We Have Put the Speaker in an Unenviable and Untenable Position

There is a paradox to being Speaker of the House of Commons or a provincial legislative assembly in Canada.

Speakers of the House of Commons and provincial assemblies are elected from the membership of the assembly and therefore were elected in a constituency under a political banner, often that of the majority party in the House.  They are politically partisan immediately before their election as Speaker.  However once elevated to the position of Speaker take on the mantle of impartiality as well as the responsibility to ensure that the rights and privileges of all members and parties in the House are protected.  Not only are Speakers expected to ensure fairness in debate, but they are also responsible for allowing the House to hold the government to account and to protect the independence of the House from interference from all outsiders, including the government.   While government Ministers sit as members in the House, in their capacity as minister, they act outside of the House.   The tensions between the House and the government are able to be resolved based on the neutrality of the Speaker.  Neither favouring the government nor the opposition allows the Speaker the necessary independence to be a servant of the House.

At the same time, Speakers are required to seek re-election to the House at the next election.  And in Canada, they do so under the political banner of one of the political parties, in a fully contested partisan election.   Like all Members who will seek re-election, during a Parliament the Speaker as member and future candidate must be able to attend to the needs of their constituents with issues they might have with the government; must engage with their political constituency association, fund-raise for themselves (an by extension their party); be able to communicate with constituents on parliamentary matters;  and, engage with constituency stakeholders  who may be seeking assistance with government programs and ministers.  They must also seek and win the party’s nomination, and support and defend their party’s platform and record at the election.   Except for during the election period, these activities will take place while the person holds the position of politically neutral Speaker.

Over the last decade, there have been various times when there has been a collision, or near miss, at the intersection of these “requirements”.   One Speaker did not see the role of Speaker as a position to aspire to as the pinnacle of a parliamentary career, rather he saw it as a stepping stone to a post as minister, and leader of their political party.   Another Speaker acknowledged a constituent, on behalf of the House, for their community service, who unbeknownst to him was a former Nazi, and as a consequence was forced to resign.   A Speaker faced a vote of confidence for video well-wishes for a former party leader (at another level of government), while wearing his robes.  The same Speaker had a summer picnic in his constituency that was advertised on his political party’s website.  The invitation included criticisms of the opposition leader and his policies. The party later apologized, but this did not satisfy the opposition which brought a second question of confidence in the House.  In Saskatchewan, on the last day of a Legislature before a fall election, the Speaker lambasted the government house leader for continued pressure and criticism based on decisions made by the Speaker that allegedly favoured the opposition and allowed for criticism of the government.  The Premier responded to the criticism by stating that it was sour grapes because the Speaker had lost his nomination.  The Speaker had been a member of the party and held the seat for more than twenty years and had lost the nomination to a government backed candidate.

Except in the Saskatchewan case, none of the incidents occurred during a parliamentary proceeding, nor was there a direct connection to a proceeding.   Mose of the issues are about optics, politics and perception.   Almost all of the incidents noted were are related to the continued requirement that the Speaker remain invisibly tethered to their constituency and party and the need to win a subsequent election.

To date the resolution of these issues has been ad hoc.   Often the issue arises by way of a political debate with the opposition arguing that a line has been crossed, and the Speaker or those supporting the Speaker arguing that the line was not known, or that there was a misunderstanding of the situation at the time.  With the growth of social media, tribal (gotcha) politics, and as elections near, the momentary scoring of political points often trumps consideration of deeper issues.   Any potential misstep of the Speaker can be exaggerated if it can be tied to the government.  Whether the line has been crossed seems to be more of a political than a parliamentary calculus.

Placing the Speaker in a straight-jacket of absolute neutrality both inside and outside of the House hobbles the Speaker as a Member and weakens their chances at the next election.   The inability to participate in the necessary and expected activities of a constituency member, including policy discussions over policies they will need to defend in the next election, fundraising for their re-election, and nomination activities potentially hobbles their ability to be Speaker since they may leave the impression of partiality.  Limiting the Speaker from these same activities, particularly at the constituency level, which are the bread and butter of members of Parliament seeking re-election, puts the Speaker at an electoral disadvantage in their bid for re-election.  In addition, the more vocal and partisan a Speaker (as candidate) is during their re-election campaign, the more difficult it may be for them to be seen as being able to be neutral as Speaker in the following Parliament.

To date, the approach to any issue has been reactive and focused on the particular circumstances and concern raised.  For example, following the incident relating to the recognition of the former Nazi, the House of Commons put in place guidelines for vetting and recognition of guests.  In Saskatchewan, the Speaker waited until the last sitting day of a Legislature to expose attempts by the government to bully Speakers.  And there have been debates on these matters as questions of privilege and confidence in the Speaker, with the votes on the parliamentary question being considered the end of the matter.  But little attempt has been made to address the underlying problem the paradox presents.   It is time to have a serious pro-active examination of the roles and expectations of the Speaker in the House of Commons and provincial legislative assemblies, and their relationship to partisan electoral politics.

In some countries, when selected as Speaker, the member resigns from their political party.  They then run in the next election as an independent candidate unopposed (at least by the major parties).  Whether  this is seen as a “reward” for service, or with the expectation of favoured preference in the subsequent election as Speaker, it at least allows for a greater sense of neutrality in the Parliament they where elected Speaker  since they do not need to keep one eye on the House and the other on their re-election.  In other countries, there is the possibility of choosing a Speaker who in not a member of the Assembly, therefore they do not necessarily have the same political baggage.   Or it may be that after proper reflection, a set of rules and guidelines can be established to set out the roles of the Speaker within the House, and the expectation of Members, caucuses, and government officials so that the neutrality of the Speaker is not compromised.  Consideration may also need to be given to a cooling-off period between Speakership and future roles in government or leadership roles in the House.   At the same time, guidelines and expectations of a Speaker can be set out to guide them when engaging with their constituent association, their constituents through communications on parliamentary matters (householders at the federal level), constituent advocacy, nomination meetings, fundraising, and partisan activities during the election period.

Leaving matters to convention and common sense in a world of hyper partisanship, “relative truth”, social media and sound bites is not an option.   Clearer guidelines and understanding from all parties, preferably not in response to a current “crisis” of confidence, is required.  The role of Speaker is one that is important and integral to the functioning of all parties within Parliament and the institution of Parliament itself.  Protecting the Speakership from becoming mired in politics is imperative.  It is time to have a serious discussion about the kind of Speakership Canadians want and nee, in the twenty-first century.



Parliament has the Capacity to Limit its Privileges without Constitutional Amendment

The Ontario Court of Appeal, in the case of Alford v Canada (Attorney General) 2024 ONCA 306 recently confirmed the ability of Parliament to limit its privileges by legislation without necessitating a constitutional amendment.  The decision overturned a lower court ruling that found that since privileges were constitutional in nature, any changes required Parliament to go through the amending formula of the Constitution Act 1982 (2022 ONSC 2911 and blogpost https://lexparl.com/2022/06/ ).

Like many western democracies, Canada was faced with developing a mechanism for Parliament to hold government to account for all matters, including national security, and also protecting against potential disclosure of serious national security information that could harm the security of the country or its citizens.  The solution settled on was the creation of a National Security and Intelligence Committee of Parliamentarians.   The Committee was not a committee of either House nor a joint committee.   It was established outside of Parliament as a way for the government to share sensitive information with parliamentarians, and to allow for reports to be prepared by the committee, vetted for potential damaging information, then tabled in Parliament.  One aspect of the Act that created the committee provided that parliamentarians were sworn to secrecy and that if they divulged certain information received as a member of the committee they could be prosecuted.  This included divulging the information in Parliament.  In short, members could not use the protection of parliamentary privilege as a defence.  By way of the provision, Parliament had limited an aspect of its privilege of freedom of speech, in a targeted way (only divulgation of specific information relating to names, intelligence sources, and “special operational information” could result in direct prosecution).

Mr. Alford argued that the freedom of speech in Parliament was a fundamental constitutional principle underlying the entire Westminster system of government and that Parliament could only restrict its application through a formal constitutional amendment.  Although he was successful at the trial level, the Court of Appeal rejected his argument.

There were two bases for the Court of Appeal’s decision.  The first, and most succinct was that the Constitution Act, 1867 specifically allows for such legislated limits on privilege.  Section 18 of the Constitution Act, 1867 provides:

18 The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

The court found that, “[t]he language of s.18 plainly and unequivocally gives to Parliament the plenary and continuing legislative power to define parliamentary privileges, immunities and powers by way of duly enacted legislation…s.18 places no limit on how Parliament can “define” its privileges.” [para 43] The court went on to state that “s.18 applies to all parliamentary privileges” including those inherent in the role of Parliament, such as the fundamental principle of free speech.

The second, related reason articulated by the court was that one of the “fundamental organizing principles of the Canadian Constitution” is the independence of Parliament from the government and the courts.  Within this context it is “fundamental that Parliament control its own procedures”. [para 47]  Section 18 of the Constitution Act, 1867  is recognition of the independence of Parliament and its sole constitutional ability to determine how, when and if to limit or exercise its privileges.

While not necessary to its reasoning, the court addresses the particular circumstances facing Parliament.  The court writes:

“It is important to bear in mind that this is not a case in which the executive or a third party seeks to limit the scope of an asserted parliamentary privilege…Rather this is a situation in which Parliament has chosen, through legislation, to limit its own privileges, powers and immunities to enhance Parliament’s ability to oversee certain government activities.  Interpreting s.18 so as to permit legislation like [the sections at issue] is consistent with the fundamental principles underlying Canadian democracy.” [para 48]

In reaching this conclusion, the court was not unaware of the limited nature of the Act, and that in most aspects the ability of either House of Parliament to carry out their constitutional function of holding the government to account, even for national security, is not impaired to any extent.  As noted, the legislation restricting disclosure only applies to those Members and Senators that are on the Committee of Parliamentarians (as a government not parliamentary body).  And it only applies to very particular information, the making public of which would affect specific individuals, information gathering or ongoing operations.   There are no other restrictions.

It is first worth noting that the legislation in no way limits the Houses themselves.  Given the limited nature of the specific information that cannot be disclosed, there is little restriction on the overall capacity of the Houses to hold the government to account.  Most of the “policy” aspects of national security as well as how the government manages security matters (internal government operations, spending etc.) would still be fully open to the House to discuss and debate.  The Committee process allows for consideration of reports (potentially redacted in some respects), based on fuller facts but in a manner that avoids national security “leaks”.   While the Committee members are parliamentarians, the process is not that different from the preparation and consideration of an Auditor General’s report.  These outline problems and issues, and outline fact patterns with some example, but without granular details of individual transactions.

In any event, the legislation does not indicate that the use of the Committee of Parliamentarians is the only way that the government can be held to account by the House for national security, in any of its manifestations.  It in no way limits the Houses’ ability to establish its own committee(s) to make such inquiries, and to request any information they want.  The Act does not limit the scope of any such parliamentary inquiry, nor does it allow the government to withhold any information from such a committee.  [para 56] The court indicates that the House could make any order it believes necessary in such circumstances, and that any such order would not only be enforceable through parliamentary means (and sanctions) but that compliance with such orders would likely provide a defence to any government official making the disclosure since, in addition to privilege protecting the official, the provision of the information to Parliament would be “required by …law”. [para 23]

If the government were to abuse the process set out in the legislation and not provide the information that would allow the Committee to its required access to all information necessary for it to report to Parliament in a manner that allows the House to hold the government to account, Parliament remains able to get what it needs through its long established processes and procedures set out above.  And if the government continues to stall, it is always open to Parliament to repeal the legislation, thus exposing the government’s desire to avoid parliamentary scrutiny.

As the court concludes, the legislated limitation on free speech “stops short of anything approaching a constitutional renovation, or an embargo on parliamentary oversight of matters pertaining to national security.”

Extraordinary Proceedings Must Still Respect the Plight of Witnesses

The House of Commons has been directed to conduct an extraordinary proceeding on Wednesday April 17.  Such a proceeding has not been used or contemplated in over a century.  A private individual, who has been found in contempt by the House for failing to answer questions before a parliamentary committee, will be called before the bar of the House to be admonished, and to be subject to questioning by MPs.  The basis for the finding and the process to be followed is found in the following motion of the House, adopted April 8.

[T] The Houe having considered the unanimous views of he Standing Committee on Government Operations and Estimates, expresses in its 17th report, find Kristian Firth to be in contempt for his refusal to answer certain questions and for prevaricating in his answers to other questions and accordingly, order him to attend at the bar of the House, at the expiry of time provided for Oral Questions on Wednesday, April 17, 2024, for the purposes of :

  • Receiving an admonishment delivered by the Speaker,
  • Providing responses to the questions referred to in the 17th
  • Responding to supplementary questions arising from his responses to the questions referred to in the 17th report

Provided that

  • During Mr. Firth’s attendance at the bar for the purposes of responding to questions, which shall be asked by Members, with questions and answers being addressed through the Speaker,
    1. 10 minutes be allocated to each recognized party for the first and second rounds in the following order: Liberal Party, Conservative Party, Bloc Quebecois and New Democratic Party,
    2. During the third round, five minutes be allocated to each of the recognized parties with an additional five-minute period for the Green Party,
    3. Within each of the 10 or five-minute period of questioning, each party may allocate time to one or more of its members,
    4. In the case of questions and answers Mr. Firth’s answers shall approximately reflect the time taken by the question,
  • At the expiry of time provided herein, and after Mr. Firth has bee excused from further attendance, the House shall resume consideration of the usual business of the House for a Wednesday,
  • It be an instruction to the Standing Committee on Government Operations and Estimates to consider Mr. Firth’s testimony at the bar of the House and, if necessary, recommend further action.

This process, while the logical progression through the parliamentary process, raises numerous questions and challenges for a Westminster Parliament.

In this particular instance, a private citizen having dealings with the government, has refused to answer questions before a parliamentary committee investigating the processes whereby the individual’s company was awarded sizable government contracts.   The process was also the subject of a report of the Auditor General who has also sent their report to the RCMP for further investigation.  At the committee hearings, the individual refused to answer certain questions on the basis that he might be the target of the police investigation.  In short, he is claiming that his answers might incriminate him.   In a letter to the committee, Mr. Firth not only shares his concerns relating to the potential risk of a criminal investigation based on his answers but also raises concerns relating to the “lack of fairness” and the politicization of the process wherein his reputation is at risk.

As the proposed proceeding replicates the committee process, but with greater publicity and higher political stakes, the concerns raised remain unresolved.   While it can be argued that Mr. Firth could have avoided this raising of the stakes by answering the questions in the first place, and that the whole point of the escalation from committee to the House is one that is intended to pressure the witness by increasing the consequences, however, the underlying issues of the respect for the independence and separation of Parliament from the administration of justice, and the protection of otherwise protected rights of private individuals who participate in parliamentary proceedings.

There can be no argument that the House of Commons and its committees are entitled to all information they request.  Witnesses are required to provide all such requested information, and there are no specific legal or constitutional bases on which information can be withheld.  At the same time, all information provided to the House, and all witnesses who appear before the House are protected by parliamentary privilege.

However, the application of the protections of parliamentary privilege is not always easy or evident, particularly when it is applied to and by those outside of Parliament and the government.  It is not easily understood that information provided in a parliamentary proceeding, for use by the committee and the House, is not considered to have been publicly disclosed.   Evidence and information provided by witness to a committee becomes the property of Parliament not the public. It is not information that is publicly available in the legal sense.  At the same time, there is an expectation that the business of the House of Commons, particularly with respect to its function of holding the government to account, will be transparent and fulsome.  It is the role of the House to explore and expose government operations so that the public is able to carry out its function of judging the actions of the government and the opposition at the next elections.

The balance of interests between the House and the government, though partisan and adversarial, most often only involves those within the government providing information to the House.  However, there are many occasions when the work of the House requires assistance from individuals, such stakeholders and those seeking to inform the House of a particular viewpoint, or in order to bring matters to the attention of the House. At other times a committee may call witnesses to help them better understand the operations of the government.  In some cases, witnesses are reluctant to attend and need to be compelled.  However, in all cases the only constitutional purpose of the committee or House proceeding is to hold the government to account, and witnesses are there to assist (even if reluctantly) in these inquiries.   Since the role of the committee is to hold the government to account, not the private individual, there may be times when private interests of the individual, that are not the proper business of the House to inquire into ,  are put at risk and therefore steps are taken to limit the impact that the inquiry may have on those interests. In all cases, the greater the interest at stake the greater the care of the House to protect it ought to be.  The risk of criminal prosecution is one of the greatest.

There are three competing principles relating to the relationship between Parliament, individuals appearing as witnesses and those responsible for the administration of justice.   First, it is the role of Parliament to hold the government to account.  It is not the role of Parliament to hold individuals accountable since their actions are not governmental.  However, how the government interacts with individuals is subject to parliamentary accountability.

Second, the participation of any witness before a parliamentary committee is protected by parliamentary privilege.  This includes protection from information provided in a parliamentary proceeding being used in any proceeding outside of parliament, particularly criminal or civil proceedings.  Since such evidence is privileged, it cannot form the basis for, or be used as part of, an investigation that would have consequences for the witness.

This is related to the third principle. In all other instances where an individual is compelled to give testimony (i.e. in criminal, civil, or administrative proceedings) the individual has constitutional protections found in the Charter of Rights and Freedoms¸ and the common law, from having incriminating testimony used against them in any other proceeding.  Since the Charter does not apply to parliamentary proceedings as such, the protections of parliamentary privilege, which are also rooted in the Constitution¸ have the same force and effect the Charter protections.  It is this protection that allows Parliament to compel full answers without fear of them being put to further, or other, use.

It is therefore incumbent on the House of Commons to make it clear to the witness and to those who might be tempted to use information gleaned from parliamentary proceedings that the House of Commons will take all necessary steps, including going before a court on behalf of a witness, in order to protect its privileges and the testimony of witnesses from any use by authorities outside of Parliament.  This includes protecting the information from use by the police for investigatory purposes.  If the House is not prepared take such steps, then the witness has no protection.  Instead of protecting the rights of citizens, it would be exposing them to a risk that would not occur in any other circumstances.

The House of Commons should not allow itself to become an investigative body in aid of the police, who are a direct agent of the Crown.   The police and the Crown exercise state powers that are properly constrained by the Constitution.  As part of the “Crown” police and crown attorneys are accountable to Parliament through the appropriate ministerial accountability frameworks for such state actors.   This accountability requires the separation and independence of the House from the police and their investigations.

In addition, a degree of sensitivity by Parliament is required so as not to put any current or future investigations at risk by placing the police in a constitutionally untenable position.  In a case where information from a proceeding in Parliament is used in a manner that jeopardizes a person, the police will have violated the privileges of Parliament.  Since parliamentary privileges are constitutional in nature, the use of such evidence is unconstitutional and could taint any related investigation and subsequent prosecution.

That the House ought to proceed with a degree of caution in order to protect the rights of individuals in the context of legal risk is not an unknown concept.  For example, the House respects the convention of sub judice whereby the House will avoid directly discussing matters that are before the courts so as to ensure that the interests of the parties before the courts are not influenced by proceedings in Parliament, including perceived political and public pressure.  The underlying rationale is that each branch of the state must be free to operate without interference from or confusion with the others.   In cases of police investigations and the potential risks that flow both from the application of privilege outlined above, and when an individual would have rights in all other compelled testimony environments, the House might want to consider how to exercise similar restraint.

From a purely legal and constitutional perspective the House of Commons is not compelled or constrained to follow any particular procedure, or to strictly adhere to any legal or constitutional norms or limits, other than the limits of its constitutional functions.  Its powers are broad and not subject to judicial review or scrutiny.  At the same time, the House and its committees do not carry out their functions in a vacuum. There is an expectation that they will act fairly and in a manner that does not place any individual unnecessarily at risk.  To the extent possible they should strive to proceed in a manner that respects the law, particularly constitutional rights, to the fullest extent possible, albeit in a parliamentary context.  In essence, the House and its committees ought to adopt practices and procedures that allow them to carry out all of its functions, including obtaining all the information required to hold the government to account, while at the same time respecting the principles that underlie the statutory and constitutional protections of compelled information.

There are numerous instances where the House of Commons and its committees have sought information from the government that is protected from public disclosure (or for which disclosure would be an offence), including national defence (Afgan detainees intelligence), international intelligence (Winnipeg lab classified research) and information protected by the Privacy Act and the Access to Information Act. There have also been instances where the disclosure of information could cause harm to individuals (working conditions at foreign mines owned by Canadian companies) or risks to business interests and practices (meat packers and abattoirs during mad-cow disease and beef pricing discrepancies).  In all of these cases the House and its committees were able to put in place processes that allowed the committee and House to obtain full information (or at least the information required to complete their work) and carry out their constitutional functions.  Information held by a witness that, if divulged, might incriminate them is similarly protected by law and the constitution.  Requiring a witness to divulge such information, without adequate protection puts them equally at risk of prosecution, a steps to mitigate the risks should equally be put in place.

While each situation may require a bespoke solution, the House and its committees have various ways to respect the rights and interests at stake.  These solutions are not exhaustive.  A situation may require a combination of tools, or the development of a new approach or procedure.  Some possible solutions may include: requests for information in writing, whereby the committee can consider appropriate redactions before responses are placed in the publicly accessible parliamentary materials;  hearing witnesses in camera with the committee then deciding how to consider the evidence and how to report its findings in a manner that protects the rights or interests;  or, the committee, in combination with these protective proceedings can report in a manner that protects the information or witness’s interests;  committee can report in such a so as to avoid names or other identifiers by giving individuals numbers or other signifiers;  and the report can make it publicly clear and explicit that the information contained in the report is protected by parliamentary privilege and cannot form the basis for any administrative, criminal or civil liability.

Although the matter, is at present before the full House of Commons most of the required accommodations and solutions fit best within the committee environment.  Committees are better equipped to seek particular answers and to deal with any competing individual rights that might arise.  It is doubtful that there is a meaningful way for the House itself to reconcile the rights at issue.  Unless the House is fully convinced that the committee has taken all steps to reconcile these interests and that the individual, despite being offered the necessary accommodation or explanation is still recalcitrant, the motion should be reconsidered and the matter sent back to the committee on the understanding that a way to seek the information be worked out, and that failing that the House will take up the matter.  The Speaker, when faced with similar arguments made by the government for not providing evidence based on legal or constitutional reasons for not providing information (Afghan detainees, and Winnipeg labs), requiring the documents to be provided while at the same time encouraging the House to find a workable accommodation process to obtain the information while respecting the underlying principles in the law which protected the information from public disclosure.   Invariably an accommodation was found, involving bespoke committee procedures.

It is not too late for the House to reconsider whether such a direction should be provided to the committee, before the House intervenes in a manner that may not be able to protect the witness. If the witness continues to refuse an accommodation by the committee, or to provide information within the accommodation, the House would still have the ability to proceed as set out in the motion in order to assist the committee.   If, however, the House chooses to go forward with the process set out in the motion without referral back to the committee, the Speaker, who is the guardian of the privileges of the House of Commons, should consider making a statement that the witness enjoys the full protection of the privileges of the House of Commons and that the use of their evidence for any investigation or subsequent prosecution of the witness would be a breach the privileges of the House.

We live in an era when governing and accountability are more complex. There is a greater integration of public and private activities.  Governments intent on fiscal savings and flexibility look to contracting for the provision of services and programs.  The public demands more of government both in programs and in curbing and regulating business. In addition, there is a greater focus on rights (both constitutional and legal) and a expectation of fairness.   And there is a growing use of social media and expansion of the dissemination of and commenting on information that often seems to result in conflicting rights.  This combination of factors has led to a greater need for committees and the House to engage with private individuals and businesses.  To better understand how government operates, and for parliament to better be able to hold government to account for its operations, there is greater reliance on non-governmental witnesses who primarily operate and carry out their lives and business in the private sector where the rights, processes and responsibilities are different.  Whereas the House, when historically holding the government to account, might not have had to focus on the rights and interests of witnesses beyond their governmental responsibilities, they must now do so.  Processes and perspectives designed since the 17th century, focussed almost solely on the government, that functioned effectively into the mid 20th century, need to be adapted.  Parliamentarians now need to account for the fact that many of the witnesses called before a committee have individual rights, protected by law and the constitution, that might be affected by the processes of the House.  While the House must retain the right to all information required to carry out its functions, it has a responsibility to do so in a manner that infringes the rights enjoyed and expected by individuals by virtue of the law and the constitution to the fullest extent possible.

Whether the House chooses to do so on a bespoke basis or on a more general process design basis is for the House to decide.

Although the courts have been tolerant and deferential to the House whenever attempts have been made to have the courts consider matters occurring in proceedings, there is no guarantee that they will not use their authority to examine and define the scope of the powers and privileges if the House fails to protect the rights of individuals.

As the Supreme Court in Vaid v (Canada)  House of Commons)  reminds all concerned

 “There are few issues as important to our constitutional equilibrium as the relationship between the legislature and the other branches of the State on which the Constitution has conferred powers, namely the executive and the courts.  The resolution of this issue is especially important when the action of the Speaker sought to be immunized from outside scrutiny is directed against a stranger to the House (i.e., not a Member or official) who is remote from the legislative functions that parliamentary privilege was originally designed to protect.”


“ It should be emphasized that a finding that a particular area of parliamentary activity is covered by privilege has very significant legal consequences for non-members who claim to be injured by parliamentary conduct, including those whose reputations may suffer because of references to them in parliamentary debate, for whom the ordinary law will provide no remedy.”

It therefore up to the House to take responsibility to properly balance the rights and interests at stake.  The present circumstances facing the House provide the perfect opportunity to do so.

When the Speaker Resigns follow-up NYT Canada Letter September 30, 2023


When a Speaker Resigns…

On September 22, 2023 during a special sitting of the House of Commons at which the President of Ukraine was to address the House, the Speaker acknowledged the presence in the gallery of a constituent of his.  Unknown to the Speaker, or apparently to any other Member, the constituent had been a member of the German SS during the second world war.  Within hours the constituent’s past was ascertained and divulged by Jewish leaders and others who pointed out the involvement of the constituent’s SS unit in atrocities against Jews and civilians during the war.

Immediately there were demands for an apology from the Speaker and the beginnings of suggestions that the Speaker resign.

By September 25, when the House next met, the significance of the situation and profound error was evident.    The real pain and shock of members of the Jewish community, human rights advocates and many ordinary Canadians had manifested itself though social media platforms and in public statements.  That the events and occurred on the eve of Yom Kippur, one of the holist periods in the Jewish calendar, made the situation even more painful.  Complicating matters politically was the use to which Russia and others would be able to exploit the incident to “demonstrate” pro-Nazi sympathies in the west and in Ukraine.

On September 25, the Speaker made a heartfelt apology for both inviting the constituent to attend and sit in the gallery of the House, and for praising him in the manner that he did.  During the apology the Speaker made it clear that the decision to invite the constituent and to acknowledge his presence was the Speaker’s personal decision and that the invitation had been made by him directly.

Despite insinuations by the Official Opposition, including a former Speaker, that the invitation was at the request of the government, or at least that the government knew and was complicit, it is rightly asserted by the Speaker that he would have acted on his own initiative.  Any other suggestion is to question the impartiality and political neutrality of the Speaker and the role of the Speaker.  Even suggesting that the Speaker had or ought to have advised the government itself suggests the politicization of the position of Speaker.  That the Speaker acted independently of the government in this case is not only evident from the statement of the Speaker and statements from the Prime Minster, but from the personal and emotionally charged pain of the Government House Leader, who is a descendant of a holocaust survivor most of whose family were victims of the Nazi regime.  Any contact with the government by the Speaker would have been with the House Leader’s office, and any suggestion of co-operation or knowledge of the government in these circumstances is difficult to believe.  The attempt by the Official Opposition to make any such connection, without evidence, is itself a threat to the office of Speaker, and should be condemned for its political overreach.

That the Speaker acted alone is evident.  As such, any consequences or corrective action is a matter for the House, to which the Speaker is accountable, to consider, not the government.  It is appropriate that any consequences for the actions or failings of the Speaker are the responsibility of the House.  An independent and politically neutral Speaker is necessary both for the House to function and for public trust in the institution.  He was elected, by secret ballot, by all Members of the House, both government and opposition.  As such the relationship of all members equally.  His actions and his words are made by the House and is for all members.  It is obvious that in this case his words and actions, albeit unbeknownst to the Speaker at the time, were hurtful of some members personally and clearly not reflective of the views of the House and its members.  It is therefore up to Speaker and the House to resolve the issue.  Whether the House accepts the apology of the Speaker and whether the House has continued confidence in the Speaker to act as their public face and representative is for the House and the Speaker to work out.  There have been many calls for the Speaker to consider resigning in light of these events.  There may also be consideration by some Members to present a motion of non-confidence in the Speaker which would compel the Speaker to resign.

The resignation of the Speaker, voluntarily or forcibly, during a period when the House is sitting is almost unheard of in Canadian history.  With limited exceptions, most resignations have occurred when the Parliament was prorogued (between sessions) with the House being able to select a new Speaker at the beginning of the next session of Parliament, or during a long adjournment when the House could plan for an election of a Speaker at the next sitting.  How to proceed in the present situation is somewhat uncharted.

Constitutionally there must always be a Speaker of the House of Commons.  The House cannot sit or hold proceedings without a Speaker.  While there is a Deputy Speaker of the House, he or she can only act when the Speaker is temporarily absent.  Temporary absence is different from a vacancy, and therefore the Deputy Speaker could not act if the Speaker resigns.  The House would have to immediately cease its business until a new Speaker is elected.  In order to avoid such an abrupt break it is for the Speaker to provide notice that he “intends” to resign (Standing Orders s.2(2)), with some time fixed in the future to allow for the processes to be put in place to elect a successor.  The Speaker has indicated that he will be resigning at the end of the day September 27, 2023.  Until the House elects a new Speaker, the House cannot conduct any business.  Unless the House proceeds to elect a Speaker on Thursday morning, the House cannot sit to hold normal proceedings.

How and when the election of a new Speaker is elected is a matter for the House to decide.  The Standing Orders of the House of Commons provide that members “when they are ready, shall proceed to the election of a Speaker.”  Unless the House adjourns, the Speaker must remain in place until the new Speaker is elected.  It must be made clear when the Speaker is in fact resigning.  If the House chooses, it can continue to sit until the new Speaker is elected, with the present Speaker presiding.   If the Speaker chose to be temporarily absent until the election of the new Speaker, the Deputy Speaker could manage the sittings of the House, but he or she would not “be” Speaker as such.   IF the Speaker has resigned Deputy Speakers cannot act. At the same time, it is clear from the precedents and rules that the election of a Speaker takes precedence over all business of the House.  While this supports the position that the House cannot conduct any business without a Speaker, so election of a Speaker must come first, in the case of a resignation, it is also indicative of the priority of the election, and that it should take place as soon as possible.

The process for election of a Speaker is set out in the Standing Orders of the House.  Where there has been an intention to resign, and if the Speaker remains a member of the House, the Speaker will preside over the election.  If the Speaker is no longer a member, the member of the House with the longest seniority who is not a member of cabinet or the Leader of the Opposition will take the chair to conduct the election.  Theoretically all other members are eligible to be Speaker and normally the process is to allow for a period of time for members to have themselves removed from the “ballot”.  At the election sitting, the chair can allow those who still wish to be considered to speak for five minutes, after which a secret ballot is taken.  Until 2021, a series of ballots would be taken (with the member with the fewest votes being dropped in subsequent ballots) until a majority was reached.  In 2021, a single ranked ballot process was used. This is the process most likely to be used in any subsequent election.   Once the election process is begun, it takes precedence and will continue without any interruption or adjournment until a new Speaker is chosen.  Once elected the new Speaker immediately takes the chair and becomes Speaker.

It is important, for the sake of the House, and public confidence in the House, that the matter of confidence in the Speaker be resolved as quickly and in as orderly a fashion as possible.  As I write this the Speaker of the House had met with the various House Leaders, and he has indicated that he will resign at the end of the day on September 27.   One hopes that that a calm and neutral process will be established for the election of a new Speaker.  All parties should recognize that this a House matter, not a government or political one; so that the dignity of the House is not impaired.  This is a challenging time for the House that requires members to act as parliamentarians not politicians.

The Speaker must be careful in how his resignation is handled. Unless he provides an intention to resign to match the date of the election it will be difficult to manage a smooth transition to a new Speaker. Proper notice of intention will all the House for an orderly transfer of the constitutional office of Speaker of the House of Commons to take place.

In addition to the possible election of a new Speaker, consideration of how this error in judgement occurred needs to be addressed.  Once again this must be done by the House itself.  The House of Commons is independent of the government and therefore, unless there is a specific request for information made from the office of the Speaker, for use by the Speaker, there is no requirement for the Speaker to advise the government, or anyone outside of the House, of any intention of the Speaker to act or speak. The term Speaker is indicative of this responsibility.  The Speaker speaks for the House.  He is the only person who can.  And with this comes a great responsibility.   It is the responsibility of the Speaker, as a servant of the House, to ensure that his actions and words reflect the position of the House, or would, by implication, reflect well on the House.  The Speaker’s office is resourced by the House, and one of the primary roles of the House Administration is to provide independent support and advice.  It is up to the Speaker and the House to ensure that those resources are used, and that a process is put in place to prevent similar incidents from occurring in the future.

It is possible to learn from this experience. While the Speaker may need to resign and a new Speaker be elected, all parliamentarians and especially future Speakers have a responsibility to put in place processes that ensure that when the Speaker speaks, he or she speaks on behalf of the House and the Canadian public that the House embodies.  And that speech needs to be fully informed and considered.

Expanding Parliament Hill: Civic Space is No Place for Parliament

A year after the attack on the Capital Building in Washington D.C. on January 6, 2021, Canada saw a two weeks-long trucker’s blockade of Wellington Street in Ottawa, a street that runs along the southern boundary of Parliament Hill.   These incidents once again focused the attention of parliamentarians on issues of security and potential threats from outside the buildings in which they conduct their business.   Questions of security were no longer limited to protecting members within the capital building, or the Parliament Buildings, they focused on whether and how to create a buffer zone around the buildings.

In December 2022, the Canadian House of Commons’ Standing Committee on Procedure and House Affairs tabled a report entitled “Protecting the Parliamentary Precinct: Responding to Evolving Risks.”   The two key recommendations are:

That the government and its partners continue their current consultations and discussions with relevant stakeholders regarding the potential expansion of Parliament Hill onto Wellington and Sparks streets, along with the potential redevelopment of these streets…


That the federal jurisdiction for the operational security of Parliament Hill be expanded to include sections of Wellington and Sparks streets and, if necessary, that a transfer of land take place between the City of Ottawa and Public Services and Procurement to allow for Wellington Street and Sparks Street to become part of Parliament Hill

The effect of implementing these two recommendations would be to expand Parliament Hill, which now only encompasses the Parliament Buildings and lawns surrounding them, expanding to include two or three streets, as well as government offices including that of the Prime Minister and Privy Council and various businesses and residences.   Also, the primary entity for providing security, but not necessarily policing, would be the Parliamentary Protective Services, which is under the joint responsibility of the Speakers of the House of Commons and Senate.

The report, the supporting evidence, and the recommendations unfortunately lack the necessary clarity and understanding of parliamentary versus government responsibility to provide a clear roadmap. Or worse, it provides a roadmap to unintended legal and constitutional problems which any plan for security must avoid.

The fundamental failing of the report and its conclusions are evident from the beginning.   In the opening section the committee effectively dismisses any distinction between the “parliamentary precinct” and “Parliament Hill” as either one of legal definition or mere terminology.  At page 8 of the report the committee writes:

It may be worth noting that the term parliamentary precinct, in these above definitions, refers to the interior of the physical envelope of a given building occupied by Parliament for its corporate purposes. Meanwhile, the physical area surrounding the parliamentary precincts (i.e., roads, sidewalks, etc.) is not, at present, considered part of the precinct. To that end, the grounds of Parliament Hill have not been considered part of the parliamentary precinct.13

Despite legal or historical definitions, many people, including some witnesses who appeared before the Committee, colloquially refer to the whole of Parliament Hill and its surroundings as the “parliamentary precinct.”

Throughout the remainder of the report, the committee essentially makes no distinction between the use of the terms, nor does it make any effort to ensure that witnesses understand the significance of the distinction when discussing or making recommendations with respect to policing, governance, accountability, and the constitutional separation of powers.

At no point, other than in the physical definition outlined above, does the committee make any effort to understand or identify the significance of the concept of the “parliamentary precinct.”

There are constitutional consequences to the parliamentary precinct being “parliamentary”.   It is not merely a collection of buildings or spaces where parliament conducts its business.  It is a space over which the constituent parts of parliament, the two Houses, have exclusive jurisdiction.  As a result, all decisions relating to the premises and their use are protected by parliamentary privilege.  Anyone within the parliamentary precincts comes under the authority of the Houses, and their Speakers. Decisions relating to the use and configuration of the space, the presence of “strangers”, , and all matters of security are made by the Houses (or their officers such as the Speaker, Clerk, or Sergeant-at-arms) and are an exercise of privilege. Any expansion of the precincts would puts all persons and premises within the new boundaries inside the scope of such exclusive jurisdiction. With such jurisdiction, the Houses and their members would become responsible for all decisions relating to the occupation and use of the space.

In the area of security, which was the main concern of the committee, the relationship to privilege and the jurisdiction of the Houses rests on the ability to exclude strangers, including agents of the state, particularly the police.  Decisions relating to security such as physical removal and barriers to access are exercises of privilege that are not reviewable in the courts, nor are they actionable by way of tort claims relating to the use of force or defamation.  Significantly, as exercises of constitutionally entrenched privilege, the Charter does not apply so as to create any action or constraint on the exercise of the decision-making responsibility.

Parliamentary precincts and parliamentary privileges relating to use of space and exclusion of strangers are inextricably entwined. They are effectively synonymous. Space seen as precincts provides exclusive jurisdiction to the Houses to administer and protect. Equally, the extent of the Houses’ privilege which is necessary for the business and functions of the House and its members defines the precincts. Regardless of which analysis is followed, there is a line where the scope of precincts and the attendant privileges must align.

Given the fact that privilege grants and protects specific jurisdiction beyond the reach of government (including policing) and the courts, and given the potential effects on “strangers” and rights they enjoy outside of the precincts, courts have limited the scope of precincts to what is necessary for parliamentary functions.  Outside that space is the point where the jurisdiction of the courts, police and individual rights are properly engaged.

Historically, the boundary between the two has been the “walls” of Parliament.  In the UK this is the envelop of the Palace of Westminster, and in Canada that of the Parliament Buildings.  More recently the courts have recognized precincts to include buildings, or parts of buildings, that house parliamentary offices and other parliamentary spaces.  But in all cases the concept of precinct has had a definition that only reaches to spaces where parliamentarians carry out their functions and over which it is necessary for the Houses or Speakers (on behalf of the House) to have exclusive jurisdiction and exercise privilege.  In some cases, the courts have also recognized a relatively small buffer zone around buildings where privileges might be exercisable when there is a physical threat to the buildings (attacks on the outside walls that threaten the buildings or to gain access) or where space needs to be created to allow members and those having business with parliament to access the precincts.   Sometimes these “outside” actions are carried out by security services of the House “pushing out” the buildings’ perimeter, or by outside police being engaged by the House to protect its precincts and its privileges, including ensuring that members and those attending parliament to have unimpeded access.

In all cases, the identification of precincts and related privileges are limited and focussed on Parliament itself.  Relevant questions of security are only those which relate to the security of parliament and parliamentary institutions. Any engagement with the public has been as strangers to parliament and any “threat” they might pose to parliament and its proceedings.  Again, this is related to the extent of privilege.

Jurisdiction for security within the precincts has always rested with the Houses themselves and not the executive or the police.  As early as 1415, Parliament was concerned with how to protect itself.  As a result, the king provided one of his Sergeants-at-arms as a gift to the House of Commons to provide protection, in the name of the king, but under the sole direction and authority of the House of Commons.  There then developed an internal security apparatus under the Sergeant-at-arms to protect the precincts.   Since the Sergeant-at -arms was under the direction and authority of the House his actions were fully protected by parliamentary privilege.  The same arrangement was constitutionally entrenched in Canada through the preamble to the Constitution Act, 1867.

The authority of the Sergeant-at-arms ended at the edge of the precincts, where it met the authority of the Crown and the police who were responsible for public, not parliamentary, peace and order.  In Canada, the dividing line had historically been the walls of the parliament buildings.  The result was that House security personnel, under the Sergeant-at-arms, was responsible for security within the buildings and the police were responsible for security and policing elsewhere on Parliament Hill and beyond.

In 2014 a gunman entered the Parliament Buildings after having killed a ceremonial guard at the National War Memorial a few blocks away.  He was eventually shot by the Sergeant-at-arms.  Following this incident there was a call for reform of security on Parliament Hill and within the precinct.  The result was the creation of the Parliamentary Protective Service (“PPS”) that was given responsibility for providing “operational security” within the precincts and on Parliament Hill, while the police retained jurisdiction for policing on Parliament Hill.  This arrangement was carefully constructed to respect the distinction between the parliamentary precincts and an area outside of the precincts.  The PPS was established under the Parliament of Canada Act, a constitutional statute that organizes matters under the authority of either House, either Speaker, or jointly.  The Speakers “as the custodians of the powers, privileges, rights and immunities of their respective Houses…[are] responsible for the Service.”   Protocols were established between the Minister of Public Safety and Emergency Preparedness and the Speakers to ensure that the privileges of the Houses were guaranteed, and any involvement of the police in the provision of security would be “in accordance with the arrangement.”  The Act further affirmed that the creation of the PPS did not “limit in any way the powers, privileges, rights and immunities” of the Houses.  In short, a security service was created within the existing constitutional framework.  The police, as police, were excluded from the precinct, except with the permission and on terms agreed with the Speakers (the arrangement), and security personnel could provide physical security, but not policing, in the area outside of the precincts.  All of which was under the joint responsibility of the Speakers.

The constitutional paradigm that rests on the concept of “parliamentary precincts” and the related privileges therefore currently remains intact.  Since parliamentary security now encompasses the grounds which surround the main Parliament Buildings in order to ensure that buildings off Parliament Hill were still covered by parliamentary privilege, a working definition of “parliamentary precincts” was necessary.  Since the police were now going to play a role in physical security it was also necessary for the Act to have a definition which provided for the delineation between public and parliamentary jurisdiction.  While the definition of “parliamentary precinct” might on its face appear to be a physical description, it is actually one that maps onto the constitutional functions carried out within the space, which functions are those protected by parliamentary privilege.   The key concept in the definition is the word “used” by the two Houses, the Library, committees, various officers of the Houses, and members who are carrying out their parliamentary functions.    These are all entities that fall within the exclusive jurisdiction of the Houses and Speakers, and are integral to the two Houses carrying out their parliamentary functions.

What was significant, with the creation of the PPS, was the expansion of the role of the combined security personnel of the two Houses which had previously been limited to providing security within the precincts, as an incident of parliamentary privilege.  Security personnel were now being used to provide physical security (but not policing) on the grounds surrounding the Parliament Buildings.

By the terms of the Act, and the arrangement, the Speakers as guardians of the rights and privileges of the House took on responsibility for the security of not only the precincts but Parliament Hill.  This has both constitutional and practical consequences for the Speakers, and as a result for each House and its members.  While it is often thought that Speakers are individuals who have particular authority to manage the affairs of their House and to act independently in that capacity to carry out their functions, this is not the case.  Speakers are the embodiment of their House.  They are the spokesperson of their House to the outside world, however they do not have any capacity that is independent of the House itself.  As Speaker Lenthall famously stated in 1642, “I have neither eyes to see nor tongue to speak in this place but as this house is pleased to direct me whose servant I am here.”   This sentiment is carried into the provisions of the Parliament of Canada Act that create the PPS.   The Speakers are responsible for the Service “as the custodians of the powers, privileges, rights and immunities of their respective Houses and of the members of those Houses.”     In short, members are, through their Speaker, responsible for the provision of security within the precincts and on Parliament Hill.

The expansion of the provision of “operational security” to Parliament Hill expanded the responsibility of members as well.   Any expansion of “Parliament Hill” would make the Houses and their members responsible for the security within the “new” expanded parliament hill.  It is one thing to continue members’ responsibility for security within the precincts as an incident of privilege, and possibly to cover a buffer of lawn surrounding the main parliament buildings, it is quite another for members to take on the responsibility and jurisdiction for the provision of security for up to three main roadways, government offices including the Prime Minister’s Office and the Office of the Privy Council, private offices, retail spaces, a pedestrian mall, and private residences.

Expanding the parliamentary precinct, as that concept has been contemplated and recognized, or expanding the physical definition of Parliament Hill and thereby expanding the role of the PPS into “private” space, would necessarily bring both legal and governance challenges.

From a consitutional perspective, there is a question of how far the parliamentary precinct can be expanded.  The connection of parliamentary precinct to parliamentary privilege suggests that parliamentary precincts can only be extended to the point that is necessary to ensure consitutional protection and independence of the two Houses and their members.  Beyond that point, the consitutional jurisdiction for the Houses and Speaker is suspect.  Section 18 of the Constitution Act, 1867 provides that privileges in Canada cannot be expanded beyond those of the UK House of Commons in 1867. Any claimed new privilege must meet the definition of necessity as that term is defined in Supreme Court of Canada jurisprudence Therefore, any attempt to extend the precincts beyond the working definition in section 79.51 of the Parliament of Canada Act would be constitutionally suspect.

Before examining the significant question of expanded “operational security” in civic areas where the public goes about its daily business, it is necessary to consider whether it would be proper or constitutionally permissible for a security service under the responsibility and jurisdiction of the Speakers to provide security for government buildings, particularly those that house the Prime Minister’s Office and the Office of the Privy Council.  In the same way that the separation of powers and the independence of the Houses of Parliament protects Parliament from intrusions and interference from the Crown, one would have to ask whether the inverse is also an issue.  Would the government accept a security apparatus under the direction and jurisdiction of the Houses, both of which include members of the Opposition? Such oversight would involve the PPS and its parliamentary overseers having access to, and information about, buildings in which the majority of matters covered by cabinet and Crown confidences are carried out?

The expansion of the precincts or the expansion of Parliament Hill into public space would involve a greater risk of legal questions arising from engagement with private individuals as they go about their daily business.  For example, beyond the existing Parliament Hill, citizens enjoy full protection of Charter and legal rights enforced by the courts without any reference to privilege.  In addition, the provision of operational security within areas of daily private activities, including driving and what is now by-law enforcement, becomes a potential jurisdictional puzzle.  How is the public to distinguish between what is “operational security” and policing, when the concept of “operational security” is a concept that is not known to the law except as it appears in the parliamentary context outlined in the Parliament of Canada.

Since the PPS must remain under the jurisdiction of the Speakers to protect the independence of Parliament, Members and Senators would necessarily become involved in having to resolve these questions.  The two Houses would be implicated in any legal, consitutional and liability questions that could arise from interactions between members of the PPS and members of the public.   As the jurisdiction of the PPS expanded the internal governance responsibilities of the Houses and their members would also expand.   Prior to 2015 members and Senators only needed to occupy themselves with matters confined within the walls of the Parliament Buildings, and buildings in which the Houses, their administration and members carried out their functions.  In carrying out this responsibility they were fully protected by privilege so that the intricacies of the laws of public order did not apply and their decisions were protected from involvement by the courts.  What is contemplated by expanding Parliament Hill and the responsibility of the PPS out into what is now the city would require an extensive rethink of governance and risk management.

Given the consitutional reasons for the separation of powers and the independence of Parliament from the executive and the courts, there must always remain a “parliamentary precinct” which is protected by parliamentary privilege and the ability to exclude all strangers. This both a physical and constitutional necessity; a space where the Houses have exclusive jurisdiction free from executive, police, or judicial interference.  At the present time, that space is clearly and properly defined to include the Parliament Buildings within Parliament Hill (as defined in various statutes), and other identifiable buildings within the City of Ottawa.   Regardless of any contemplated expansion of “Parliament Hill” this would remain unchanged.  Those spaces that are at present identified as “parliamentary precinct” would remain so — the same jurisdictional islands within a potentially larger federal sea.  That designation and resulting jurisdiction would still apply to any buildings or spaces inside or outside of the “new” parliament hill.

There is no doubt that security for Parliament is important and now has a dimension that requires an examination of a buffer space and access to and use of space within “shouting distance” of where Parliament sits.  In a democracy it is important that people be able to gather to support, criticize and protest, while ensuring that the work of Parliament and those participating in its proceedings and work are not impeded or interfered with.  There is little doubt that the responsibility for securing “parliamentary space”, including the precincts and a small buffer zone, are the responsibility of the parliamentarians, and that public authorities are responsible for “public space” outside of the parliamentary precincts.  It is doubtful whether Parliament or its Speakers have the constitutional or legal capacity to be responsible for securing public space beyond that occupied and used by parliamentarians and invitees for parliamentary purposes.  Securing the public and policing the public peace is the responsibility of the Crown and its agents (police and by-law enforcement).    Even if it is within the jurisdiction of the Houses to expand their responsibility beyond the precincts and the existing Parliament Hill any expansion would be onerous and fraught with numerous legal and practical matters.  Both Houses, and their members, would now need to ensure proper management of the area in question, even if limited to “operational security,” which would include government offices, retail spaces, and public but non-parliamentary daily activities.

What is required is not expanded jurisdiction for the two Houses but a better understanding of the policing and security challenges that the presence of a Parliament within a city entails.  This means better understanding by the police of needs of Parliament, including protection from spillover from events within public spaces and protected access of members, staff and those doing business with Parliament.  This might entail a recognized “federal zone” which would include all vulnerable federal sites, including Parliament Hill and related parliamentary offices, the Supreme and Federal Courts, and central government offices including the Prime Minister’s Office, the Privy Council Office and the Treasury Board.  This could then come under a single co-ordinating police, not parliamentary, responsibility.  Within this zone would sit the recognized parliamentary precincts that would still be protected by parliamentary privilege.  This would be consistent with the constitution which leaves, but limits, parliament to being responsible for those things that are uniquely parliamentary, and gives to police the responsibility for  those things which are public.

Harassment and Bullying Between Members Must Be Resolved in the Assembly not Courts or the Press

Over the last decade many legislative assemblies have worked to address “workplace” issues by examining what constitutes ethical behavior in a modern parliamentary institution.  Beyond the traditional ethical issues regarding conflicts of interest, bribery and lobbying, assemblies have sought to address issues related to personal behaviours including harassment, bullying, human rights violations, misogyny and non-inclusive practices and procedures.  At the same time, it was necessary to recognize that a legislative assembly is made up of elected members, the selection of which is beyond the control of the assembly, that the body is inherently political and therefore adversarial, and that legislative assemblies must be free to operate independently of the government and the courts.   The result, in most cases, has been to develop a code of ethics and conduct substantively seeking to address unwarranted behaviour and policed through a complaint process.

The processes developed were necessarily internal.  The work of an assembly is unique and is carried out by elected members who collectively constitute the assembly itself.  Inevitably concerns would be raised regarding the “fairness” of the process to resolve any complaints raised, particularly when the behaviours, attitudes and effects are between and among members.  The inherent partisan, political and adversarial nature of the assembly also presented the problem of developing processes that would be as free from political motivation and interference as possible.  Some form of objective investigation that would be able to separate out political and partisan activities from unethical or harassing behaviours needed to be developed if there was to be any semblance of integrity from the perspective of both members and the public.

Like most legislative assemblies, the Newfoundland and Labrador House of Assembly adopted codes and legislation aimed at ensuring the integrity and ethical behaviour of members. The processes developed under the legislation created an officer of the assembly, the Commissioner for Legislative Standards, who would investigate complaints and report to the Assembly, which could impose the appropriate discipline on any member who ran afoul of the standards.   In 2019 complaints were raised by certain members against other members, who were also were members of the provincial cabinet.  The complainants claimed that they had been harassed and bullied.  While the Commissioner rejected the majority of the allegations, there were findings of inappropriate behaviour on at least one allegation.  The reports were subsequently debated in the Assembly and the offending members sanctioned, removed from caucus and forced to resign from cabinet.   Given the “political” aspects of the complaints and sanctions, there was considerable press coverage, including media interviews with the complainants, that resulted in reputational and political consequences.

The affected members decided to take legal action against various actors in the complaint process. Unlike other cases which have been based on judicial review of decisions of management committees or legislative assemblies, which have been rejected since the decision-making bodies were found to be legislative in nature and the decisions protected as “proceedings in parliament”, the members brought civil suits against various individuals.  Actions were brought against the Commissioner and the Speaker for abuse of process and misfeasance in office for the handling of the complaints and failure to protect the” rights” of the members complained against.  These two officials, along with the complainants, were also alleged to have abused their offices.  The basis of the claim was that the investigation was conducted pursuant to a statute and by an individual investigator with the result that the process was not a proceeding in parliament, rather decisions were taken pursuant to powers granted by statute.   In addition, actions were brought against the complainants for defamation for the content of the complaint, statements made in the investigation and statements made to the press.  The respondents brought motions to have the claims dismissed as disclosing no triable cause of action since the proceeding would contravene the privileges of the assembly and its members.

In two decisions released on the same day, Joyce v Gambin-Walsh, 2022 NLSC 179 and Kirby v Chaulk, 2022 NLSC 180, Justice Chaytor of the Supreme Court of Newfoundland and Labrador dismissed all aspects of the claims with exception of defamation claims based on comments made to the press.  The decision rested on the foundation of the assembly’s privileges over its internal processes, its exclusive right to discipline its members without interference from the courts, and the freedom of speech for those participating in matters before an assembly.

Since the claims were made within the context of a provincial legislative assembly the defendants were first required to demonstrate that the privileges at issue were necessary for the assembly to carry out its functions.   It was evident from the facts and the jurisprudence that the expected standards of behaviour as between members, both inside the chamber and outside of it, are matters that are required for the assembly to carry out its functions with dignity.  The enforcement of those standards as an incident of the power to discipline members was also found to be necessary for the Assembly to carry out its functions.   The court held that, although the process of the filing of complaint and investigation of those complaints was not itself a proceeding, the purpose of the process was to allow the assembly to consider whether the actions of a member warranted discipline.    The Commissioner, in entertaining and investigating the complaints, was acting as a delegate to assist the Assembly in making a decision.  In the words of the court, the entire process was “connected to the proceedings and the House fulfilling its consitutional roles.”

Although the court found that it was without jurisdiction to consider the actions of the various participants in the process, it made it clear that the assembly itself had jurisdiction to do so.  The assembly had the jurisdiction, and therefore the responsibility, even if not articulated in any statute or code, to determine whether the standards applied should be a basis for discipline and whether the process followed met the necessary standards of fairness.  Finally, only the assembly could impose any sanctions.  Even if a court might have found that the Commissioner had exceeded the language of the codes, or had acted unfairly, none of these considerations changed the fact that the entire matter fell within a decision-making framework focussed on the disciplining of a member of the assembly, a matter that falls within the ambit of parliamentary privilege, regardless of any errors, omissions, or findings.    As members of the assembly, the plaintiffs (respondents to the complaints) were able to raise any issues they might have had regarding any issues, be they legal, factual, procedural, or political.

This left the issue of defamation claims against the complainant who had discussed the complaints and alleged harassment and bullying with the press.  It has generally been settled law that comments made outside of proceedings, particularly comments to the press, are not covered by parliamentary privilege.  This is why it is not uncommon for one member to dare another member to repeat what they have said in the chamber, where speech is protected absolutely, outside the chamber where the laws of defamation apply.   To avoid such a finding, the complainants, who were members, argued for a broader application based on the changing role of members and the way that they were expected to carry out their parliamentary functions.  They submitted “that the scope of parliamentary privilege of freedom of speech should include public statements made by members…if those statements were made in the course of advocating and performing their functions as members.” (Kirby para 83).   It was further argued that “traditionally advocacy by members…was limited to the House of Assembly.  That was their performance venue where they advocated, questioned colleagues, and represented their constituents.  However, in contemporary times, much of that advocacy occurs in other forums such as through the media and social media. Therefore, …such public statements and should be considered a necessary part of members…performing of their legislative function.”  (Kirby para 85)

The court refused to extend the privilege as argued for.  Holding that the purpose of privileges was to protect the constitutional separation of institutions within the constitutional architecture, the court noted that privileges are not individual.  They belong to the legislature, or legislative assembly, as a whole.  Privileges are designed to protect the assembly and the legislature in the carrying out of their consitutional role. Members, witnesses and others only enjoy the protection of privilege in the furtherance of the assembly’s functions, not in their individual capacity or as an incident of their status.   Institutional and collective functions and one’s role within them is what is protected.

There may be other protections that develop for speech with constituents.  However, the basis for any such protection would need to be found in the the law of qualified privilege and the public discourse based defences against defamation.  Protection of parliamentary privilege does not stretch beyond the confines of proceedings and matters directly related to them.

In many ways there is nothing surprising about the outcome of these decisions.  They confirm the necessity to protect the constitutional space occupied by the legislature to carry out its business without interference from the courts and the executive.  But the limits of that space must also be respected and accepted by the members as well as by the courts.

These decisions confirm that legislative assemblies, as independent constitutional bodies, remain responsible for defining and policing the acceptable behaviours of their members.  But exclusive jurisdiction (exclusive cognizance) over internal matters also means that those within the institution must act responsibly.  As attitudes and technologies change, there is scope for assemblies and their members to adapt new practices to meet those changes.  Members can and should be required to adhere to different moral, ethical and behavioral standards as they engage with each other.  Processes which protect the rights of all members (complainants and respondents) need to be developed.  The press and social media provide near instant communication and public accountability that can be both helpful and hurtful, so care must be taken to protect the reputation of the institution and all involved.   At the same time, any internal process must allow for fairness, since all discussion among and between members takes place within the consitutional space provided.  Once a different playing field, such as public engagement through the media, is chosen it is the rules of that forum and not those of the assembly will apply.

There is a lesson to be learned here by all members in all legislative assemblies.  To rely on the protection provided by constitutionally privileged space, members must accept the need to act responsibly within that space.  This is highlighted by the fact that reliance on a privileged space means that there can be no legal review of how they have acted.  The rules of behaviour and ethics, along with the process to address alleged breaches, are developed with the acquiescence of all those who could become involved in their enforcement, both potential complainants or respondents.  Members also must recognize that, in the end, the body of which they are all members will have the final say on the meaning and consequences of any actions.  They could be required to debate, discuss, consider, resolve and justify all decisions taken by the collective body of which they are a part and to which the rules apply.  As part of the collective body in which these cases took place, the members involved were responsible for the rules and the process.  They were also responsible to the institution and collectively to each other.  Since the body to which they belonged was constitutionally independent, the matter rested solely with them.  In these cases, both the complainants and the respondent failed to fully understand what that meant and required.   By seeking to use the courts to attack those responsible for the internal process they had agreed to, the members against whom the complaints were brought did not accept the authority of the assembly of which they were part.  In short, they not only did not take personal responsibility, but they also did not accept that the assembly acted responsibly or could do so.  The complainant members similarly did not respect the process, the decision or the outcome, and sought to contest the issues in the media.  Both sides in the  dispute, while content to argue for their privileges, failed to understand or accept the constitutional responsibilities that came with them.

What the court did was to remind all involved that both courses of action were inconsistent with the responsibility that all members have to assembly and to each other.  They and all members were reminded that they are actors in a constitutionally privileged environment which they bear the responsibility to respect.

It may be that the entire process demonstrates that the assembly, or some of its members, did not act on their best behaviour. But, as with all such matters determined by the assembly, the final judges of whether the assembly adopted an appropriate standard of expected behaviour, whether its delegate, the Commissioner, acted appropriately, and whether the assembly acted fairly, is the electorate, not the courts.

Quebec’s Attempt to Eliminate Oath of Allegiance Requires Proper Constitutional Amendment

On October 3, 2022, the province of Quebec held a general election.

To take a seat in the Quebec National Assembly (a component part of the Quebec Legislature) it is necessary that newly elected members take two oaths.  The Act respecting the National Assembly, requires members to declare “I, (name of the Member), declare under oath that I will be loyal to the people of Québec and that I will perform the duties of Member honestly and justly in conformity with the constitution of Québec.” In addition to this oath the Constitution Act, 1867 section 128 requires that

Every Member of the Senate or House of Commons of Canada… and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act 

That oath now provides “I A.B. do swear, That I will be faithful and bear true Allegiance to His Majesty King Charles the Third.”

While all newly elected MNAs were prepared to swear the oath required by the Act respecting the National Assembly some nationalist members refused to take the Oath of Allegiance to the King.  As a result, the Speaker of the Assembly refused to allow the members to take their seats.  In order to resolve the impasse, Bill 190 was introduced that would amend the Act Respecting the National Assembly to only require the oath under that Act, but not the Oath of Allegiance, to be taken before a member could take their seat.  The Bill proposed a seemingly simple one line provision following the requirement to take the oath contained in the Act.  The new provision would provide “No other oath may be required of a Member to sit in the Assembly.” On December 9, 2022 a government Bill to the same effect was introduced and passed by the Assembly.  Bill 4, as adopted provided:

1. The Constitution Act 1867 is amended by the insertion after section 128 the following:

s.128Q.1 Section 128 does not apply to Quebec. est modifiée par l’insertion, après

There can be no doubt that the amendment to the Act Respecting the National Assembly is, on its face, unconstitutional since it is an attempt to remove the constitutional requirement that all members elected to a provincial legislative assembly take the Oath of Allegiance. Since the Oath of Allegiance requirement is found in the Constitution Act, 1867, the only way the requirement can be overcome would be by way of a consitutional amendment in accordance with Part V of the Constitution Act, 1982. 

Part V of the Constitution Act, 1982 sets out three possible relevant formulae for constitutional amendment, depending on how one views the requirement that members of legislative assemblies take the Oath of Allegiance before they can sit in the Assembly.  No doubt the Quebec government will argue that the provision of the Act Respecting the National Assembly falls within the ambit of s. 45 of the Constitution Act, 1982.  This section provides “Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.”  Since the proposed amendment to the Act Respecting the National Assembly only affects the ability of Quebec elected members to sit in the Quebec National Assembly, the “amendment” could be seen by some as amending only the constitution of Quebec.

However, there are indicators in the constitution and in the jurisprudence that would suggest that the issue is one that requires a broader agreement among the provincial legislative assemblies and the House of Commons and Senate.  First, the requirement for the Oath of Allegiance is found in the Constitution Act, 1867 which is the constitution of Canada as a whole and which contains, with a few notable exceptions, provisions that apply to all of the constitutional architecture and principles that underpin the national government and all provinces.  Among these are the principles of government in the name of the Crown, and the nature of Westminster government that requires legislation to be enacted by the King (or his representative) in Parliament or a Legislature.  Equally important is a recognition that the King or his representative participate in the formation of government by appointing the Prime Minister and Premiers, the dismissal of governments if required, and the dissolution and prorogation of Parliament and Legislatures.  The King’s representative is also responsible for authorizing all Bills that involve taxation and the spending of public funds.  And notably, although exercised rarely, there is a constitutional power in the King’s representatives to withhold Royal Assent to a Bill, and in the case of Lieutenant-Governors reserve the granting of assent, and to refer the Bill to the Governor- General for potential disallowance.  These are real aspects of the architecture of constitution of Canada which has the Crown at the centre, playing an integral part in all aspects of governance, including the formation of government, the life of legislative assemblies, the enactment of legislation and the exercise of powers of the executive.

Taking the Oath of Allegiance is an act that ties those who sit in a legislative assembly, along with the Lieutenant-Governor as the Legislature, to the entire system of governance and the various constitutional roles that the Crown plays.  The Oath, among other things, recognizes and accepts the authority that the Crown exercises in the business of the Legislature, the government, and the State.

Although the Oath is cast in terms of personal fealty to King Charles the Third, the courts have consistently held that although somewhat anachronistic in its wording, the Oath is now a shorthand for an Oath of Allegiance to the Constitutional norms, principles, and governance upon which the constitution and its system of government rests.  As recently as 2014, applicants for citizenship challenged the same oath in the context of its requirement fir becoming a citizen on the basis that they could not take an oath to a monarch of a colonizing British empire. The Ontario Court of Appeal in McAteer v. Canada (Attorney General), 2014 ONCA 578 wrote:

[62] Applying a purposive and progressive approach to the wording of the oath, with regard to its history in Canada and the evolution of our country, leads to the conclusion that the oath is a symbolic commitment to be governed as a democratic constitutional monarchy unless and until democratically changed. Inasmuch as the oath to the Queen is a requirement in the Constitution for members of Parliament and is seen as an oath to our form of government, the harmonization principle supports the conclusion that the oath to the Queen in the Citizenship Act be given a consistent interpretation. This interpretation of the oath, as a symbolic commitment to our form of government and the unwritten constitutional principle of democracy, is supported by the legal norms of rationality and coherence.

The argument that an amendment to the Act Respecting the National Assembly should be seen as constrained to the particular provincial institution, and therefore amendable using section 45 of the Constitution Act, is not dissimilar to the argument used by the federal government when it attempted Senate reform.  The federal government had proposed to both limit the rems of Senators and to allow for consultative elections to determine who the Prime Minister should consider recommending for appointment to the Senate by the Governor General.  The federal government argued that they had the authority to legislate these changes unilaterally based on section 44 of the Constitution Act, 1982 that allows Parliament to amend the constitution unilaterally “in relation to the executive government of Canada or the Senate and House of Commons.”  In Reference re Senate Reform, 2014 SCC 32 this position was rejected by the Supreme Court of Canada for various reasons, including the fact that the changes would fundamentally change the nature of the Senate, which is a body that has the consitutional function of, among other things, protecting regional and provincial interests.  As such the changes would have an effect on, or engage, the interests of the provinces.  If so, then the federal government could not act alone in amending the Senate.  This last point was specifically considered in light of particular Senate appointment criteria for Quebec which the court found could only be amended with the consent of Quebec.  These findings of the court were made by examining not only the provisions in question but by placing the proposed change within its context and in light of its overall affects on the consitutional architecture and the system of government in which the Senate operates.

With these constitutional principles and jurisprudence in mind, it is very difficult, if not impossible to see the changes contemplated by Bill 190 as an amendment restricted to the constitution of Quebec, and not captured in any other amending formula in Part V of the Constitution Act, 1982.


The general amending formula is found in section 38 of the Constitution Act, 1982.  This formula requires a resolution of the House of Commons and the Senate and the resolution of the legislative assemblies of seven provinces which have a combined population of more than fifty percent of the population of Canada.  This formula is to apply as a default where no other formula is applicable.  Most interestingly, listed in section 38 are certain types of amendment that clearly address the internal workings of legislative assemblies.  Section 38 (2) states:

An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1). [emphasis added]

It can be argued that this particular subsection is designed to address a situation like the one presented by the Quebec legislation.  The determination of the ability of a member to sit following an election is one of the historic rights or privileges of a Legislature.  The privilege of determining the constitution of an assembly (rules and participation) is one that has been recognized by the courts both prior to and after confederation, and at least two of these cases involved the requirement of Members to take an oath prior to taking their seats.  In the leading case of Bradlaugh v Gosset (1884) 12 QBD 271, the English courts determined that they would not interfere in the issue of whether a member could be refused the ability to take an oath because to do so would interfere with the rights and privileges of the House of Commons.  A similar case occurred in Northern Ireland when Irish separatists refused to take the oath but wanted certain benefits of being members. The Speaker refused the benefits. Again, the courts refused to become involved since do so would interfere in the privileges of the Assembly.   What is clear is that the issue of oaths and taking seats is one that falls within the rights and privileges of legislatures.  While these cases have been cited subsequently in order to protect the Legislature from interference in their rights and privileges, they do not protect assemblies from the constitution.

That the s.38 amending formula is the one that might be appropriate in the circumstances is supported by the fact that amendments that are made under s.38(2) relating to the rights and privileges of Legislatures can be opted out of by provinces that do not want the amendment to apply to them using the mechanism under s.38(3).  The application of this formula is designeded to allow what Quebec is attempting to do with its legislation.  Section 128 of the Constitution Act 1867 would be amended such that Quebec would be able to opt out of its requirements.

There are other amending formulae that could also apply depending on how far one wanted to press for the requirement of unanimity, rather than the percentage formula in s, 38.  For example, if one were take the position that the taking of the Oath to the King in the context of the Legislature affected the “office of the King, the Governor General or the Lieutenant Governor of a province” s. 41 requires a resolution of all provincial legislative assemblies, the House of Commons and the Senate.

The formula in section 43 is also an amending formula that could be considered, but would require unanimity.  Section 43 provides:

43 An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including (a) any alteration to boundaries between provinces, and (b) any amendment to any provision that relates to the use of the English or the French language within a province, may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies. [qualifying phrase highlighted]

Although the phrase “but not all” is included in the provision, it would seem quite odd, and not constitutionally sound, that the intent of the drafters of the provision would have required consent of an affected province in the case of it being specially identified, but not in a case where its interests are equally affected but as a member of a group of all provinces.  In the present case, s. 128 of the Constitution Act, 1867 applies to all members of every provincial legislative assembly, the House of Commons, and the Senate.  Giving section 43 the necessary broad and purposive interpretation that the courts give to other constitutional provisions, a serious case could be made that even the general amending formula of s.38(1) and allowing Quebec to use s.38(2) to opt out is not appropriate when all provinces are specifically implicated by a provision of the Constitution.

In light of the above, it is likely that the legislation will be struck down as unconstitutional and the change proposed will require a consitutional amendment with the support of at least seven provinces, the House of Commons and the Senate.

While the constitutionality of the Quebec legislation works itself out, likely through a court challenge, the risk exists that some members of the National Assembly will take their seats without complying with the constitutional precondition to do so.  What the consequences of this could be are unknown.  There is no precedent that I am aware of.  One could argue that permitting such members to openly take their seats would mean that the Assembly is not properly constituted and as a result any legislation adopted is potentially at risk.  The other possibility would be that any votes by the members in question would be expunged and the tally of votes of properly seated members would be recalibrated so as to not unnecessarily invalidate otherwise valid legislation.  Since these would be a questions of constitutional validity the jurisprudence in Picken v British Railways Board [1974] UKHL 1 and Mikisew Cree v Canada (Attorney General) 2018 SCC 40 that limit the courts from examining parliamentary proceedings would not be applicable since the question would not involve the procedures followed or the content of debate but rather the validity of the proceeding itself; that is, whether the meeting was a constitutionally valid proceeding.

Regardless of the outcome, the perception that the Oath is both personal and written from a British colonial perspective and therefore susceptible to criticism or ridicule has been rekindled.  For many, who have come from countries where colonialism was real and oppressive, or from countries without any connection to British history, the royal family is remote, and they cannot see King Charles III as King of Canada as opposed to the King of England.  They believe they have come to a country that is a model for liberal democracy not a vassal colonial state, yet they must swear an Oath to a “foreign” King.  The abstract notion of an invisible Crown that is historically and continually English but yet uniquely Canadian is unfathomable.  Yet it is the constitutional glue that holds everything together.   The Oath as interpreted and understood by the courts, the law and the constitution is straightforward and simple.  Some, however, only see the words and feel the political and personal confusion.

Although the Quebec legislation seeking to eliminate the Oath of Allegiance to the King may seem a final way to purge the Quebec psyche of English dominance and conquest, and thereby to challenge the underpinnings of a Canadian constitution, it may in fact provide an opportunity for the rest of Canada to come to terms with itself as a modern, liberal and inclusive democracy, albeit with a complex history.  The challenge presented by the legislation is not just something to be navigated through the minefield of constitution amending formulae.  It is an opportunity to establish an Oath that respects the constitution as it is, a mixture of history, written and unwritten content, and an evolving democratic society based on the rule of law.  This can be done without a complete overhaul of the constitution.  One need only change the Oath required by section 128 and in all other contexts to one whereby one “swears to abide by and uphold the constitution of Canada and the values and principles that sustain it.”  In the meantime, the existing Oath will have to do the heavy lifting required of it, as it has evolved through the maturation of Canada from the unification of four British colonies to the multi-cultural federal, liberal democratic state that it has become.

There’s a Time for Prorogation (in the UK)- and this is it

The UK Constitutional Law Association posted my blog today in which I suggest that the new Prime Minister ought to consider proroguing the UK Parliament.  I make this suggestion given the need to take an appropriate pause to allow the formation of government and to set out its new agenda in a King’s Speech to start a fresh session of Parliament.  In addition, presenting a program to Parliament, having it debated and voted on will provide the government the necessary constitutional legitimacy that the confidence of the House of Commons would provide by supporting the Speech.  The blog can be found here https://ukconstitutionallaw.org/2022/10/25/steven-chaplin-theres-a-time-and-place-for-prorogation-and-this-is-it/