Policing Members—Of warrants, arrests and searches of Members of a Legislature

When is it appropriate to arrest a member of the legislature? How does one go about arresting a member of the legislature? How are warrants to be executed against members of a legislature? What are the limits of a warrant? And what is a Speaker to do? All of these questions have arisen in what has become known as L’affair Ouellette in Québec.

Guy Ouellette is a member of the Québec National Assembly. He was to chair of a committee responsible for oversight of various institutions in Québec, including the Commission for Anti-corruption. On October 25, 2017 Mr. Ouellette was chairing his committee. At the noon break he was lured from the National Assembly and arrested by a warrant issued on behalf of the Commission for Anti-corruption. As a result, the committee that Mr. Ouellette was chairing was required to suspend its sittings. At the same time a search warrant was executed on his home and materials seized from electronic devices. To date no charges have been laid, nor has the reason for the arrest or the issuance of the warrants been made public. There is some suggestion that the commission for anticorruption is investigating a leak of information relating to its investigation of a former Premier of the province.

Shortly after his arrest Mr. Ouelette raised the matter as a question of privilege in the National Assembly.  The Speaker expressed his deep concern about the issue and the matter was debated. The Leader of the Opposition vigourously took up the cause of ensuring the Mr.Oeulette’s rights as a member, and the rights of all members, were protected.

On November 16 the Speaker gave a ruling on the matter, which he refers to as a direction. The ruling chastises the police and the commission for their failure to respect the rights privileges and independence of members of the National Assembly, as a legislature. The ruling canvases the issues and provides both a summary of the rights and privileges of the Assembly and provides direction for how police are to conduct themselves in the future when executing warrants for both the arrest and search of members of the legislature.

The Speaker takes some pains to identify the somewhat difficult balance between protecting the rights and privileges of the legislature, while at the same time not being seen as obstructing justice or legal process. Although it is clear that members are not above the law, nor is there any form of immunity from legal process as such, including arrest and search for purported criminal behaviour, the conduct of police in the execution of warrants must respect the privileges of members, and cannot be used as a form of direct or indirect harassment, obstruction, or impairment of members of a legislature in the carrying out of parliamentary business.

The independence of a legislature from interference by the state, including the police, is paramount in a democracy. Members must be free to carry out their business as they deem appropriate without fear of arrest or search. They must be free from interference and intimidation. To be arrested and to have a search conducted which could reveal how a member is conducting his or her parliamentary work is a direct attack on democratic institutions.

In the case presented, it was clear to the Speaker that the manner in which the arrest took place, and the timing of the arrest clearly had an impact on the business of the Assembly-a committee was required to suspend its sittings since its chairman had been arrested. The Speaker had not been advised of the arrest and had no inkling of what was about to occur and the possible effect on the business of his Assembly. Given the circumstances as they are now known, the Speaker was particularly concerned that there was no urgency and that there was no reason for the arrest to take place when, or in the manner, that it did. There was no reason why the Speaker could not have been advised. The first determination made by the Speaker is that in all future circumstances, when an arrest of a member is to be made, the Speaker is to be advised. This is particularly the case when the assembly is sitting and it will be deprived of the services and attendance of one of its members. The privilege of a legislature to the attendance of its members is one that reaches back and predates the Bill of Rights, 1689 before which it was not uncommon for Members of Parliament to be arrested both for what they might say or how they may to try to influence the business of the house.

As to the place of arrest, the Speaker was concerned that the member was lured outside of the precinct because the police believed that this was sufficient to allow them to arrest the member and not advise the Speaker. In condemning the police, the Speaker stressed that the question of privilege is not one of place but of function. Although the Speaker has absolute control over who has access to the precinct, such that the police would have been held up at the door so as to not be able to affect the warrant, this did not end the privileges of the member. The member was clearly impeded in the ability to carry out his functions. It was the obstruction of the business of the member and the house that mattered.

Regarding the search warrant, the Speaker expressed concern over the fact that certain materials seized is likely covered by parliamentary privilege. The search, and the seizure, of material covered by parliamentary privilege as possible evidence both against the member and others is not permitted. This goes for materials that are related to proceedings or information from constituents that are given to a member with an expectation of confidentiality. In other words, preparatory materials and materials that may possibly be used in the work of a member of a legislature are also covered by privilege. Although the Speaker has no interest, as such, in whether or not a warrant issued-that is a matter for the courts-it is clearly his role to ensure that materials that are covered by privilege are not accessed by the police nor used by the police or the courts. To this end, he is somewhat critical of judicial officers who may not have known the scope of what they were being asked, most likely because they were not advised of the issue by the police.

Condemning the police, and the Commission, on whose behalf the police were acting, for nor respecting the privileges of the Assembly and its members, the Speaker also makes it clear that in the execution of any search warrants there must be a process in place whereby the Speaker, or a representative of the Speaker, is present either at the execution of the warrant or the triaging of documents to ensure that those that are protected by parliamentary privilege are segregated and not examined or used by the police. Again, the test is one of function not place. It does not matter whether the materials in question are in paper or electronic form, or whether the computers on which they are situated are wit in the precinct, the member’s home, or his pocket in the form of a cell-phone.

The Speaker calls for the establishment of a protocol for the issuance and execution of warrants along the lines of the protocol that is in place between the RCMP and the Canadian House of Commons. Speaking from experience, I can attest that there is a good working relationship between the House of Commons and the RCMP in the preparation of and execution of warrants that could involve the search of Members of Parliament, their offices, or their electronic devices. To date the RCMP has been cooperative in allowing counsel from the Office of a Law Clerk and Parliamentary Counsel for the House of Commons to attend at the execution of searches and the searches of computers to ensure that police only see and receive information that is not protected by parliamentary privilege. In carrying out that function counsel is careful to ensure that all that is protected from being taken is material that is protected by parliamentary privilege. As noted by the Speaker of the National Assembly, it is neither the role nor the place of the legislature or the Speaker to interfere with the conduct of police investigations or inquiries by state actors. However, it is always the place of counsel, the Speaker and the legislature itself to ensure that the police, the state and the courts who issue warrants recognize and respect the privileges and independence of the legislature and its members and that to interfere with members and their work is not only a breach of privilege but an unwarranted an unconstitutional infringement of the rights of members and an affront to democracy.

The ruling by the Speaker of the National Assembly is a welcome reminder, and an addition to the legislative jurisprudence protecting Democratic institutions from infringement by the state. Members of legislatures must be free to investigate, criticize, hold accountable and where necessary to condemn all state agencies and actors; to not be intimidated or harassed by state actors using the force and offices of the courts and the police; and to freely speak their minds regardless of how embarrassing or critical such investigations or comments may be to the state or its officials. The ruling reminds us of the importance of privileges and their protection of members carrying out these oversight functions within our democracy.

The Speaker’s decision can be found at http://www.assnat.qc.ca/en/travaux-parlementaires/assemblee-nationale/41-1/journal-debats/20171116