Memorandum by the Saskatchewan Legislative
1. (a) Are there any differences between
the scope of the privileges of your Parliament compared with the
Yes there is a difference. The Parliament of
Canada has legislated the same privileges as held by the UK House
of Commons at the time of Confederation. The Saskatchewan Legislative
Assembly has not claimed in statute the same privileges as the
Canadian House of Commons or Westminster. Rather, the Saskatchewan
Legislative Assembly has codified certain privileges in the Legislative
Assembly and Executive Council Act and has included a "saving
clause" which says that the Assembly's privileges are not
limited by the Act and in essence, claims the privileges available
through the common law. In practice, the House assumes it has
all the privileges common to the Westminster style parliaments
but this has been rarely tested outside the Assembly.
1. (b) Does Article 9 of the Bill of
Rights 1689 expressly or implicitly apply to your legislature?
While we use Article 9 of the Bill of Rights
to explain and justify parliamentary privilege, it technically
applies only implicitly to our legislature, ie, through the common
1. (c) 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
Yes, a Member's immunity from an action for
defamation is absolute in respect of things said and done in the
proceedings but this is because this immunity is one of the privileges
legislated in our Act.
1. (d) Does this even extend to the revelation
of official secrets in debate?
As a provincial jurisdiction, Saskatchewan does
not have an Official Secrets Act and would not likely have access
to information covered by the Federal equivalent, but while this
is untested, it would be our view that the privilege would extend
to the revelation of official secrets in debate.
2. Are there any statutes or other provisions
defining your privileges?
Yes, Saskatchewan has codified certain basic
privileges in the Legislative Assembly and Executive Council
Act. The relevant sections are attached.
3. Do you have exclusive control over your
procedure (in your ability to make Standing Orders for example)?
Yes, the Legislative Assembly has exclusive
control over its internal procedure. This was recently substantiated
at the provincial level by a Supreme Court decisionNB Broadcasting
Co v Nova Scotia (Donohoe)  SCR 319.
4. Do you have exclusive control over the
buildings in which the legislature meets and over its staffing
The Speaker has responsibility for security
throughout the Legislative Building but shares responsibility
for mainteance, operations and space allocation with the Saskatchewan
Property Management Corporation and the Department of Executive
Staffing and administration of the Legislative
Assembly is in the exclusive control of the Legislative Assembly
through a statutory board called the Board of Internal Economy.
The Board is composed of Members from Cabinet, Government private
Members and Opposition Members and is chaired by the Speaker.
The Board's responsibilities include approval of the Legislative
Assembly budget, setting staffing levels and classifications,
approving general policies and establishing Members' pay and allowance
provisions. Legislative staff are not part of the Public Service
but are described in our Act as employees of the Legislative 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?
It has never been claimed that laws establishing
labour standards, occupational health and safety or human rights
codes do not apply within the parliamentary precincts. In fact
the reverse is the casewe assume that these general laws
apply unless the Legislative Assembly has been expressly exempted.
This is a different view than that taken by the federal Parliament.
6. Can you punish a member of the public
for a "contempt of Parliament?" Is there any appeal
to a Court?
Yes a member of the public can be punished for
a contempt of Parliament and there is no appeal to a Court. Section
25 of our Act says: "The determination of the Assembly upon
any proceedings under this Act is final and conclusive."
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?
The Legislative Assembly and Executive Council
Act in section 24 (attached) codifies certain offences but is
not exhaustive. The House has not attempted to define or codify
that which may constitute a contempt other than through decisions
relating to Speaker's rulings on individual cases.
Most recent contempt cases have involved sitting
Members of the Assembly but in 1916 the Assembly committed a member
of the public to the custody of the Sergeant-at-Arms for his refusal
to answer questions put to him at the bar of the House.
In a more recent case in 1984, the Legislative
Assembly determined that a lawyer who had initiated a libel action
against a Member for things he had said in the House was guilty
of a contempt. The House requested that the lawyer apologise to
the House through a letter to Mr Speaker. The legal action was
dropped and upon receipt of the letter of apology, the House accepted
it and did not pursue the matter further.
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 don't have any precedents in this area but
would take the position that the proceedings of a legislative
committee could not be considered by a Court. But in our case,
questions of administrative management are usually made by the
Board of Internal Economy which is a statutory authority and not
a parliamentary committee. We expect that the decisions of the
Board relating to administrative matters such as contracts could
very well be within the purview of the Courts.
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.
9. (a) What statutory offence exists
in relation to bribery of a member of the legislature?
The Legislative Assembly and Executive Council
Act provides that the Assembly may inquire into and punish instances
of bribery described as follows in subsection 24(c) : "any
offer to, or acceptance by, a member of a bribe to influence him
in his proceedings as a member, or of any fee, compensation or
reward for or in respect of the promotion of a bill, resolution,
matter or thing submitted to or intended to be submitted to the
Assembly or a committee of the Assembly;" In addition, sections
31, 32 and 33 prohibit a Member from receiving compensation or
reward for services rendered in relation to any business before
the House. We believe these provisions could be enforced by the
House or in a Court of law or both.
The Criminal Code of Canada also contains an
offence of bribery applicable to a member of a provincial legislature
in sections 118-122.
9. (b) Who authorises prosecution?
Any Member may raise breaches of section 24
of The Legislative Assembly and Executive Council Act in the House
and it is the House that decides the matter.
Where prosecution is under the Criminal Code,
it is the Chief Crown Prosecutor of the province or his/her designate
who authorises prosecution.
9. (c) 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?
This remains a grey area as we have very little
in the way of precedent. We believe that it is certain that a
Member may not be sued for things said by him/her in the course
of proceedings in the Assembly but it is not certain that Courts
could not hear and examine evidence on what a member has said
and done in the course of proceedings if the judicial proceeding
is for purposes other than an action against the Member.
9. (d) 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?
Probably but this also is uncertain.
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?
Saskatchewan has no practice, standing orders
or statutory provisions that address the question of waiving privilege.
It would be our view that the individual member has no ability
to "waive privilege". It is also doubtful whether the
House could "waive privilege" in any formal way but
could possibly choose not to invoke or exercise its privileges.
11. (a) 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?
The following sections in The Legislative
Assembly and Executive Council Act provide immunity from arrest,
from civil action and from attendance as jurors before a Court
during the time the Legislature is in session. We also believe
that under common law privilege Members would be exempt from being
called as a witness during legislative sittings.
See sections 27(1); 28; and 29 attached.
11. (b) Are any such immunities confirmed
Yessee legislative provisions quoted
above in subsection 11(a).
11. (c) Does any immunity extend to attendance
before tribunals (or Royal Commissions?)
The legislation does not address attendance
before tribunals but if attendance interfered with the ability
of the Member to carry out his or her duty to attend the House,
it is likely that privilege could be claimed to exempt the Member
as the House has the first right to the attendance of its Members.
11. (d) What limitations are placed on
The chief limitation is that the immunity applies
during the time the Legislature is in session. The immunity applies
only to civil and not criminal actions.
11. (e) 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?
While a Member may be served with such a subpoena,
the Member may make representations it is not exercisable during
the sittings of the House.
11. (f) Is any right of immunity exercised
by a member without reference to the House of its Presiding Officer,
or is authorisation required?
We have a recent case (G. Muirhead) where a
Member successfully claimed immunity from civil action during
the session under section 28. The Judge accepted the Member's
claim and postponed the court case until after the end of the
session. In this instance the claim to immunity was raised by
the Member before the Court without reference to the House. We
have no explicit provisions in this regard.
12. Can a member of the legislature 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?
A Member may be served with a subpoena within
the precincts on a sitting day or on a non-sitting day but only
where the service has been conducted through the proper protocol
that requires the Speaker's consent and ensures that officers
of the House have reviewed the document as to form and validity.
Service or attempted service without obtaining the Speaker's consent
could be regarded as a contempt; however, we have a precedent
where service of a subpoena on a Member during the sitting within
the precincts was done without the Speaker's knowledge and no
question of privilege was raised regarding the matter of service.
We are currently preparing a Protocol to codify
and clarify our practice with respect to the service of legal
documents and warrants in the precincts. The Protocol was prepared
to provide police forces and document servers with information
on the proper procedures to be followed for service within the
Legislative Building. This policy has not been formally adopted
as this time.
13. Can the legislature suspend or expel
one of its members?
In 1984, the Legislative Assembly amended The
Legislative Assembly and Executive Council Act to provide
authority for the Assembly to suspend or expel a Member (section
40.1). At the time the Legislature wished to expel a Member who
had been convicted of murder and there was some doubt whether
expulsion by resolution under common law privileges could be challenged
as punishment and therefore be beyond the powers necessary for
the conducting of the affairs of the Assembly. In addition to
section 40.1 as attached, the Assembly also saw fit to add another
"saving clause" as section 40.2 to ensure that the legislated
provisions in section 40.1 did not limit the right of the House
to expel according to parliamentary practice.
14. (a) Has the legislature the power
Section 24 lists offences which the Assembly
has the power to inquire into and punish. In subsection 24(3)
the Assembly is empowered to order imprisonment but there is no
express provision to fine. The only exception to this is in sections
31-33 where a member who violates the prohibitions against receiving
any fee or compensation related to business of the House or an
attempt to influence another member may be subject to a penalty
and repayment of the compensation.
14. (b) Has it ever used the power?
15. (a) Do you have provision for citizen's
right of reply to what is said in Parliament?
15. (b) If so how is it implemented?
16. Do you have provisions in Standing Orders
or elsewhere for the protection of witnesses who appear before
Subsection 24(e) of The Legislative Assembly
and Executive Council Act makes tampering with a witness with
regard to evidence to be given before the Assembly or a committee
an offence that the House may punish. Neither our Standing Orders
nor our Act specifically provide protection for witnesses for
what they may say in committee proceedings. However, our practice
reflects our belief that witnesses are protected from their testimony
being used in a court of law by common law privilege and by provisions
in the Canadian Charter of Rights and Freedoms. A copy of the
statement read to witnesses appearing before certain legislative
committees is attached.
Section 26 of the Act may also be construed
to offer some protection to witnesses although we believe that
was not its original purpose.
17. (a) Are such witnesses protected
against intimidation in respect of their evidence by statute?
Yessee subsection 24(e) as referred to
in Question 16 above.
17. (b) Or is this treated as a contempt
of the legislature and punished by it?
It may be treated as contempt of the legislature
and punished by the House or the provision could be upheld in
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?
It could be punished by the legislature under
subsection 24(h) or by the Courts or both, it appears. We have
no precedent in this area.
19. Is there statutory provision to give
absolute privilege to papers published under the authority of
There is no specific provision.
20. Do you have a "freedom of information
Act"? Does it apply to the legislature in any respect?
Yes, Saskatchewan has enacted an act called
The Freedom of Information and Protection of Privacy Act,
chapter F-22.01 of the Statutes of Saskatchewan, 1990-91. The
Legislative Assembly is specifically exempted from the provisions
of the Act by excluding the Legislative Assembly Office and offices
of members of the Assembly from the definition of "Government
Clerk of the Legislative Assembly
29 April 1998