Parliamentary Privilege First Report


Memorandum by the National Assembly of Quebec

  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 document.

  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 and administration?

  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 and stead.

  (*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 as follows:

      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 Orders—specifically Standing Orders 324 to 327—which 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 Assembly.

  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 as evidence.

  Apart from contracts occasionally let by committees for consulting services with respect to matters they are examining—these being purely administrative matters the details of which rarely concern the full committee itself—no 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 regard.

  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, etc)

    Every one who

      (a)  being the holder of a judicial office, or being a member of Parliament or of the legislature of a province, corruptly

      (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?

  No.

  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 implemented?

  No.

  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 parliamentary documents.

  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.

April 1998


 
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Prepared 9 April 1999