Memorandum by the National Assembly of
1. Are there any differences between
the scope of the privileges of the National Assembly 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?
The scope of the privileges of the National
Assembly of Quebec and that of the House of Commons of Canada
are essentially the same. Article 9 of the Bill of Rights with
regard to freedom of speech during meetings of the Assembly and
its committees applies implicitly, as the judgment Le Club
de la Garnison de Quebec c Lavergne ((1918), 27 RJQ 37) confirmed
many years ago. Section 44 of the Act respecting the National
Assembly states clearly that no action may be undertaken against
a Member in respect of proceedings in the National Assembly or
in one of its committees.
We believe this immunity to be absolute. It
also protects Members who reveal professional secrets in the Assembly,
as a decision rendered in the Assembly in November 1997 proves;
and we are of the opinion that it would likewise protect Members
of the National Assembly who revealed secrets as defined in the
federal Official Secrets Act.
2. Are there any statutes or other provisions
defining your privileges? May we see them?
Our reply to your initial invitation to submit
evidence regarding parliamentary procedure, which we sent you
by fax on 30 January 1998, was accompanied by the text of the
essential Quebec statutory provisions regarding parliamentary
privilege. Accordingly, we have not attached them to the present
We find, however, that we omitted to mention
the immunity from serving on a jury, which is provided in our
Jurors Act. Section 4(c) expressly disqualifies members
of the executive council (cabinet) and Members of the National
Assembly from serving as jurors. Section 5(a.1) of the same Act
provides that employees of the National Assembly may also be exempted
from serving as jurors.
3. Do you have exclusive control over
your procedure (in your ability to make Standing Orders for example)?
Yes. The privilege that confers on the Assembly
the power to regulate its internal affairs free from interference
is enunciated in section 9 of the Act respecting the National
Assembly, which provides as follows: "The rules of procedure
of the Assembly are established by the Assembly, and it alone
has authority to see that they are observed." No interference
by the common law courts is permitted.
4. Do you have exclusive control over
the buildings in which the National Assembly meets over its staffing
Yes. Moreover, internal security is assured
by a special detachment of the Quebec Provincial Police, and no
representative of an external police authority may enter the parliamentary
precincts on official business at any time without the express
authorisation of the Speaker of the Assembly.
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?
Section 110 of the Act respecting the National
Assembly answers this question. It provides as follows:
110. Subject to this Act,
the Assembly shall continue to be managed within the scope of
the Acts, regulations and rules applicable.
The Office (of the National Assembly*)
may, however, by regulation, derogate from the applicable Acts,
regulations and rules by specifically indicating the provisions
derogated from and the provisions that are to apply in their place
(*The Office of the National Assembly, created
in the Act respecting the National Assembly, is presided
over by the Speaker of the Assembly and comprises nine other elected
Members issuing from all of the political parties represented
therein. It is the Assembly's highest administrative authority.)
We should add that the Supreme Court of Canada
in New Brunswick Broadcasting Co v Novia Scotia (Speaker of
the House of Assembly) ((1993) 1 SCR 319) ruled that while
the Canadian Charter of Rights and Freedoms applies to
a provincial Assembly, it does not apply to an Assembly in the
exercise of its inherent privileges, which enjoy constitutional
status and are thus immune from abrogation or diminution by another
part of the Constitution.
6. Can you punish a member of the public
for a "contempt of Parliament"? Is there any appeal
to a Court?
Joseph Maingot is of the opinion that because
Canadian provincial Assemblies are constitutionally empowered
to grant themselves the same privileges as the federal Parliament,
they may punish contempts if they have expressly legislated such
powers for themselves (Le privile"ge parliamentaire au
Canada, deuxie"me e«dition, 1997, p 215), and that
the exercise of such privileges would not be reviewable by the
courts. The provisions of section 137 of the Act respecting
the National Assembly appear to grant the courts jurisdiction
for determining whether a stranger is guilty of contempt of Parliament,
leaving the Assembly itself unfettered competence to levy penalties
only on its own Members.
Notwithstanding Maingot's opinion and section
137 of the Act, we would note that section 2 of the same Act provides
2. The National Assembly and the Lieutenant-Governor
form the Parliament of Quebec. The Parliament of Quebec assumes
all the powers conferred on the Legislature of Quebec.
No provision of this Act restricts the scope
or exercise of those powers.
Further, section 42 of the same Act stipulates
that: "The Assembly has the power to protect its proceedings
against all interference."
Thus, while the power to punish members of the
public for contempt is not expressly provided in our legislation,
the Act may nevertheless be read as expressing the intent to retain
for the National Assembly the full range of parliamentary privileges.
We thus believe the Assembly retains the right to deal with such
cases in the manner set forth in its Standing Ordersspecifically
Standing Orders 324 to 327which provide that the conduct
of a person other than a Member may be impugned before the Assembly
and appropriate measures taken should the Assembly so decide.
There would be no appeal to the courts from any such action taken
by the Assembly.
However, we are currently reviewing certain
aspects of our procedure preparatory to amending the Act, which
we admit is somewhat confusing on this point, with a view to recognising
the full powers of the Assembly in this area.
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 contempt?
Contempts of Parliament have been only partly
codified in sections 55 and 56 of our Act respecting the National
We are unaware of any modern precedents for
punishments imposed on a member of the public.
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)?
The proceedings of committees can never be contested
by a court, but courts do sometimes refer to the transcripts of
the deliberations in determining, for example, the intention of
the legislator. Indeed, the submission of certain documents in
evidence is expressly authorised in section 50 of the Act respecting
the National Assembly, which provides as follows:
A copy of a written or audio-visual
document contemplated in section 48 (which grants absolute immunity
for the publication of an unedited report or official summary
of the debates of the Assembly or of a committee or subcommittee)
or 49 (which grants conditional immunity for the publication of
an abstract of such debates where there is no malicious intent)
certified true by the Secretary General of the Assembly is admissible
Apart from contracts occasionally let by committees
for consulting services with respect to matters they are examiningthese
being purely administrative matters the details of which rarely
concern the full committee itselfno committee is expressly
empowered to examine the contracts entered into by the Assembly
administration, and it is difficult to imagine in what circumstances
the courts would be led to consider committee proceedings in that
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 National Assembly?
Section 55(9) of the Act respecting the National
Assembly makes it a contempt of the Assembly to bribe or to
attempt to bribe a Member or an employee of the Assembly.
Bribery or attempted bribery of a Member of
the Assembly would probably also come under section 119(1) of
the Canadian Criminal Code, which provides as follows:
119.(1) (Bribery of judicial officers,
(a) being the holder of a judicial office,
or being a member of Parliament or of the legislature of a province,
(i) accepts or obtains,
(ii) agrees to accept, or
(iii) attempts to obtain,
any money, valuable consideration,
office, place or employment for himself or another person in respect
of anything done or omitted to be done or omitted by him in his
official capacity, or
(b) gives or offers, corruptly, to a
person mentioned in paragraph (a) any money, valuable consideration,
office, place or employment in respect of anything done or omitted
or to be done or omitted by him in his official capacity for himself
or another person,
is guilty of an indictable offence and liable
to imprisonment for a term not exceeding 14 years.
who authorises prosecution?
No special authorisation by the Assembly
or its Speaker is needed. The courts can already hear such a case
under the provisions of the Act respecting the National Assembly
and the Criminal Code.
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?
If the debates or other documents of the
Assembly were entered as evidence in a trial for bribery, having
been duly certified true by the Secretary General of the Assembly
as provided in section 50 of the Act respecting the National
Assembly, the court could presumably consider them. If testimony
by some member of the personnel of the Assembly were sought, he
would require the permission of the Speaker of the Assembly, the
Speaker being empowered to refuse such an appearance in court
if he considers that person's presence necessary for the proper
functioning of the Assembly and its services (section 47 of the
Act respecting the National Assembly).
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?
The answer to this question is the same
as that to the previous 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?
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 National Assembly be served
with a subpoena which required him or her to appear in Court on
a day when the National Assembly is sitting? Is any right of immunity
exercised by the member without reference to the House or its
Presiding Officer, or is authorisation required?
For the extent of the immunity, please see sections
45 and 46 of the Act respecting the National Assembly. No
authorisation is required for its exercise.
12. Can a member of the National Assembly
be served with a subpoena in the precincts of Parliament on a
sitting day? On a non-sitting day? Or would such service be regarded
as a contempt?
It is well recognised that the National Assembly
must contribute to the exercise of justice, but only the Speaker
of the Assembly can authorise the serving of a subpoena in the
parliamentary precincts, and that is equally true whether the
Assembly is in session or not. The failure to obtain the requisite
authorisation could be considered a contempt of Parliament.
13. Can the National Assembly suspend
or expel one of its members?
Yes. Please see sections 134, 135, and 136 of
the Act respecting the National Assembly.
14. Has the National Assembly the power
to fine? Has it ever used the power?
The National Assembly indeed has this power
but, to our knowledge, has not used it in modern times.
15. Do you have provision for citizen's
right of reply to what is said in Parliament? If so how is it
16. Do you have provisions in Standing
Orders or elsewhere for the protection of witnesses who appear
before parliamentary committees?
A major report on this question was tabled in
the Assembly in 1984, but no changes were made to the rules of
procedure in consequence of it. The only protections granted to
witnesses before the Assembly or a parliamentary committee are
treated in the answer to question 17, below.
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?
Section 53 of the Act respecting the National
Assembly provides as follows: "In no case may a person's
testimony before the Assembly or a committee or subcommittee be
held against him in a court of law, unless he is being prosecuted
for perjury." Section 55(11) further provides that it is
a contempt to suborn or to attempt to suborn or to threaten a
witness before the Assembly or a committee thereof. There are
no other specific protections for witnesses before the Assembly.
18. Is perjury before the National Assembly
or a committee of the National Assembly punished by the Courts,
or is it punished by the legislature as a contempt?
Under sections 53, 55(2), 55(3), 55(4), 133,
134 and 137 of the Act respecting the National Assembly,
perjury by a Member of the Assembly would be punishable by the
Assembly itself; perjury by a person other than a Member would
be punishable by the courts. Perjury is also covered in section
131 of the Canadian Criminal Code.
As noted in our answer to question six, however,
notwithstanding the wording of the Act, it is our view that the
Assembly would also be empowered to act directly, as provided
in its Standing Orders, against a member of the public accused
of perjury before one of its committees.
19. Is there statutory provision to
give absolute privilege to papers published under the authority
of the legislature?
Yes, under section 48 of the Act respecting
the National Assembly. Section 49 provides relative privilege
for the publication in good faith of accounts or of excerpts from
20. Do you have a "freedom of information
Act"? Does it apply to the legislature in any respect?
We answered this question in our sending of
last 30 January.