René Chrétien is a member of the Quebec Bar and at the time this article was written was Director of the Legal and Legislative Affairs Branch at the National Assembly in Quebec City.

On 11 June 1998, the Parliament of Quebec enacted amendments to the Act respecting the National Assembly which affords protection to the Members of the National Assembly supplementary to the rights, privileges and parliamentary immunity they currently enjoy collectively and as individual Members. This article looks at provisions of this Act which is the first of its kind in Canadian legislatures.

The new provisions of the Act Respecting the National Assembly entitle all Members, including former Members, to payment on certain specified conditions of defence costs and judicial costs arising from proceedings brought against them after 11 June 1998 by a third person for any act or omission in the performance of their duties of office.  Members are also entitled to payment of expenses incurred for counsel in the event that they are summoned to appear at an inquiry, a preliminary inquiry or judicial or quasi-judicial proceedings in connection with their duties of office.

Defence costs are defined in a by-law ¹ of the Office of the National Assembly as extrajudicial costs, namely fees or costs an advocate may charge for professional services arising from the practice of the profession of advocate and that are incurred to defend the client.  They include expert’s fees.  Judicial costs consist of costs taxable by the competent officer of a court.  Expert’s fees are the costs incurred by the Member’s advocate to hire the expert consultants required for the Member’s defence. Expenses incurred for counsel refer to the fees or costs charged by an advocate to assist a Member summoned to appear in the circumstances described above.

In every case, a Member in circumstances giving entitlement to payment of costs must ask the Office of the National Assembly to fix the maximum amount payable.  After obtaining the advice of the jurisconsult of the National Assembly ², the Office may fix that amount.  The jurisconsult is the officer of the National Assembly whose duties are to give opinions to Members on situations of incompatible duties and conflicts of interest which a Member may encounter in the performance of duties.

It falls to the Member to retain an advocate after consulting the President of the National Assembly.  The fees payable for professional services rendered by the advocate are established in accordance with the by-law referred to above on an hourly or lump-sum basis provided for in the by-law.

As regards the protection, the Act sets limits on the amount payable. It provides that in the case of criminal proceedings, defence costs and judicial costs will be paid by the National Assembly only if the case was withdrawn or dismissed, or if the Member was acquitted by a judgment that has become res judicata or was discharged. In this type of proceedings, the National Assembly therefore will not pay any amount unless one of those situations has prevailed.

In the case of penal proceedings, no costs or expenses may be paid and the Assembly is required to recover any costs or expenses already paid if the Member is found guilty of a penal offence. Costs and expenses are payable, however, if the Office of the Assembly, after obtaining the advice of the jurisconsult, is of the opinion that the Member had reasonable grounds for believing that the conduct in question was in conformity with the law.  In the latter case, the Assembly will also assume payment of the pecuniary penalty, the reason being that in penal proceedings, an “absolute liability” offence may be committed in good faith free of wrongful intent on the part of the offender even though a conviction is warranted and no defence of reasonable care is admissible.

In proceedings of a civil nature, the Act provides that if a Member is by reason of an act or omission in the performance of duties held liable for damage in a judgment that has become res judicata, that is to say final, conclusive and enforceable, no costs or expenses may be paid by the Assembly.  Furthermore, the Assembly is required to recover any costs or expenses already paid if, after obtaining the advice of the jurisconsult, the Office of the Assembly is of the opinion that the Member acted in bad faith.

If the Member did not act in bad faith, the Assembly will pay costs and expenses and will also pay any pecuniary penalty, including damages, imposed by a judgment in a civil suit. No payment will be made, however, if the Office of the Assembly, after obtaining the advice of the jurisconsult, is of the opinion that a gross fault was committed by the Member or that the judgment should be appealed by the Member.  Article 1474 of the Civil Code of Quebec defines gross fault as a fault which shows gross recklessness, gross carelessness or gross negligence.  As explained by Jean-Louis Beaudoin, “Gross fault, as intended by the lawmaker in article 1474 of the Civil Code of Quebec, is serious, gross and inexcusable neglect which shows gross recklessness, carelessness or negligence and therefore utter contempt for the interests of other individuals”. ³ Dussault and Borgeat have also elaborated on the term: “Not defined by statute, the notion of gross fault is generally interpreted in the case authority as involving an act committed by gross negligence, in bad faith, or with the intention to defraud”. ⁴

To summarize, the law in Quebec since 11 June 1998 provides that all Members, including former Members, are entitled to payment by the National Assembly of defence costs and judicial costs arising out of proceedings brought against them for any act or omission in the performance of their duties of office.  Expenses incurred for counsel are also to be paid where a Member is summoned to appear at an inquiry, a preliminary inquiry or in judicial or quasi-judicial proceedings in connection with the Member’s duties of office.

The law specifies the conditions on which costs or expenses will be paid and the cases in which such payment is precluded.  In each case, the Office of the National Assembly must fix the maximum amount of costs payable.

To conclude, this law also determines the cases in which the National Assembly is authorized to assume payment of a pecuniary penalty, such as a fine or damages, arising from a judgment against a Member.  That type of penalty imposed by the court will be assumed in totality by the Assembly, subject to the conditions specified in the Act.

This type of protection will no doubt be reassuring to the Members currently in office and to future candidates as regards the risks they incur in their duties of public office as Members of the National Assembly.  Members will henceforth be able to enjoy the full independence they require to efficiently perform those duties.  Parliamentary democracy itself will as a consequence be more effectively protected.

Notes

1. By-law respecting payment to a Member or former Member of an amount paid as a result of proceedings or a summons to appear, adopted on 11 June 1998 by Decision 886 of the Office of the National Assembly.

2. Claude Bisson, former Chief Justice of the Court of Appeal of Quebec, was unanimously appointed by the National Assembly on 19 June 1996 to act as jurisconsult of the National Assembly.

3. Jean-Louis Beaudoin, Les obligations, 4th Ed., Yvon Blais, Cowansville, 1993, p. 457.

4. René Dussault and Louis Borgeat, Administrative Law, A Treatise, 2nd Ed., Vol. II, Carswell, Toronto, 1988, p. 147.