The Leader of the Third Party and the Government House Leader also spoke to the question of privilege, and I subsequently received written submissions from the Minister of Infrastructure, the Leader of the Third Party, the Government House Leader and the Official Opposition House Leader.

I have reviewed the Hansard from the proceedings of April 29 along with the written materials and the relevant parliamentary authorities, and I am now prepared to rule on this matter. Given that this is the first question of privilege to be raised in the 44th Parliament, I will begin by explaining the concepts of privilege and contempt. Erskine May, the pre-eminent authority on Westminster parliamentary procedure, defines parliamentary privilege in the following terms at page 239 of its 25th edition:

“Parliamentary privilege is the sum of certain 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. Some privileges rest solely on the law and custom of Parliament, while others have been defined by statute.”

Privileges fall into two categories. One category is made up of the privileges enjoyed by individual Members, which include freedom of speech, exemption from jury duty and exemption from being subpoenaed to attend court as a witness. The other category comprises the collective privileges of the House, including the right to regulate internal affairs, the right to institute inquiries and the power to discipline.

It is important to distinguish breaches of privilege from the separate but related concept of contempt. The third edition of House of Commons Procedure and Practice explains the distinction in the following terms on pages 80 and 81:

“Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a Member of the House, is referred to as a ‘breach of privilege’ and is punishable by the House. There are, however, other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges. Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege: tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands or libels upon itself, its Members or its officers.... In that sense, all breaches of privilege are contempts of the House, but not all contempts are necessarily breaches of privilege.”

There is agreement among the procedural authorities that a finding that a Member deliberately misled (or attempted to mislead) the House can amount to a contempt. However, there is also agreement that the threshold for such a finding is quite high. The fifth edition of Parliamentary Practice in New Zealand provides the following explanation on page 719:

“There are three elements to be established when an allegation is made against a member regarding the member’s statement: the statement must, in fact, have been misleading; the member must have known that the statement was inaccurate at the time the statement was made; and the member must have intended to mislead the House...

For a misleading of the House to be deliberate, there must be an indication of an intention to mislead. Remarks made off the cuff in debate can rarely fall into this category, nor can matters of which the member can be aware only in an official capacity.”

This standard has been affirmed on many occasions in our own House by my predecessors in this chair. As Speaker Carr ruled on June 17, 2002, at pages 101-102 of the Journals, in order for the Speaker to find a prima facie case of contempt on the basis of deliberately misleading the House, there must be “a proved finding of an overt attempt to intentionally mislead the Legislature. In the absence of an admission from the Member accused of the conduct, or of tangible confirmation of the conduct, independently proved, a Speaker must assume that no honourable Members would engage in such behaviour or that, at most, inconsistent statements were the result of inadvertence or honest mistake.”

In reviewing the exchange between the Minister of Infrastructure and the Member for Ottawa South, I am unable to find tangible confirmation that the Member misled, or intended to mislead, the House. The Member asked a series of oral questions, all answered by the Minister, relating to the process by which the government awarded a contract for the redevelopment of Ontario Place. The Minister has contended that the Member’s characterization of the government’s process is at odds with the reported findings of the Auditor General and the Integrity Commissioner. The Member for Ottawa South, on the other hand, has submitted that his characterization of the process is, in fact, supported by the Auditor General’s report. As has been the case in this House many times before, this appears to me to amount to, at most, a disagreement between two honourable Members.

The Members are entitled to hold differing views of the matter and to express those views in this Chamber. The Question Period proceeding enables private Members to hold the government to account by asking questions of the Executive Council about government policy and decision-making, thereby fulfilling one of the primary functions of this Legislative Assembly. Members’ remarks in Question Period, as in all parliamentary proceedings, are protected by the privilege of freedom of speech, which permits Members to express their opinions and speak freely. This is essential to the effective functioning of the House, and to the ability of all Members to fulfill their parliamentary roles. If a Member and a Minister disagree in their interpretations of government action or decision-making, or even in their interpretation of the report of an Officer of the Assembly, Question Period provides an ideal opportunity to make those views known.

It is not uncommon for honourable Members and Ministers, from all sides of the House, to draw different interpretations of the Officers’ reported findings, and even, on occasion, to disagree with them. 

On a separate but related note, the Minister also suggested that the behaviour of the Member from Ottawa South amounted to misconduct, and the Government House Leader made reference to the Members’ Code of Conduct on Harassment. It is relevant to note that on October 4, 2018, the Code of Conduct was amended to make it clear that “the Code shall not derogate from the parliamentary privileges of the Assembly and its Members.” The Member’s Code of Conduct does not supersede the privileges that Members enjoy, including freedom of speech.

Finally, in her written submission, the Minister of Infrastructure correctly noted that Standing Order 25 contains a number of rules regarding the orderliness of Members’ language and remarks. I would like to clarify for all Members that the application of these rules of debate is distinct from the concepts of privilege and contempt that I have described in my ruling today. As the Speaker, it is my role to ensure that the rules of debate are respected during all proceedings. Should any Member wish to raise a point of order about language used during Question Period, the appropriate time to do so is immediately following Question Period on the same day. 

I thank the House for its attention.

Ayes/pour (14)

Nays/contre (78)