The Use and Abuse of Legislative Privilege- Canadian Edition

The Speaker of the Canadian Parliament (who is 32 years old!) issued this ruling last week in response to a point of order. The issue concerned the action of a Government Minister who had “tabled a document” with the House detailing a political donation made by a particular named individual. The point of order was whether this action invaded the privacy of the named individual and would “put the chill of fear into public servants and individuals in Canada donating to a political party that a minister will use that against them.”

The Speaker acknowledged “that ministers enjoy considerable latitude and may, at their discretion, table a wide range of documents in the House.” However, he also quoted a predecessor’s admonition regarding the “awesome and far-reaching privilege” of freedom of speech enjoyed by members of the House:

Such a privilege confers grave responsibilities on those who are protected by it. By that I mean specifically the Hon. Members of this place…. All Hon. members are conscious of the care they must exercise in availing themselves of their absolute privilege of freedom of speech. That is why there are long-standing practices and traditions observed in this House to counter the potential for abuse.

The Speaker also cited the admonition from the House of Commons Procedure and Practice, which states “Members are discouraged from referring by name to persons who are not Members of Parliament and who do not enjoy parliamentary immunity, except in extraordinary circumstances when the national interest calls for this.”

He concluded by reminding members “to use great care when referring to or singling out an individual who does not have a voice here in this House and to avoid circumstances when, by such reference, an individual could have his or her reputation damaged without having the opportunity to respond.”

A word to the wise.

2 Replies to “The Use and Abuse of Legislative Privilege- Canadian Edition”

  1. This may be a silly question, but does “tabling” have a different effect in Canadian parliamentary procedure than it does under Robert’s Rules? Under Robert’s (admittedly the only set of rules I’m really thoroughly familiar with), tabling a motion generally means putting a matter aside for later consideration and not speaking of it again. Here, your post and the ruling both seem to imply that ‘tabling a document’ makes its contents available to the Members, and even the general public, rather than taking it out of consideration for the moment. Any particular reason for the rather significant difference in meaning? Does Congress use “tabling” in the same manner? Or am I misreading something here?

    A little more on topic to your post, is there any similar discouragement in Congress? I presume that the Speech or Debate clause would prevent a defamation or libel suit against any member of Congress for what was said during debates, similar to the parliamentary immunity mentioned in the ruling, but I’d be interested in knowing if there are any customs along the same lines.

  2. Mark- apparently “tabling a document” in Canada means filing the document or laying it before the House. I am not aware of the term being used that way in American legislative practice.

    I don’t believe that either the House or the Senate has any specific rule about referring to private individuals in debate. Compare Senate Rule XIX(2) (“No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.”). Arguably, a defamatory remark about a non-member could be charged as an ethics violation based on a general “conduct unbecoming” theory. In the Hutchinson v. Proxmire case, Senator Proxmire’s counsel argued that a defamatory remark could be redressed by the ethics committee, but he could not cite any specific examples of this being done, and the Court seemed to be unimpressed by his contention.

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