House of Commons Debates - 34-2-1989!10!10 - Speaker's Decision

8/3/2019 House of Commons Debates - 34-2-1989!10!10 - Speaker's Decision

1/6

HOUSE OF COMMONSDEBATES

OFFICIAL REPORT

SECOND SESSION THIRTY-FOURTH PARLIAMENT38 Elizabeth II

VOLUME IV, 1989

COMPRISING THE PERIOD FROM THE FOURTH DAY OF OCTOBER, 1989TO THE EIGHTH DAY OF NOVEMBER, 1989

INDEX ISSUED IN A SEPARATh VOLUME

Published under authority of the Speaker of the House of Commons by the Queens Printer for Canada

Available from Canada Communication Group Publiabing, Supply and Services Canada, Ottawa, Canada K1A 0S9.


2/6

44

HOUSE OF COMMONS

Tkiesday, October 10, 1989

The House met at 11 a.m.

[English]

Prayers

PRiVILEGECONTENTS OF NEWSPAPER ADVERTISEMENTSPEAKERSRULINGMr. Speaker: I am now ready to rule on the question ofprivilege which was raised on September 25 by the RightHon. Leader of the Opposition concerning the government advertisements which appeared in newspapers onAugust 26 relating to the proposed goods and servicestax.From the very outset, I w ish to state emphatically thatthe Chair has no intention of dealing with the relativemerits or limitations of the proposed tax; the Chair hasabsolutely no role to p lay in such political matters. TheChairs sole responsibility in this instance is to determinewhether the matter raised by the Leader of the Opposition warrants setting aside the regular business of theHouse.Citation 84(2) of Beauchesne Rules and Forms of theHouse of Commons, fifth edition states:It has often been laid down that the Speakers function in rulingon a c laim of breach of privilege is limited to deciding the formalquestion, whether the case conforms with the conditions which aloneentitle it to take precedence over the notices of motions and Ordersof the Day standing on the Order Paper; and does not extend todeciding the question of substance, whether a breach of privilege has

in fact been committeda question which can only be decided bythe House itself.[Translation]

I want to again stress that the Speaker does not rule onwhether a breach of privilege or a contempt has in factbeen committed. The Speaker only determines whetheran application based on a claim of contempt or breach ofprivilege is, on first impression, of sufficient importance

to set aside the regular business of the House andforward for a decision by the House. That is the narrpoint that the Chair must decide.[English]It might be appropriate to first review some of tfacts surrounding the present case. On August 26, 19the Department of Finance published in newspap

across the country an advertisement which stated:On January 1, 1991, Canada s Federal Sales Thx Systemchange. Please save this notice. It explains the changes andreasons for them.I point out that this ad was a fullpage ad and tletters were very large indeed.Let me repeat the wording of the advertisementFrench.Le lerjanvier 1991, le rgime d e Ia taxe fdrale de vente connade s modifications. Vuillez conserver cet avis. II expliquemodifications apportes et les raisons qui y prsident.

I should point out that in French, then, the ad weperhaps even farther than what was implied in tEnglish.The advertisement went on to explain that the gooand services tax will replace the existing federal satax and it outlined very specific proposed changes. Ittrue that in the ad some of those changes were set ounder the heading Proposed Changes.In the interventions on September 25, the HoMember for ParkdaleHigh Park pointed out that theads also appeared in many ethnocultural newspapeacross Canada. At the invitation of the hon. membeexamined a number of the newspapers in question, afound that most of these advertisements were publishin early September, and that some of them were printin Italian and Lithuanian.

(1110)The Hon. Member for OttawaVanier, in his intvention, laid stress on the fact that, in the French tethe wording of the advertisement suggests that tchanges have already been made or adopted in so mu


3/6

4458 COMMONS DEBATES October 10 , 198Privilege

that the ad uses a participe pass namely the wordadopts.In presenting his case for a breach of privilege, the

Leader of the Opposition dealt with a number of seriousissues. If I may be permitted to summarize his arguments, he makes two basic claims: first, that the advertisement prejudices the future proceedings of the Houseand of the finance committee which has undertaken anexamination of a technical paper on the subject; andsecond, that the advertisement is a contempt of Parliament because it leaves readers to infer that the Househas no role in the passage of the tax, thus misleading theCanadian public concerning the procedures employed byParliament in adopting such legislation. To quote fromthe right hon. member at pages 3809-10 of Hansard:

The wording Please Save This Notice, followed by chapter andverse of the alleged tax changes, constitutes a basis for a question ofprivilege.

At least this is the argument of the Right Hon. Leaderof the Opposition. He continued:

Those words Please Save This Notice constitute a contempt ofParliament, constitute an intimidation of Parliament, because theonly inference to be drawn from the words Please Save ThisNotice is that it does not matter what members of Parliament doin dealing with these taxes. It does not matter what the committeeon finance does with respect these taxes.

He goes on to argue:These advertisements violate our parliamentary tradition in twomore ways. They prejudice the proceedings that are now before theStanding Committee on Finance as well as prejudicing futureproceedings of the House itself.

The hon. member for Oshawa and Leader of the NewDemocratic Party spoke in support of the claims made bythe Leader of the Opposition. In addition, he raised theissue of the propriety of a government using public fundsto advertise its position on a debate which has yet to beheld in Parliament. On this specific point, I would like toimmediately refer to the ruling of Speaker Sauv onOctober 17, 1980, at page 3781 of Hansard and I quote:[Translationl

The fact that certain members feel they are disadvantaged by nothaving the same funds to advertise as does the government, whichcould possibly be a point of debate, as a matter of impropriety or

under any other heading, does not constitute a prima facie caseprivilegeI feel, just as Speaker Sauv concluded, that this isimportant issue which merits consideration, but it shou

not take place under the aegis of privilege.[English]

To continue with the arguments presented to the Chaon the question of privilege, the Minister of Justice roto make three basic points for rejecting this applicatias a breach of privilege or contempt of the House. Hreferred to the fact that the finance committee itsunanimously recommended that if .the government weto proceed with the value-added tax it should publicithe details of that tax. He also explained that in tbudget which was approved by the House, the govement had indicated that the goods and services tax woube implemented on January 1, 1991. Finally, since tcommittee is presently studying the issue, he suggestthat no case can be made for the claim that tcommittees work is being impeded.The Chair has also considered the arguments madethe hon. member for Windsor West, the hon. membfor Kamloops and the hon. member for Peace River, aI would like to thank them for their interventions in th

serious matter.[Translation]In the present case, the Chair must address a numbof issues. I intend to first deal with the issue of wheth

or not there has been a breach of privilege insofar as tadvertisement prejudices the work of the House or tCommittee. I will then deal with the claim that tadvertisement is a contempt of Parliament becauseinfers that the House does not have any role to playthe passage of the tax, and that it misrepresents to tCanadian public the procedures employed by Parliamein adopting legislation.[English]Before proceeding with the first issue, the Chair fee

it might be useful to offer members a short explanatiof the difference between what constitutes a contemptthe House and what constitutes a breach of privilegThe privileges extended to members individually a

to the House as a collectivity are finite. They agenerally categorized under five headings which afreedom of speech, freedom from arrest in civil actionexemptions from jury duty, exemption from attendan


4/6

October 10 , 1989 COMMONS DEBATES 445

as a witness, and freedom from molestation. As ErskineMay explains on pages 70 and 71 of the twentieth edition:The distinctive mark of a privilege is its ancillary character. Theprivileges of Parliament are rights which are absolutely necessary

for the due execution of its powers. They are enjoyed by individualMembers, because the House cannot perform its functions withoutunimpeded use of the services of its Members; and by each Housefor the protection of its Members and the vindication of its ownauthority and dignity.

As a result, when members claim that a certain actionconstitutes a breach of privilege, they must specify whichprivilege is affected.Contempts, on the other hand, cannot be enumeratedor categorized. As Speaker Sauv explained in a rulingon October 29, 1980, at page 4214 of Hansard:

while our privileges are defined, contempt of the House has nolimits.When new ways are found to interfere with our proceedings,so too will the House, in appropriate cases, be able to find that acontempt of the House has occurred.

Broadly speaking, contempts are offences against theauthority or the dignity of the House of Commons. Theyinclude situations which cannot specifically be claimed asbreaches of the privileges of the House. As noted atpages 71 and 143 of Erskine Mays twentieth edition:

Each House also claims the right to punish actions, which, whilenot breaches of any specific privilege, are offences against itsauthority or dignity, such as disobedience to its legitimate commandsor libels upon itself, its officers or its Members. Such actions, thoughoften called breaches of privilege, are more properly distinguishedas contempts.

It goes on:It would be vain to attempt an enumeration of every act whichmight be construed into a contempt, the power to punish for

contempt being in its nature discretionary. It may be statedgenerally that any act or omission which obstructs or impedes eitherHouse of Parliament in the performance of its functions, or whichobstructs or impedes any Member or officer of such House in thedischarge of his duty, or which has a tendency, directly or indirectly,produce such results may be treated as a contempt even thoughthere is no precedent of the offence.

As already mentioned, it is not possible to categorizeor to delineate what may fall under the definition of acontempt. It is not even possible to categorize theseverity of a contempt. As a procedural authority onthe Lok Sabha of India, that is the Indian Parliament,

Privilegeexplains in Practice and Procedure of Parliament at pa209:

Contempts of Parliament may, however, vary greatly in their natuand their gravity. At one extreme they may consist in little more thvulgar and irresponsible abuse; at the other they may constitute graattacks undermining the very institution of Parliament itself.In summary, all breaches of privileges are contempof the House, but not all contempts are necessarbreaches of privilege. A contempt may be an act oromission; it does not have to actually obstruct or impethe House or a member, it merely has to have ttendency to produce such results. Matters ranging frominor breaches of decorum to grave attacks against tauthority of Parliament may be considered as contemp

[Translation]In the present case, the Leader of the Opposition (MTurner) contends that the advertisement by the Depament of Finance prejudices the future proceedings of tHouse and the Finance Committee.The Chair must determine which of the speciprivileges of the House have been breached.

[English]Certainly, freedom of speech has not been affecteThe committee is continuing its deliberations and tHouse will no doubt be debating the several issu

surrounding the proposed goods and services tax, eiththrough Question Period or on the report of the financommittee which will be presented to the House no lathan November 28, 1989. The House will also have topportunity to debate any bills that the government mpropose to the House and will also have an opportunto vote on any Ways and Means motions, which necessily precede the introduction of any such bills. Topportunity for debate and amendment are too numous to list. Suffice it to say that those opportunities hanot been diminished. (1120)

[Translation]Now, has the House or have any Members beobstructed in the performance of their duties? In ordfor an obstruction to take place, there would have hadbe some action which prevented the House or Membefrom attending to their duties, or which cast such serio


5/6

4460 COMMONS DEBATES October 10 , 198Privilege

reflections on a Member that he or she was not able tofulfill his or her responsibilities. I would submit that thisis not the case in the present situation.I would also like to point out that the House and itscommittees do not work in a vacuum. Members areconstantly aware of outside factors and pressures. Sinceno threats or bribes have been made, it is difficult to seehow the work of the House or the Finance Committeehas been prejudiced or which specific privilege has beenbreached.On this issue, I cannot find that any privilege has beenbreached.

[English]In the present case, does the advertisement of theDepartment of Finance amount to a contempt of theHouse of Commons? The right hon. Leader of theOpposition argues that the advertisement in question ismisleading in that it gives the general public the impression that this proposed change to the taxation system is afait accompli and that Parliament has no role to play inexamining and approving the changes. The effect of thismay tend to diminish the authority of the House in theeyes of the public.In reply, the Minister of Justice stated and I quotefrom page 3821 of Hansard, and this was the argument ofthe Minister of Justice:

The ads were for proposed changes. They were for informationalpurposes. In fact they have done their job and we have hundreds andthousands of requests for information. We are trying to inform thepeople.The justice minister explains that it was never thegovernments intention to suggest that legislation wouldnot be submitted to Parliament for debate. DuringQuestion Period on September 25, the Minister ofFinance also stated that the purpose of the ad was toinform, and in keeping with other documents of thespring budget.Should the Chair accept the governments explanationand rule that no deliberate contempt was made? At thispoint it may be useful to quote from a Canadianauthority on privilege. As Joseph Maingot explains atpage 213 of Parliamentary Privilege in Canada:

There are actions which, while not directlyobstructing theHouse of Commons or the member, nevertheless obstruct the Housein the performance of its functions by diminishing the respect due it.

As in the case of a court of law, the House of Commons is entito the utmost respect.Does the advertisement diminish the respect duethe House? The hon. member for Windsor West p

forward the following argumentat page 3823 of HansaWhen this advertisementsays in effect there will be a new taxJanuary 1, 1991,the advertisement is intended to convey the ithat Parliament has acted on it because that is, I am sure, the ordinunderstanding of Canadians about how a tax lik e th is is finadopted and comes into effect. That being the case, it is clearlcontempt of Parliament because it amounts to a misrepresentationthe role of this House.

[Translation]The Chair is in a quandary. The arguments on bosides of the question are very strong. To add to tChairs difficulties, procedural authorities also point o

that precedents cannot be relied upon to determine icontempt exists. In contrast, the Chair can more easdetermine when a privilege has been breached becauthe categories are finite and rulings can be basedprecedents and authorities. This case is certainly uniquAnalogies can be made to the decision renderedSpeaker Sauv on October 17, 1980, but at that time tissue centred on the propriety of the governmentadvertise in advance of a debate taking place in tHouse. The issue was not whether the dignity of tHouse had been affected.Under these conditions, the Chair feels it must ex

cise extreme caution against unduly restricting the athority of the House to deal with a perceived contemespecially given the arguments which have been prented.[English]

I must confess that I have certain doubts regarding thcase. Normally in cases of doubt, it has been the practifor Speakers to allow an appropriate motion toforward for a decision of the House. To this effectwould like to read from a ruling of Speaker Jeromfound at page 3975 ofHansard for March 21, 1978, whehe quotes from a report of the United Kingdom SeleCommittee on Parliamentary Privileges.

it might be inferred that the test applied by the Speakerdeciding whether to give precedence over the orders of the day tcomplaint of breach of privilegeis, Does the act complainedappear to me at first sight to be a breach of privilege? Rigorouapplied, it would mean that no complaint of breach of privilecould ever be entertained unless the Speakerwas of opinion thatact or conduct complained of was a breach of privilege


6/6

October 10, 1989 COMMONS DEBATES 4461

Routine ProceedingsBorderline cases and arguable ones would be excludedautomatically because in such cases the Speaker could not say thathe was of opinion that the act or conduct which was the subject ofcomplaint prima facie constituted a breach of privilege.In my submission the question which the Speaker should askhimselfshould behas the Membe r an arguable point? If theSpeaker feels any doubt on the question, he shouldleave it to theHouse.

That is a quote in a judgment by Speaker Jeromeciting, I should make it clear, the United Kingdom SelectCommittee on Parliamentary Privileges.In order to clarify my thoughts on the issue of primafacie and to dispel the doubts that I have referred to , theChair has pondered the intent of the offending advertisement as compared to its contents. I can express my

own opinion that the content was obviously drafted in acavalier manner; there is an element of confidence, ifnot of boldness, in the use of a phrase as definitive assave this ad.The Ministers of Justice and of Finance have said tothe House that the intent of the ad was to informCanadians. Members are well aware of our practice ofaccepting the word of an hon. member of the House. Inaccepting the ministers explanations, the question ofintent is answered and accordingly some of the Chairsdoubts are also dispelled. The intent of the ad was not todiminish the dignity of the House. It is difficult to find

prima facie contempt.However, I want the House to understand very clearlythat if your Speaker ever has to consider a situation likethis again, the Chair will not be as generous. This is acase which, in my opinion, should never recur. I expectthe Department of Finance and other departments tostudy this ruling carefully and remind everyone withinthe Public Service that we are a parliamentary democracy, not a socalled executive democracy, nor a socalledadministrative democracy.Some Hon. Members: Hear, hear!Mr. Speaker: In order that all hon. members knowexactly what the procedure is, and in order that membersof the public who are watching and listening understandclearly what the procedure is, let me return to what I saidbefore, that if I had decided that this matter ought to goto the House, it would be followed, or could be followed,by a debate and a vote.

I believe it is in the interest of our parliamentarsystem of government to have a clear statement from thSpeaker which cannot be misinterpreted either in debator by a vote. A vote on this issue might not support thvery important message which your Speaker wishes tconvey and which I hope will be, well considered in thfuture by governments, departmental officials and advetisement agencies retained by them. This advertisemenmay not be a contempt of the House in the narroconfines of a procedural definition, but it is, in mopinion, illconceived and it does a great disservice tthe great traditions of this place. If we do not preservthese great traditions, our freedoms are at peril and ouconventions become a mockery. I ins is t, and I believeam supported by the majority of moderate and responsble members on both sides of the House, that this adobjectionable and should never be repeated.(1130)

I have deliberately made this ruling with great care iorder that if ever this issue has to be debated anconsidered by this House again these comments wiserve to guide the House in its deliberations.

[English]ROUTINE PROCEEDINGS

ORDER IN COUNCILTABLING OF APPOINTMENTS

Hon. Doug Lewis (Minister of Justice and AttorneGeneral of Canada): Mr. Speaker, I am pleased to tablein both official languages, a number of Order in Councappointments which were made by the governmenpursuant to the provisions of Standing Order 110(1These have been referred to the appropriate standincommittees, a list of which is attached.* * *

COMMITTEES OF THE HOUSEBILL C-21REPORT OF LEGISLATIVE COMMITTEE

Mrs. Edna Anderson (Simcoe Centre): Mr. Speakeon behalf of the chairman I have honour to present threport of the legislative committee on Bill C21, an acto amend the Unemployment Insurance Act and thEmployment and Immigration Department and Corn

House of Commons Debates - 34-2-1989!10!10 - Speaker's Decision

Documents

Transcript of House of Commons Debates - 34-2-1989!10!10 - Speaker's Decision