In the past few weeks, we have heard a great deal about “contempt of Parliament”. This is because, for the first time in Canadian history, and apparently in Commonwealth history, an entire government has been found to be in contempt of Parliament. Naturally, the question that arises is: what does that actually mean? Many Canadians had not ever heard the term before. As is often the case with matters of the legal sort, the answer is a bit long and we have to step back a bit to look at the greater context. Shall we?
In a parliamentary system (which Canada has), members (“Members”) of the House of Commons, the Senate and provincial/territorial legislative assemblies (the “House”) have something called “parliamentary privilege” . This concept was handed down to us from the British system (sometimes called the Westminster system) that we inherited under the Constitution Act 1867 (formerly known as the British North America Act). In fact, it is right there in the Constitution Act 1867 (“CA 1867”) – section 18, to be precise.
In a nutshell, parliamentary privilege (also sometimes called “absolute privilege”) is a kind of immunity which grants Members protection against civil or criminal liability for actions done or statements made related to one’s duties as a legislator. The Supreme Court of Canada once described it like this:
“Privilege” [...is] the legal exemption from some duty, burden, attendance or liability to which others are subject. It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business. It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.
In other words: in order to do their jobs, they need a little leeway.
Then, there are two basic kinds of privilege: individual privilege and collective parliamentary privilege. Individual parliamentary privileges include: freedom of speech; freedom from arrest in civil action; exemption from jury duty; the exemption from appearing as a witness; the freedom from obstruction, interference, intimidation and molestation. Collective parliamentary privileges include: the power to discipline; the regulation of the House’s internal affairs; management of employees; authority to maintain the attendance and service of Members; the right to institute inquiries and to call witnesses and demand papers; the right to administer oaths to witnesses; and the right to publish papers containing defamatory material.
Ever wondered why politicians can say such nasty things inside the House: things they would never say outside the House? Now you know.
So what exactly does this have to do with contempt I hear you ask? Well, one of the most important rules about when parliamentary privilege applies is that no privilege can exceed the powers, privileges and immunities of the imperial Parliament as it stood in 1867, when the first Constitution was written (that what it says in section 18 of CA 1867). So…. there are limits (and we have known what those limits are for quite some time). A member cannot push it too far. Result: if s/he does push it too far, there are consequences. For example, if a Member violates a privilege, s/he can be in “breach of privilege” and s/he can be disciplined by the House. In addition…here it comes… if a Member goes beyond the limits of privilege, s/he can be determined to be in “contempt”, and disciplined by the House. Also, if the government as a whole goes beyond the limits of privilege, it can be determined to be in “contempt”, and disciplined by the House.
In other words: a little leeway, yes; too much leeway, no. The reasoning: too much privilege would actually get in the way of the House doing its job. So: you guessed it, it is the oh-so-Canadian question of “balance”, yet again.
In some Commonwealth countries, this “contempt” is included in criminal law. In Canada, the issues stay within the House. Specifically, the rules about it can be found in the House of Commons Procedures and Practice Manual (the “Manual”) and similar documents relating to the Senate and provincial/territorial legislatures. Here is an excerpt from the House of Commons Manual:
Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a Member of the House, is referred to as a “breach of privilege” and is punishable by the House. There are, however, other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges. Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or Officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands or libels upon itself, its Members, or its Officers. [...] The rationale of the power to punish contempts, whether contempt of court or contempt of the Houses, is that the courts and the two Houses should be able to protect themselves from acts which directly or indirectly impede them in the performance of their functions.
The result: there is no specific list of things that amount to contempt. We just know that if a Member/government goes beyond privilege, they might be found in contempt. This is how a lot of the law works, really: you have to have a little direction, but you don’t want to tie your hands too much, as you want to be able to examine each case on its facts, and you want to leave yourself some flexibility to deal with new types of things you could not have anticipated in advance (in 1867 – who knew about Twitter?).
That said, actions which can amount to a contempt of Parliament vary, but typically include such things as: deliberately misleading (i.e.: lying to) the House or a parliamentary committee; refusing to testify before, or to produce documents to, a House or committee; and attempting to influence a member, for example, by bribery or threats. The penalties for contempt of Parliament can include jail time, and, in the case of a minority Parliament, usually result in a vote of non-confidence.
OK…so given how much politicians are known to “spin” things, this contempt sanction should come up all the time, right? Wrong.
The use of the contempt is actually quite rare (if you are interested, the footnotes in the Manual contain the short list). Think about it: nothing would get done if this were used all the time. There is, in essence, an acceptance by all sides that this is not be used as a knee-jerk reaction or a partisan tactic: it is to be used only in the most serious of circumstances. This has to do with the very core of democracy, and it is not to be used lightly. As noted in the Manual:
The reluctance to invoke the House’s authority to reprimand, admonish or imprison anyone found to have trampled its dignity or authority and that of its Members appears to have become a near constant feature of the Canadian approach to privilege.
Even the procedures around how this finding gets made ensure that a concern about possible contempt is treated with the utmost care. Specifically, it has been the practice of the House in such instances to refer the matter to committee for investigation to determine if a contempt has been committed and therefore not prejudge the findings of the committee.
That is what occurred in this case. It started with a request from the House finance committee asking to see detailed cost breakdowns for jets, and the impact of corporate tax cuts and crime bills on the federal treasury.
Initially, the government said it could not release these details because they were protected by cabinet confidence, a principle that allows information to be kept secret and exempts it from access-to-information laws. The Opposition argued that once a government announces its intentions publicly, the information is no longer protected by cabinet confidence. On March, 9, 2011, the Speaker issued a report declaring two possible charges of contempt of Parliament. The first was against the Minister responsible for the Canadian International Aid Agency. It alleged that the Minister added the word “not” to a funding memo for an aid agency, resulting in the request being denied and lied about in testimony before a committee. The Speaker also ruled that Cabinet itself could also be in contempt of Parliament for not disclosing the cost of its crime policies and new fighter jets. He sent this report to a committee, which, on March 21, 2011, ruled that the government was in contempt of Parliament. More specifically, it found that the government’s failure to produce all documents that had been requested from it or to provide a satisfactory explanation for withholding them impedes the ability of Members of Parliament (MPs) to carry out their duties, thereby resulting in contempt. On March 25, 2011 the finding of contempt then led to a vote on a motion of non-confidence, which resulted in the conclusion of the 45th session of Parliament, and caused the government the first to fall on a charge of contempt.
So why does this matter? Either way you cut it, this was an historic vote. Only five other non-confidence votes have happened in Canada’s history, according to information on the Library of Parliament website. This is the first time it has occurred because a majority of MPs voted that they believed the government was in contempt of Parliament. It is a rather large moment in Canadian history and it is our obligation as citizens and voters to understand it.
Respecting Parliament is key to making Parliament work. As voters, the question for each of us is: in that eternal Canadian question of balance, where is the line? At what point does “spin” become disrespect? The answer may be different for each of us. The point is, we need to think about it and decide. That is the beauty of our democracy!
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