Question of privilege relating to civil action against a member of the Legislature, Speaker Herb Swan, Saskatchewan, April 26, 1984

Background: On April 25,1984, the member for Regina Centre, Mr. Ned Shillington, after having given proper notice, rose on a point of privilege. He reported to the Legislative Assembly that he had received a letter from a Regina law firm which stated that their clients had commenced a court action claiming damages for remarks made by Mr Shillington in the Legislative Assembly. The remarks in question were suggesting improprieties on the part of the people who bought the old Saskatchewan Government Insurance building from the Government of Saskatchewan.

The member also received a statement of claim issued out of the Court of Queen's Bench for Saskatchewan. The plaintiffs (the purchasers of the building) claimed economic loss due to words said by Mr. Shillington.

Mr. Shillington argued that this constituted an attempt to intimidate him in the exercise of his responsibilities and therefore were a violation of his privileges and those of the legislature.

The Ruling (Speaker Herb Swan): Privilege is one of the most important procedural points in Parliament. A breach of the privileges of Parliament affects all members and Parliament itself.

1 refer all Honourable Members to Erskine May's Parliamentary Practice, Twentieth Edition, p. 70, for a general definition of privilege as follows: "Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. " And further, "The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are 'absolutely necessary for the due execution of its powers. 'They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity."

The rights and privileges of members evolved and were enshrined over many centuries in the development of Parliament. The ninth article of the Bill of Rights of 1688 stated: "That the freedom of speech and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament." Bourinot, another parliamentary authority, wrote: 'Among the most important privileges of the Members of a legislature is the enjoyment of freedom of speech in debate, a privilege long recognized as essential to proper discussion and confirmed as part of the law of the land in Great Britain and all her dependencies". (4th edition p. 47)

And, further from May on p. 82: "The absolute privilege of statements made in debate is no longer contested, but it may be observed that the privilege which formerly protected Members against action by the Crown now serves largely as protection against prosecution by individuals or corporate bodies. Subject to the rules of order in debate, a Member may state whatever he thinks fit in debate, however offensive it may be to the feelings, or injurious to the character, of individuals; and he is protected by his privilege from any action for libel, as well as from any other question or molestation."

Saskatchewan legislators have recognized this important privilege by incorporating it into the Legislative Assembly and Executive Council Act, S.S. C.L.-11. 1, section 27, as follows: "(1) No Member is liable to any civil action or prosecution, arrest, imprisonment or damages by reason of any matter or thing brought by him by petition, bill, resolution, motion or otherwise or by reason of anything said by him before the Assembly (2) The immunity provided by subsection (1) applies notwithstanding that words spoken by a member before the Assembly are broadcast, whether the broadcasting takes place while the words are being so spoken or the words are recorded at the time they are being so spoken and are broadcast at a later time."

The Member for Regina Centre, yesterday, in raising his Point of Privilege, stated that a letter he had received from the law firm of Wilson, Drummond, Finlay, and Neufeld and a statement of claim issued out of the Court of Queen's Bench were threatening to him as a Member of the Legislative Assembly and served to obstruct him in the carrying out of his duties. The letter and the statement of claim arose out of certain remarks made by the Member in the Legislative Assembly.

I refer all Honourable Members to Erskine May's Parliamentary Practice, (Twentieth Edition, p. 157): "To attempt to influence Members in their conduct by threats is also a breach of privilege." And further, on page 158: "Conduct not amounting to a direct attempt to influence a Member in the discharge of his duties, but having a tendency to impair his independence in the future performance of his duty, will also be treated as a breach of privilege",.. 1t is a breach of privilege to molest any Member of either House on account of his conduct in Parliament."

I refer all Members again to the Legislative Assembly and Executive Council Act of Saskatchewan, section 24:

(1) The Assembly is a court and has all the rights, powers and privileges of a court for the purposes of summarily inquiring into and punishing:

(a) Any assault, insult or libel upon or to a member while the Assembly is in Session; and(j) The bringing of a civil action or prosecution against, or the causing or effecting of the arrest or imprisonment of, a member for or by reason of any matter or thing brought by him by petition, bill, resolution, motion or otherwise or said by him before the Assembly:"

Upon reviewing the point raised by the Honourable Member yesterday and after having referred to Bourinot, May, Beauchesne and the Legislative Assembly and Executive Council Act of Saskatchewan, I find that a prima facie breach of privilege has been established.

I wish to point out that it is the role of the Chair to examine whether on the surface the privileges and rights of the members, such as freedom of speech and the freedom to fulfill their role as a member unimpeded, have been breached. It is up to the Legislative Assembly as a whole to act as it sees fit in this matter.

Editor's Note: It was then moved by Mr. Shillington that the matter be referred to the Standing Committee on Privileges and Elections. However, the government moved an amendment ordering the author of the letter to apologize by way of a letter to the Speaker of the House. The amendment was carried but only on May I after the opposition had refused to appear for the vote for several days. The amended motion was then withdrawn by Mr. Shillington following acceptance of the letter of apology and withdrawal of the legal action.