Parliamentary Privilege First Report


Memorandum by the Legislative Assembly of Ontario

GENERAL OBSERVATIONS ON THE SUBJECT-MATTER OF THE SURVEY

  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.

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?

  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 such differences.

  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 THERE ANY STATUTES OR OTHER PROVISIONS DEFINING YOUR PRIVILEGES? MAY WE SEE THEM?

  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.

QUESTION 3:   DO YOU HAVE EXCLUSIVE CONTROL OVER YOUR PROCEDURE (IN YOU ABILITY TO MAKE STANDING ORDERS FOR EXAMPLE?)

  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 constitution—for 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, and

    (2)  provincial Acts—especially the above-mentioned Legislative Assembly Act—which can be amended by an Act of the Ontario Legislature.

QUESTION 4:   DO YOU HAVE EXCLUSIVE CONTROL OVER THE BUILDINGS IN WHICH THE LEGISLATURE MEETS AND OVER ITS STAFFING AND ADMINISTRATION?

  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 entity—separate and distinct from the government and its civil service—that 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 Act.

  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 precincts—that 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 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?

  Although the Assembly occasionally claims that a certain parliamentary privilege exempts it from the general law—the above-mentioned Soth decision is a case in point—the 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 Act—a public statute—is itself part of the "general law", it also has provisions that exempt the Assembly from the general law—for 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.

QUESTION 6:   CAN YOU PUNISH A MEMBER OF THE PUBLIC FOR A "CONTEMPT OF PARLIAMENT?" IS THERE ANY APPEAL TO A COURT?

  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. For example:

    (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 for—and successfully secured—an 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

      (1)  

      That the House find Keith Harfield in contempt; and

      (2)  

      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, as follows:

    (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:

      "In my opinion, they convey the impression that the passage of the requisite legislation was not necessary or was a foregone conclusion, or that the Assembly and the Legislature had a pro forma, tangential, even inferior role in the legislative and law-making process, and in doing so, they appear to diminish the respect that is due to the House.

      I say in all candour that a reader of that document could be left with an incorrect impression about how parliamentary democracy works in Ontario, an impression that undermines respect for our parliamentary institutions."

  Following the ruling, the House debated and subsequently defeated a motion to censure the government for "its contemptible advertising campaign."

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?

  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.

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)?

  We have never really had a problem, but we draw the following matters—which do not deal exclusively with committee documents—to your attention:

    (1)  Sections 50 to 52 of the Legislative Assembly Act appear to envisage that a court could consider committee proceedings.

    (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 litigation.

QUESTION 9:   THE UNITED KINGDOM GOVERNMENT MAY INTRODUCE LEGISLATION ON CORRUPTION WHICH, AS PART 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?

  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.

QUESTION 10:   IS THERE ANY PROCEDURE FOR "WAIVING PRIVILEGE" WHEN A MEMBER OF THE LEGISLTURE IS CHARGED WITH AN OFFENCE RELATING TO HIS OR HER PARLIAMENTARY DUTIES?

  We have no specific procedure for "waiving privilege" when a member is charged with an offence relating to his or her parliamentary duties.

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?

  We have statutory provisions covering some aspects of this question—see 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.)

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?

  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.

QUESTION 13:   CAN THE LEGISLATURE SUSPEND OR EXPEL ONE OF ITS MEMBERS?

  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 to expel.

  Unlike the situation in other Canadian legislatures—the House of Commons, Saskatchewan and Novia Scotia come to mind—our 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 context—for 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).

QUESTION 14:   HAS THE LEGISLATURE THE POWER TO FINE? HAS IT EVER USED THE POWER?

  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.

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 such provision in the Legislative Assembly Act or in our Standing Orders.

QUESTION 16:   DO YOU HAVE PROVISIONS IN STANDING ORDERS OR ELSEWHERE FOR THE PROTECTION OF WITNESSES WHO APPEAR BEFORE PARLIAMENTARY COMMITTEES?

  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.)

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?

  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.

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?

  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.

QUESTION 19:   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.

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

  See the answer to question 5.


 
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Prepared 9 April 1999