides that the Nova Scotia House of Assembly has the same privileges as the Canadian House of Commons. Thus, at present, the Nova Scotia House of Assembly has exactly the same privileges as the Canadian House of Commons and as the United Kingdom House of Commons had when the Constitution Act 1867, was passed.

  With respect to the application of the Bill of Rights 1689 to the Nova Scotia House of Assembly, I refer to the Reasons for Judgment of the majority of the Supreme Court of Canada in New Brunswick Broadcasting Ltd v Nova Scotia (Speaker of the House of Assembly). A copy of these Reasons is attached and marked "A", and you will note on page 10 the following passage:

    ". . . it is clear that, absent specific reference, the wording . . . should not be understood to refer to a specific article of the English Bill of Rights. This is not to say that the principles underlying article 9 of the English Bill of Rights of 1688 do not form part of our law and inform our understanding of the appropriate relationship between the courts and legislative bodies in Canada".

  With respect to absolute immunity in defamation actions, I refer to the Ontairo case entitled Roman Corp Ltd v Hudson's Bay Oil & Gas Co Ltd (1971), 18 DLR (3rd) 134 (Ont HC); (1972), 23 DLR (3rd) 292 (Ont CA) where it was held by both the Ontario High Court and the Ontario Court of Appeal that the privileges of the members of the Canadian House of Commons are a complete bar to a defamation action. As a result of this authority therefore, and since the privileges of the Nova Scotia House of Assembly are the same as those of the Canadian House of Commons, the privileges of a member of the Nova Scotia House of Assembly would constitute an absolute bar to an action for defamation.

  I cannot answer your question respecting the disclosure of official secrets, because Nova Scotia has no legislation respecting the disclosure of official secrets.

ANSWER TO QUESTION 2:   Are there any statutes or other provisions defining your privileges? May we see them?

  The privileges of the Nova Scotia House of Assembly are defined in the provisions of the Constitution Act 1867 and the Parliament of Canada Act mentioned earlier and in Sections 26, 27 and 28 of the House of Assembly Act. Copies of this legislation are attached and marked "B", "C" and "D".

ANSWER TO QUESTION 3:   Do you have exclusive control over your procedure (in you ability to make Standing Orders for example?)

  The Nova Scotia House of Assembly has exclusive control over its procedure.

ANSWER TO QUESTION 4:   Do you have exclusive control over the buildings in which the legislature meets and over its staffing and administration?

  The House of Assembly, through its Speaker, has exclusive control over the building in which it meets.

ANSWER TO QUESTION 5:   Does the general law (eg on employment, office conditions) automatically apply within the parliamentary precincts; or does it only apply to the extent accepted by Parliament and/or the extent specifically provided in statute?

  The general law applies within the precincts of the House of Assembly, except to the extent that it is modified by partliamentary privilege.

ANSWER TO QUESTION 6:   Can you punish a member of the public for a "contempt of Parliament?" Is there any appeal to a Court?

  The House of Assembly may punish a member of the public for "contempt of Parliament" and no appeal lies to the courts.

ANSWER TO QUESTION 7:   Have you codified those offences which are considered to be a contempt of Parliament? If not, can you give examples of cases where a member of the public has been punished for a contempt?

  There is no codification, but an example of an instance in which a member of the public was jailed for contempt by the House and the matter was litigated appears on the case entitled, Fielding v Thomas, which was before the Judical Committee in 1896. A copy of the Reasons for Judgment of the Judicial Committee in that case is attached and marked "E". Because of the Charter of Rights and Freedoms, which came into force in 1982, I doubt whether such a severe penalty would now be upheld by the Courts, although the power to inflict a punishment which is appropriate to the present situation still exists.

ANSWER TO QUESTION 8:   Are there any circumstances (eg where a parliamentary committee's responsibilities relate to the administrative management of the House or the letting of contracts) where the proceedings of such a committee can be considered by a Court (eg in a dispute over a contract)?

  I do not know of any litigation in Nova Scotia in which this question has arisen.

ANSWER TO QUESTION 9:   The United Kingdom Government may introduce legislation on corruption which, as prt of a general reform, will include an offence of bribery of an MP or a Peer.

    —  what statutory offence exists in relating to bribery of a member of the legislature?

    —  who authorises prosecution?

    —  are there circumstances where the Court can hear and examine evidence on what a member of the legislature has said and done in the course of proceedings?

    —  are there circumstances where a tribunal (or a Royal Commission) may do so either in circumstances where corruption is alleged, or in any other circumstances?

  (A)  Bribery of a member of the Nova Scotia Legislature is prohibited by Section 119 of the Criminal Code (Canada). A copy of this Section is attached and marked "F".

  (B)  A public prosecution for violating this Section would be taken by the Crown.

  (C)  I know of no litigation in Nova Scotia in which the question arose as to whether a court may consider evidence of what a member said or did during House proceedings.

  (D)  I know of no litigation in Nova Scotia in which the question of whether a Court or a Royal Commission may consider such evidence arose.

ANSWER TO QUESTION 10:   Is there any procedure for "waiving privilege" when a member of the legislature is charged with an offence relating to his or her parliamentary duties?

  A member of our Legislature may waive his or her privileges, but there is no particular procedure that is prescribed for doing so.

ANSWER TO QUESTION 11:   To what extent does privilege provide for immunity from arrest or from attendance, as a witness, or as a defendant in a civil suit, before a Court? Are any such immunities confirmed in statute? Does any immunity extend to attendance before tribunals (or Royal Commissions?) What limitations are placed on any immunity? Can a member of the legislature be served with a subpoena which requires him or her to appear in Court on a day when the legislature is sitting? Is any right of immunity exercised by the member without reference to the House or its Presiding Officer, or is authorisation required?

  (A)  Because of the answer to Question 1, the same immunities would apply in Nova Scotia as applied in the United Kingdom when the Constitution Act, 1867, was passed.

  (B)  Section 27 of the House of Assembly Act exempts a member of the Nova Scotia House of Assembly from liability to any civil action and from prosecution, arrest, imprisonment or damages by reason of any matter or thing brought by the member by petition, bill, resolution, motion or otherwise, or said by the member, before the House, and Section 28 of that Act provides that, except for a violation of that Act, no member of the House is liable to arrest, detention or molestation for any debt or cause whatever of a civil nature, during any session of the Legislature, or during the fifteen days preceding or the fifteen days following such session. In addition, clause 5(1)(c) of the Juries Act exempt members of the House of Assembly from jury duty. And there is, as mentioned in the answer to Question 1, the general provision contained in subsection 26(1) of the House of Assembly Act which gives the Nova Scotia House of Assembly the same privileges, immunities and powers as the House of Commons of Canada.

ANSWER TO QUESTION 12:   Can a member of the legislature be served with a subpeona in the precincts of Parliament on a sitting day? On a non-sitting day? Or would such service be regarded as a contempt?

  I do not know of any litigation in Nova Scotia in which the effect of the service of a legal process on a member of the Nova Scotia House of Assembly on the precincts of the House has arisen.

ANSWER TO QUESTION 13:   Can the legislature suspend or expel one of its members?

  Although I know of no litigation in Nova Scotia in which the question as to whether or not the House of Assembly may suspend a member arose, it has been held by the Nova Scotia Supreme Court in Maclean and Attorney General of Nova Scotia that the House may expel a member. A copy of the decision in that case is attached and marked "G" (See pages 121-122 of the decision).

ANSWER TO QUESTION 14:   Has the legislature the power to fine? Has it ever used the power?

  Because of the answer to Question 1, the Nova Scotia House of Assembly has the same powers to punish for contempt as the United Kingdom House of Commons had at the time the Constitution Act, 1867, was passed.

  I do not know whether the House has ever levied a fine.

ANSWER TO QUESTION 15:   Do you have provision for citizen's right of reply to what is said in Parliament? If so how is it implemented?

  There is no provision in Nova Scotia for a citizen's right of reply to what is said in the House of Assembly.

ANSWER TO QUESTION 16:   Do you have provisions in Standing Orders or elsewhere for the protection of witnesses who appear before parliamentary committees?

  A witness is immune to action for anything he or she says before a committee of the House of Assembly.

ANSWER TO QUESTION 17:   Are such witnesses protected against intimidation in respect of their evidence by statute? Or is this treated as a contempt of the legislature and punished by it?

  Such witnesses are protected against intimidation being treated as a contempt of the House, although I know of no instance where a person was punished for contempt of the House by reason of having intimidated a witness.

ANSWER TO QUESTION 18:   Is perjury before the legislature or a committee of the legislature punished by the Courts, or is it punished by the legislature as a contempt?

  I do not know of any instance in Nova Scotia where a person has been either prosecuted for perjury or punished by the House for contempt as a result of making a false statement to a committee of the House of Assembly.

  Section 131 of the Criminal Code (Canada) provides as follows:

      131  (1)  Subject to subsection (3), every one commits perjury who, with intent to mislead, makes before a person who is authorised by law to permit it to be made before him a false statement under oath or solemn declaration, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.

       (2)  Subsection (1) applies whether or not a statement referred to in that subsection is made in a judicial proceeding.

       (3)  Subsection (1) does not apply to a statement referred to in that subsection that is made by a person who is not specially permitted, authorised or required by law to make that statement.

  Section 118 includes a proceeding before a committee of a legislative assembly within the definition of "judicial proceeding" for the purposes of subsection (2).

ANSWER TO QUESTION 19:   Is there statutory provision to give absolute privilege to papers published under the authority of the legislature?

  Section 56 of the House of Assembly Act provides as follows:

      56  In any civil proceeding against any person for or on account or in respect of the publication of any copy of any report, paper, vote or proceedings of the House, the defendant at any stage of the proceedings may lay before the court or judge such report, paper, vote or proceedings, and such copy, with an affidavit verifying such report, paper, vote or proceedings, and the correctness of such copy, and the court or judge shall immediately stay such civil proceeding, and the same, and every originating notice, or process issued therein, shall be finally put an end to, determined and superseded.

ANSWER TO QUESTION 20:   Do you have a "freedom of information Act"? Does it apply to the legislature in any respect?

  Subsection 4(1) of the Freedom of Information Act makes that Act applicable to all records in the custody or under the control of a public body, including court administration records, and clause 3(j) provides as follows:

    (j)  "public body" means

      (i)  a Government department or a board, commission, foundation, agency, tribunal, association or other body of persons, whether incorporated or unincorporated, all the members of which or all the members of the management or board of directors of which

      (A)  are appointed by order of the Governor in Council,

      or,

      (B)  if not so appointed, in the discharge of their duties are public officers or servants to the Crown,

      but does not include the Office of the Legislative Counsel.

GENERAL COMMENT

  Since the Reasons for Judgment of the Supreme Court of Canada in the Donahoe case, which are attached and marked "A", form the most recent authoritative and exhaustive judicial pronouncement on the source and extent of the privileges of the members of the Nova Scotia House of Assembly, I commend it particularly to your close attention.

19 March 1998


 
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Prepared 9 April 1999