Memorandum by the House of Assembly of
QUESTION 1: ARE
ARTICLE 9 OF
1689 EXPRESSLY OR
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
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,
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
". . . 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
I cannot answer your question respecting the
disclosure of official secrets, because Nova Scotia has no legislation
respecting the disclosure of official secrets.
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".
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.
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.
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
The general law applies within the precincts
of the House of Assembly, except to the extent that it is modified
by partliamentary privilege.
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.
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.
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.
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.
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.
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.
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
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).
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
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.
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.
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.
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
(2) Subsection (1) applies whether
or not a statement referred to in that subsection is made in a
(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).
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
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.
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:
(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
(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
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