Memorandum by the Legislative Assembly
There is no Ontario counterpart to Maingot.
Our body of knowledge on and experience with
privilege is meagre compared to larger Commonwealth Parliaments.
Speakers' rulings on privilege constitute the
single most important "Ontario-specific" body of knowledge
on privilege. We also rely on Beauchesne, Maingot, Erskine May,
Browning, what clerks from other Parliaments tell us about how
a privilege issue would be resolved in their respective jurisdictions,
court decisions, and ad hoc commission reports.
We have never undertaken the kind of wide-ranging
review of privilege that you are undertaking.
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
We have never examined these kinds of questions
in the comprehensive way you are examining them.
There is some discussion in Maingot and certain
court decisions that the privileges that apply in one Canadian
parliamentary jurisdiction might not apply to other Canadian jurisdictions.
To date, we have not had occasion to be overly concerned about
A 1981 decision of the Supreme Court of Canada
indicated that Article 9 of the Bill of Rights applied to Canada.
Since the Canadian Charter of Rights and Freedoms became part
of the Canadian constitution in 1982, a court has yet to determine
the extent to which Article 9 remains the law in Ontario or how
it is to be reconciled with the fundamental rights and freedoms
that have been enshrined in the Charter.
Members have statutory immunity from civil actions
pursuant to section 37 of the Legislative Assembly Act.
We do not have much experience with respect
to the privilege implications attendant to the revelation of official
secrets. (Ottawa may be of more assistance to you in this regard.)
However, we draw your attention to the following points:
(1) The Speaker has sometimes found the premature
release of a draft committee report to be grounds for establishing
a prima facie case of privilege.
(2) Various Speakers have ruled that the
premature release of a confidential Budget document does not amount
to a prima facie case of privilege.
(3) In 1991, during the course of an exchange
in Oral Question Period, the Minister of Health inadvertently
released the name of someone being treated by an Ontario doctor.
(Under our Freedom of Information and Protection of Privacy Act,
a Minister is required to keep the names of such patients confidential.)
At the time of the incident, the Speaker had ruled that there
was no point of privilege but that he would look into the matter
and report back to the House. In the wake of the Minister's resignation
later the same day, the Speaker did not report back to the House.
QUESTION 2 ARE
We are attaching (see Appendix A) a copy of
the Legislative Assembly Act, RSO 1990, c L10 (as amended); I
refer you in particular to sections 35 to 59.
We are also attaching (see Appendix B) a copy
of the Standing Orders of the Legislative Assembly of Ontario;
I refer you in particular to SO 21.
In the sense that the House passes and (from
time to time) alters the Standing Orders by way of an Order of
the House, the House controls its own procedure.
Other aspects of our parliamentary procedure
can be found in the following places:
(1) the Canadian constitutionfor example,
section 87 of the Constitution Act, 1867 (see Appendix C) and
section 45 of the Constitution Act, 1982 (see Appendix D)which
can be amended by way of the mechanism delineated in the constitution,
(2) provincial Actsespecially the
above-mentioned Legislative Assembly Actwhich can be amended
by an Act of the Ontario Legislature.
The short answer to your question is that the
Speaker has jurisdiction over the precincts, which comprises the
Legislative Building, the legislative grounds, the first three
floors and part of the basement of an adjacent government-owned
building known as the Whitney Block, and the underground tunnel
between the Legislative Building and the Whitney Block. (To this,
we should add that the Speaker does not control those parts of
the Legislative Building that house the Premier's Office and the
Lieutenant Governor's suite.) The Speaker has control over staffing
and administration, although it should be noted that the appointment
and/or dismissal of some of the Assembly's officers are not matters
within the sole prerogative of the Speaker or the House. The longer
answer to your question follows.
In 1972, the Ontario Commission on the Legislature
(the Camp Commission) was established to review the operations
and effectiveness of the Ontario Legislature. The Commission was
of the view that the administration of the Ontario Legislature
had not developed along lines that confirmed and implemented the
ideal of a legislature independent in all respects from the government.
As a result of its recommendations, the Legislative Assembly Act
was amended to create the Office of the Assembly, a non-partisan
entityseparate and distinct from the government and its
civil servicethat provides administrative and procedural
support to the Assembly. All financial and administrative policy-making
functions were given to the Board of Internal Economy, also created
by amendments to the Legislative Assembly Act. This Board is chaired
by the Speaker, although a majority of its members are government
members pursuant to section 87(1) of the Legislative assembly
The Camp Commission contended that the independence
of the Legislature would be incomplete as long as the government
physically controlled the precincts of the legislature. By 1998,
the Assembly was actively seeking fuller responsibility for the
legislative building and precincts, and the freedom to independently
contract back from government, or contract out to private suppliers,
various facility management services (eg building maintenance,
custodial services, groundskeeping, laundry, etc). That year,
the Office of the Assembly and the Ministry of Government Services
signed a Memorandum of Understanding in which the Assembly finally
acquired physical control of the Legislative Building and its
precinctsthat is, the entire Legislative Building, the
grounds on which the building sits, and the first and second floors
of an adjoining building known as the Whitney Block. The MOU was
amended in 1993 to expand Assembly control to the third floor
and parts of the basement. (See Appendix E for a copy of this
Memorandum of Understanding.) It should be noted that "control"
does not mean "ownership"; the issue of ownership of
the Legislative Building and the legislative grounds is a complicated
one which we are only now beginning to examine more closely.
In 1992 the Assembly assumed control of security
within the legislative precincts. A Memorandum of Understanding
was signed with the Ministry of the Solicitor General for the
provision of security services. In 1996, the Standing Committee
on the Legislative Assembly reviewed the question of security
and recommended that the Assembly have its own, independent, stand-alone
security service. As a result, the security services previously
contracted from the Ontario Provincial Police and the Ontario
Government Protective Service were assumed by the Assembly, which
created its own Legislative Security Service. Matters of security
(eg policy-making, policy implementation, recruitment) are now
under the control of the Assembly, with the Speaker and the Sergeant-at-Arms
having the most prominent role. See sections 103 and 104 of the
Legislative Assembly Act.
As a matter of policy, the Assembly has a reciprocal
agreement with the public service wherein the seniority and pension
rights of employees of the one employer are honoured by the other;
employees transferring into the Assembly from government service,
and vice versa, will have their service records transferred to
and accepted by the new employer.
Recent court cases have served to develop issues
related to the special nature of the parliamentary precincts.
In 1996, during the labour dispute between the government and
its unionised employees, the Legislative Building became the venue
for picketing and demonstrations by the strikers against their
employer. The strike began when the House was in recess; as the
date neared for the House to resume sitting, it became apparent
that an effort might be made to prevent members from entering
the Legislative Building; in fact, this did occur. On the day
that the House returned from its recess, the Speaker sought and
obtained an injunction which prohibited anyone from restricting
access to or egress from the Legislative Building or the Whitney
Block with respect to members or essential staff (who were designated
with a yellow sticker on their employee identification passes).
The application for the injunction was premised on the basis of
parliamentary privilege, viz the absolute right of members to
attend meetings of the Assembly without any obstruction, and the
need for essential staff. (See Appendix F for a copy of the reasons
for the court decision granting the injunction.)
The events of this day also gave rise to a government-appointed
commission of inquiry because violent confrontations had occurred
when police and demonstrators/strikers clashed as members sought
to enter the Legislative Building. The events themselves are less
important than the issues raised by the establishment of the commission:
while the Assembly co-operated with it by making witnesses and
papers available, could the Assembly have been compelled to co-operate
with the commission if it had decided not to co-operate? Moreover,
the commission made recommendations relating to the provision
and control of security services at the legislative precincts
which, if implemented, would have fundamentally altered or reversed
the arrangements (described above) which the Assembly had worked
for two decades to secure. These recommendations were not all
that profound because the Assembly had long since begun a review
of security in the precincts and had begun implementing the recommendations
of a standing committee report on the subject.
A recent labour relations case (the Soth decision)
involved a terminated employee who sued for wrongful dismissal.
(See Appendix G.) The Assembly successfully defended the suit
by claiming that the ability of the House to meet was dependent
upon the Speaker, as employer, having the freedom to staff the
Office of the Assembly as he or she deemed necessary to ensure
that the parliamentary functions of members could be discharged.
In dismissing the suit, the court stated that employees of the
Assembly are in a master-servant relationship because parliamentary
privilege required that the Speaker should have unfettered and
unencumbered control over the administration of the Assembly.
QUESTION 5: DOES
Although the Assembly occasionally claims that
a certain parliamentary privilege exempts it from the general
lawthe above-mentioned Soth decision is a case in pointthe
operations of the Assembly are generally administered and discharged
in a manner that does not cause the Assembly's privileges to come
into conflict with the general law.
Although the Legislative Assembly Acta
public statuteis itself part of the "general law",
it also has provisions that exempt the Assembly from the general
lawfor example, members' freedom from civil arrest or service
of civil process, conditions of employment for various Assembly
officers, and grievance procedure for terminated employees.
Although the Freedom of Information and Protection
of Privacy Act, RSO 1990, c F31 (as amended) does not apply to
the Assembly, the Office of the Assembly generally abides by it;
members and caucuses are also exempt and may comply if they wish.
Sections 46, 47 and 48 of the Legislative Assembly
Act deal with contempt, but we cannot recall when a member of
the public has been punished for contempt, and there are no Ontario
court cases that have tested the limits and constitutionality
of these statutory provisions.
Our preferred modus operandi for handling situations
that might be dealt with by way of contempt is to use other measures.
(1) If there were obstreperous behaviour
in the public galleries, our internal security service would initially
remove the disorderly spectators from the gallery and (if required
by security protocol) hand them over to the municipal police force
for possible detention and arrest.
(2) If members and staff of the Assembly
were to experience difficulty in physically accessing the Legislative
Building because of a large demonstration on the legislative grounds,
there would be even greater co-operation between our internal
security service and the municipal police force to ensure that
members could carry out their parliamentary responsibilities.
(3) As indicated in the answer to question
4, in the course of a demonstration sponsored by a civil service
union whose members were on a legal strike in 1996, we applied
to a court forand successfully securedan interlocutory
injunction to allow members and staff to have unobstructed access
to and egress from the Legislative Building and an adjacent building
that housed members and staff of the Assembly.
In 1981, the Ontario Law Reform commission released
its Report on Witnesses. (See Appendix H.) We draw to your
attention pages 45 to 53 of that report, which discusses the contempt
power. Please note that the report was published before the coming
into force of the Canadian Charter of Rights and Freedoms, which
gives greater protection to certain fundamental rights and freedoms
than was the case in the pre-Charter era.
We cannot recall a recent case when a member
of the public has been punished for contempt. The closest our
House has ever come to punishing a member of the public for contempt
was in 1992 when an individual refused to appear before a standing
committee of the House pursuant to a Speaker's warrant. The committee
reported to the House as follows:
"It is your Committee's view that the conduct
of Keith Harfield constitutes a contempt of the Committee, of
the Warrants of the Speaker, and of the Legislative Assembly.
In particular, the committee is of the opinion that Keith Harfield
has breached Sections 46(1)6 and 46(1)7 of the Legislative Assembly
Act, RSO 1990, c L10.
Your Committee therefore recommends
That the House find Keith Harfield in contempt; and
That the House direct the Speaker to issue a public
admonishment to Keith Harfield . . . , reprimanding him for contemptible
conduct in response to legitimate requests of the Standing Committee.
The House did not take any action on the report.
(See Appendix I for a copy of the report.)
We draw to your attention two other situations,
(1) The last time a member of the public
was called before the Bar of the House was in 1903. Following
delivery of an abject apology by the offender (a journalist who
had written and sent "an insulting and grossly improper communication"
to a member), the Speaker accepted the apology on behalf of the
House "and, regretting its occurrence, hoped that such a
breach of the privileges of the House would not again happen."
Although our Journals have the Speaker saying that there was a
breach of the privileges of the House, the Journals do not indicate
that the House had actually decided that there had been a breach
of privilege. (See Appendix J.)
(2) In January 1997, the Speaker delivered
a ruling dealing with a government pamphlet that promoted proposed
legislative reforms to municipal governance in Toronto. In finding
that a prima facie case of contempt had been established,
the Speaker made the following remarks about the "unqualified
claims" in the pamphlet:
Following the ruling, the House debated and
subsequently defeated a motion to censure the government for "its
contemptible advertising campaign."
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?
Section 46(1) of the Legislative Assembly Act
states that the Assembly "has all the rights and privileges
of a court of record for the purposes of summarily inquiring into
and punishing" certain offences. There is not sufficient
legislative or juridical experience to test the full meaning of
the particular wording in regards to the Assembly's jurisdiction.
In affirming the authority of the Assembly,
section 46(1) presents a list of offences which may be considered
"as breaches of privilege or as contempts". The ambivalent
wording of section 46(1) does not clearly indicate which of the
offences set out in its 12 paragraphs are matters of privilege
and which are contempts. Nor does the section provide an exhaustive
list of offences that may be considered as contempts.
See also our answer to question 6.
We have never really had a problem, but we draw
the following matterswhich do not deal exclusively with
committee documentsto your attention:
(1) Sections 50 to 52 of the Legislative
Assembly Act appear to envisage that a court could consider committee
(2) The above-mentioned commission of inquiry
into various security related incidents in 1996 examined the Assembly's
internal security apparatus.
(3) From time to time, various Assembly employees
have been subpoenaed to testify in court. For example, in 1997
a Hansard reporter was subpoenaed to testify before a criminal
court at the trial of a member accused of assaulting a security
guard in a government building. The Hansard reporter was
sought to be examined on her recollection of a verbal exchange
in the House touching on the Attorney General's remarks in the
House about the alleged assault. The Assembly did not contest
the validity of the subpoena. (In the end, the reporter was never
actually called upon to testify.)
(4) From time to time, various internal Assembly
documents are the subject of litigation, especially labour relations
MP OR A
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?
Paragraph 3 of section 46(1) of the Legislative
Assembly Act contains a provision relating to bribery, but we
have no modern experience with the provision. It is an interesting
issue as to whether this provision in intra vires the Ontario
Legislature on the ground that criminal laws and sanctions on
bribery are within the exclusive constitutional jurisdiction of
the federal Parliament; in fact, the federal Parliament has passed
a criminal law on the subject of bribery.
See also our answer to question 7.
There are miscellaneous provisions dealing with
corruption in sections 41 and 44 of the Legislative Assembly Act.
We have no specific procedure for "waiving
privilege" when a member is charged with an offence relating
to his or her parliamentary duties.
We have statutory provisions covering some aspects
of this questionsee sections 37, 38, 39, and paragraphs
10, 11 and 12 of section 46(1) of the Legislative Assembly Act.
With respect to the complex issue of waiver
of immunity, neither the House nor the Speaker has been asked
for or has given formal authority to waive any right of immunity.
For your information, we are attaching documentation
relating to the issue of privilege and waiver of privilege in
the context of the Speaker's decision to voluntarily testify before
the above-mentioned commission of inquiry into security related
incidents in 1996. (See Appendix K and Appendix L.)
An attempt to serve a subpoena in the precincts
of Parliament on a member would be regarded as a contempt. In
this regard, see sections 39, and paragraph 12 of section 46(1)
of the Legislative Assembly Act.
These provisions became part of the Legislative
Assembly Act in 1988 in the wake of an April 1987 report dealing
with the service of civil process on a member in a committee room
of the Legislative Building while the committee was actually meeting.
The report concluded that such an action did indeed constitutue
a contempt of the House and went on to state that:
A member is immune from service within the precincts
of the House by virtue of a privilege enjoyed by the House in
its corporate capacity on the ground that the service, or attempted
service, of process in the precincts of the House is a violation
of the dignity of, and an insult to, Parliament and an abuse of
the privilege of admission to the precincts extended to persons
by the House.
Since the occurrence of the incident that gave
rise to this committee report, and the passage of the amendment,
we cannot recall that there has been non-compliance with section
39 by process servers.
It should be noted that section 39 does not
differentiate between sitting and non-sitting days.
SO 15 codifies the authority of the Speaker
and the House to suspend named members. In the past four years,
the Speaker has named not fewer than six members per year, the
result being that the named members were ordered to withdraw from
the House for the balance of the day; on rare occasions, a named
member has been suspended for one of the longer periods mentioned
in SO 15(b)(c).
There is no explicit statutory provision giving
the House or the Legislature the authority or power to suspend
or expel a member. It is unclear whether section 53 of the Legislative
Assembly Act supports a claim that the House has the authority
Unlike the situation in other Canadian legislaturesthe
House of Commons, Saskatchewan and Novia Scotia come to mindour
legislature has never expelled a member in recent times. In fact,
the only precedent in our records is an 1884 Order of the House
declaring vacant the seat of a member "by reason of (his)
incurable mental condition", and authorising a writ of election
for the vacated seat. (See Appendix M.)
There is some interesting recent literature
on expulsion in the Canadian contextfor example, Gwenn
Ronyk's article in the Table (vol 53, 1985, pp. 43-50) and John
Holtby's article in the Canadian Parliamentary Review (spring
1987, pp 12-14).
There are no general statutory provisions in
the Legislative Assembly Act, although sections 16(1) and 43 of
that Act provide for fines for certain specific situations.
There is no Standing Order on fining of members.
There is no such provision in the Legislative
Assembly Act or in our Standing Orders.
There is no such Standing Order, but a law reform
commission report has considered the issue. (See Appendix H.)
From time to time, a Committee Chair will issue a caution to a
witness. (See Appendix N.)
See paragraph 5 of section 46(1) of the Legislative
Assembly Act. We are not aware of any case in which this provision
has been applied.
Is perjury before the legislature or a committee of the legislature
punished by the Courts, or is it punished by the legislature as
See paragraph 6 of section 46(1) of the Legislative
Assembly Act. We cannot recall when perjury before the House or
a committee has been punished by the House or the courts.
Is there statutory provision to give absolute privilege to papers
published under the authority of the legislature?
See section 50 of the Legislative Assembly Act.
Do you have a "freedom of information Act"? Does it
apply to the legislature in any respect?
See the answer to question 5.