Protection of Members Against Civil Actions, Speaker David Carter (Alberta) May 4, 1987

Background: On April 30, 1987, the Minister of Career Development and Employment (Mr. Orman) and the Provincial Treasurer (Mr. Johnson) were served with statements of claim by the Member for Calgary Buffalo (Mr. Chumir) and signed by the three other members of the Liberal caucus. The plaintiffs charged that the ministers were acting contrary to law in failing to cause some $110,000,000 in monies held by the Western Canadian Lottery Corporation to be placed into the General Revenue Fund. The ministers argued that service of such a notice in the legislature constituted a breach of the traditional privileges and immunities accorded to members in civil proceedings. They claimed the subject had been discussed in committee and on the floor of the Assembly and the government had responded. The attempt to focus debate in another place i.e. the courts was a breach of the privileges of the entire Assembly.

Mr. Chumir said he had looked in vain for anything in the primary authorities governing the rules of the House which suggest that the manner of service or the statement of claim itself violated any of the privileges of the House. He quoted Section 66 of Beauchesne which states that "neither the House nor its members have ever made any specific claim to be free from the service or process within the precincts..."

The Speaker had to decide if the action constituted a prima facie  case of privilege.

 

The Ruling (Speaker David Carter): A number of comments would be made by the Chair. First, I would deal with a comment that was made that the strongest authority is Beauchesne. One really needs to keep in perspective that the strongest authority really should be the Standing Orders of this House or the Legislative Assembly Act as it deals with this particular Assembly. So while some reference had indeed been made to Beauchesne, that should be kept in a certain perspective. The perspective certainly would be along this line to a section of the Legislative Assembly Act which has not been quoted this afternoon. It's section (9)(1), privileges, immunities, and powers generally, and I quote:

"In addition to the privileges, immunities and powers respectively conferred on them by this Act, the Assembly and its Members, and the committees of the Assembly and their members, have the same privileges, immunities and powers as those held respectively by the United Kingdom, the members of that House, the committees of that House and the members of committees of that House at the time of the passing of the Constitution Act, 1867 ."

Now, the Chair reads that into the record because additional references have been made throughout the course of the afternoon with respect to the whole tradition of parliamentary practice and in particular Erskine May . The 20th edition, chapter 7 in particular, is one which forms most of the parameters for the discussion, with some references perhaps occurring in chapter 8.

The Chair would also read into the record a passage which occurs in chapter 7 of Erskine May under the heading "Origin and Scope of the Privilege." I'll proceed this way in quoting it:

It has been stated ... that parliamentary privilege originated in the King's protection of his servants but is now claimed as an independent right. The privilege of freedom from arrest or molestation of Members of Parliament, which is of great antiquity, was of proved indispensability, first to the service of the Crown, and subsequently to the functioning of each House.

I pause here because the word "molestation" indeed may well be necessary of further definition with respect to the matter of privileges raised today.

I also go on to quote further, "The principal reason for the privilege has also been well expressed in a passage by Hatsell", so this takes us to yet another parliamentary source. The quote follows, and this is page 97 of Erskine May , 20th edition.

"As it is an essential part of the constitution of every court of judicature, and absolutely necessary for the due execution of its powers, that persons resorting to such courts, whether as judges or as parties, should be entitled to certain privileges to secure them from molestation during their attendance; it is more peculiarly essential to the Court of Parliament, the first and highest court in the Kingdom, that the Members, who compose it, should not be prevented by trifling interruptions from their attendance on this important duty, but should, for a certain time, be excused from obeying any other call, not so immediately necessary for the great services of the nation; it has been therefore, upon these principles, always claimed and allowed, that the Members of both Houses should be, during their attendance in Parliament, exempted from several duties, and not considered as liable to some legal processes, to which other citizens, not intrusted with this most valuable franchise, are by law obliged to pay obedience".

Now, the Chair underlines and not considered as liable to some legal processes . The difficulty, of course, that has been raised is with respect to the serving of notice and then whether or not the place of notice came into effect and whether or not molestation means a physical assault upon a person's person or whether impeding of progress is indeed a form of molestation.

Another matter was raised, that I would quote no precedent in this House, and the Chair agrees. There has indeed been no precedent of this nature in this House and perhaps because of the seriousness of the actions which have taken place.

With respect to the matter at issue, the disbursement or the discussion of lottery funds, indeed, with regard to the statement of claim as served, there obviously is indeed another way of access to the courts, which the Chair is quite certain the Member for Calgary Buffalo is entirely familiar with, so that the statement of claim could indeed be processed but indeed via another route rather than the one that was taken.

So it is that having listened carefully, the Chair decides that indeed there is a prima facie case of privilege involved here, as raised. The Chair also takes note that the Provincial Treasurer gave notice that a motion would be forthcoming in the very near future.