Report of the Special Committee on
Privileges of the Yukon Legislative Assembly, document tabled in the Yukon
Legislative Assembly, 3rd session 24th Legislature, 1980 29 p. and appendicies.
Parliamentary, privilege is undoubtedly one
of the most abused and debased terms in use in Parliament today. One has only,
to read the daily Hansard to realize how many fraudulent questions are
proposed. largely, as a means of obtaining the floor to make a speech which
otherwise would be out of order. Nevertheless, occasionally, a question arises
which should, and does, arouse interest and at least on the surface appears to
bear some relationship to the true meaning of the words.
Last year the Legislative Assembly of the
Yukon had such a case, and in the middle of the year, a special committee
reported. The question involved the wiretapping of a member's telephone while a
parliamentary "stranger" was under investigation. The Committee
reached four conclusions.
- The wiretapping was a breach of the member's privilege of freedom
- The action was a contempt as it obstructed all members in the
performance of their duties.
- The action was a contempt as the Speaker was not informed that the
police were acting.
- The Speaker must be informed when wiretapping is carried out, but
does not give or withhold consent for the action. He may judge whether or
not to inform the House.
In reaching its findings the committee sat
in camera and its deliberations are not, therefore, contained in the report. It
did submit to the House twenty-four pages of reasoning, eight pages of extracts
from the Yukon Hansard as background, the report of a British Columbia
committee on a similar case, and nearly sixty pages of advisory opinions from a
number of outside authorities.
The materials submitted by the committee
well illustrates how difficult the whole question of privilege may, be, for
even on the most basic question the outside experts do not agree. Mr. Michael
Clegg (Clerk of the Alberta Assembly) for instance claims that the Yukon has
the full range of powers over privilege and contempt exercised by other
legislatures in Canada although from his letter, their statutory base appears
to have been repealed. Mr. Joseph Maingot (Parliamentary Counsel in Ottawa)
takes a more strict interpretation from Erskine May, and denies the more
extreme powers such as punishment for contempt.
Even if one is to assume (as the Yukon
Assembly obviously does) that the right to deal with such a privilege exists, the
offence itself is open to question. There is little evidence except bald
assertions, that wiretapping is per se a breach of privilege. The British
Columbia case, included as an appendix to the report, concludes only that
wiretapping during a session is a breach of privilege and merely
"disapproves" of similar wiretapping when the House i~ not sitting.
The committee also does riot address the basic question of whether all phones
leading to a member (including at home or in a constituency office) are equally
sacrosanct. If freedom of speech (i.e. free communication between a member and
his constituents) is the issue here, and not the precincts of Parliament, then
presumably all telephonic communication with a member must he protected. In
establishing the wiretapping of a member to be a breach of privilege. it is
unfortunate that the committee did not consider in addition to May (who says
nothing specific on the subject) the Report of the British Committee of Privy
Councillors appointed to inquire into the interception of communications (Cmnd.
283) which categorically denies that wiretapping or interception of mail
addressed to members is a breach of privilege. Similarly the committee might
have noted that during the Second World War both wiretapping and censorship
were applied to Members of Parliament without raising a question of privilege
(and so far as the evidence is available, without the knowledge of the
The question which seems to have interested
the committee as much as any other was whether the Speaker must be informed of
a wiretap on a member's phone. In this instance the tap had been applied for
under the law and a proper warrant had been issued. The tap itself was placed
some distance from the Legislature and not within the building. The committee
relies heavily on the statement of the Committee on Privileges in Ottawa which
contended in 1973 that permission of the Speaker is necessary before outside
police forces may enter the precincts of Parliament while on duty. This is a
weak reed to depend on, for even that committee did not establish any proper
base for its assertion. Far from being well understood" that permission
was necessary, the R.C.M.P. and the Ottawa Police issued instructions to their
personnel only after the privilege case had been raised. The evidence in the
committee indicated that the police were indeed expected to approach the
parliamentary protective staff when entering the building, but also that every
visitor was supposed to follow the same procedure.
Clearly, one area of practice needs to be
clarified the responsibility of a member to his constituents, (and its
relationship to privilege) for on this the whole question of freedom of speech
depends. Proceedings in Parliament are not as clearly defined as Mr. Robert Fortier
(Clerk of the Senate) and the Supreme Court. in the Roman case might indicate.
Certainly Mr. André Ouellet found limits on his freedom of speech and was
convicted of contempt of court. Similarly, Mrs. Simma Holt in 1978 discovered
that her representation of her constituents did not extend to appearances
before the C.R.T.C. It is a large question that should be answered with more
certainty that at present, before individuals acting within the law are
condemned to legislative censure.
Perhaps the most distressing feature of this
report is its dependence on the catchall definition of contempt based on May
and expounded by others. In brief, to be a contempt, an act need not actually
obstruct a member of the House, it need only tend to accomplish the act. Clearly,
if this is taken at face value, any action may fall under such a definition. It
might be better if the committee and others using this definition were to look
not only at the definition in May but also the chapter that expands on it, and
realize that the cases cited are reasonable and do not stretch the words of the
definition out of all recognition. Clearly, the molestation of a member on his
way to the House may not prevent him arriving, but may be designed to do so.
Tampering with witnesses, bribery, and similar actions can be considered under
this heading. It may be noted also that the premature publication of a
committee's proceedings and report also appear in this chapter as contempts. It
would be interesting to see the results if any legislature in the country took
action against an enterprising newspaper reporter who was so bold as to publish
what he knew in this line.
In summary, this is not a satisfactory
report. Throughout, the emphasis is on the protection of the member as
representing his constituents. It is hard to see quite where an arbitrary
exercise of power such as this report represents, fits the picture. It may be
used as a strong argument for further study of privilege, or for the amendment
of the laws relating to wiretapping. It falls short of a stirring defence of
the citizen's liberties.
William F. Dawson, Professor of Political Science. University of
Western Ontario.London, Ontario