No. 105

N^o 105

Votes and Proceedings

Procès-verbaux

Legislative Assembly
of Ontario

Assemblée législative
de l'Ontario

Tuesday
February 15, 2005

Daytime Meeting - Sessional Day 152
Evening Meeting - Sessional Day 153

Mardi
15 février 2005

Séance de l'après-midi - jour de session 152
Séance du soir - jour de session 153

1^st Session,
38^th Parliament

1^re session
38^e législature

PRAYERS
1:30 P.M.

PRIÈRES
13 H 30

The Speaker addressed the House as follows:

I beg to inform the House that during the adjournment a vacancy has occurred in the membership of the House by reason of the resignation of Ernie Eves, as member for the electoral district of Dufferin-Peel-Wellington-Grey, effective February 1, 2005.

The Speaker delivered the following ruling:

On December 16, 2004, the Member for Whitby-Ajax (Mr. Flaherty) rose on a question of privilege to allege that ministry political staff had made unauthorized audio tapings of briefings given by civil servants to Opposition Members and their staff. The Member claimed that the actions amounted to a breach of the privileges of individual Members and of the House, and that they also amounted to a contempt of the House. The Member for Erie-Lincoln (Mr. Hudak), the Member for Burlington (Mr. Jackson), the Member for Niagara Centre (Mr. Kormos), the Member for Toronto-Danforth (Ms. Churley), and the Member for Timmins-James Bay (Mr. Bisson) also spoke to the matter.

According to the Member for Whitby-Ajax and the Member for Erie-Lincoln, the taping of the briefings they attended was conducted openly; according to the Member for Burlington, the taping of the briefing he attended was conducted without his knowledge or consent.

The Government House Leader (Mr. Duncan) and the Minister of Finance (Mr. Sorbara) responded to the allegations.

I have had an opportunity to review the Hansard for December 16, as well as the Assembly's precedents and the relevant parliamentary authorities.

Members made submissions on various legal matters, on access to information, on freedom of speech, on intimidation and obstruction, and on the authority and dignity of the House and its Members. I shall address each issue in turn.

First, with respect to the legal issues, the Member for Whitby-Ajax indicated that section 184 of the federal Criminal Code "has prohibitions with respect to tape recording and other interception of private communications...." In addition, the Member for Burlington indicated that the Speaker should examine certain ministry legal opinions that would assist the Speaker in making a ruling on the question of privilege.

In response, I have to say that the Speaker cannot deal with legal issues in a ruling or give legal advice concerning the laws of Canada; courts are better equipped to address such matters. For examples of the many Speakers' rulings that stand as authority for this proposition, I refer Members to rulings by Speaker Stockwell on January 28, 1997 (at page 6538 of the Hansard for that day) and again on February 26, 1997 (at pages 510 and 511 of the Journals for that day), and a ruling by Speaker Carr on April 30, 2001 (at page 36 of the Journals for that day). Speakers have avoided addressing legal issues in rulings, it follows therefore, that examining legal opinions is not necessary in order to determine whether a prima facie case of privilege has been established.

The second issue raised by the question of privilege deals with Members' access to government information that is provided by the civil service. Various Members indicated that they have a right to such information, and that the government cannot specify how civil service briefings are to be provided to Members.

Let me begin my response to this submission by indicating that there are two kinds of parliamentary privilege: there is a set of 'individual' privileges (for example -- freedom of speech, and freedom from arrest in civil actions), and there is another set of 'collective' privileges that belong to the House as a whole (for example -- the power to discipline, the regulation of its own internal affairs, and the right to institute inquiries).

Marleau and Montpetit's House of Commons Procedure and Practice states (at page 71) that "[t]he rights, privileges and immunities of individual Members of the House are finite, that is to say, they can be enumerated but not extended except by statute or, in some cases, by constitutional amendment, and can be examined by the courts." In other words, the Speaker cannot create a brand new privilege where none now exists.

My review of our precedents and the parliamentary authorities suggests that there is no discrete category of parliamentary privilege that accords to Members a right to information from the government or civil servants. I note, for example, that at page 427 of the Journals for December 13, 2000, Speaker Carr ruled on a question of privilege dealing with allegedly intimidating information on a government website, as follows:

[T]he right of Members to government information is limited to what the Standing Orders provide. The Standing Orders do not provide Members with a right to information -- reliable or otherwise -- from a government website.

I do not want to leave the impression that Members cannot access information. On the contrary, the Standing Orders give Members certain rights to seek and receive information, and the Speaker has a duty to uphold those rights as a matter of order. However, an entitlement to a ministry briefing is not one of these rights.

This brings me to the third issue, freedom of speech, which is related to the previous issue because, according to various Members, their right to government information is a component of Members' freedom of speech. On this issue, the Member for Burlington said the following:

My freedom of speech, my voice in Parliament, and, by extension, the voice of my constituents on the floor of this Legislature is predicated on my ability and my right to access information that the government is obliged under the law to share, and public servants take an oath in order to uphold that.

In response, let me say that Members of this House do enjoy freedom of speech, which is often said to be the most important of Members' individual privileges. House of Commons Procedure and Practice states (at page 74) that "[f]reedom of speech permits Members to speak freely in the Chamber during a sitting or in committees during meetings while enjoying complete immunity from prosecution for any comment they might make." The same text indicates (at page 71) that "privilege does not exist 'at large' but applies only in context, which usually means within the confines of the parliamentary precinct and a 'proceeding in Parliament'."

In the case at hand, the briefings did not revolve around words spoken by Members in the House or in one of its committees. The briefings, then, are not parliamentary events capable of being protected by the privilege of freedom of speech. To this, let me add that Members were able to exercise their freedom of speech and hold the government to account on this incident because, in the Question Period that followed immediately after the question of privilege on this incident, they were able to place oral questions about the very same subject-matter.

The fourth issue raised in the question of privilege deals with the allegation that the taping of the briefings amounted to an attempt to intimidate and obstruct Members and the civil service.

In response, let me say that the obstruction and intimidation of Members in the exercise of their parliamentary duties is a matter of contempt. Erskine May states (at page 128 of the 23^rd edition) the following:

Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results, may be treated as a contempt even though there is no precedent of the offence.

And House of Commons Procedure and Practice states (at page 84) that "Speakers have consistently upheld the right of the House to the services of its Members free from intimidation, obstruction and interference", and that (quoting a ruling by Speaker Lamoureux)" 'parliamentary privilege includes the right of a member to discharge his responsibilities as a member of the House free from threats or attempts at intimidation'."

The same authority (at pages 84) refers to a 1986 ruling by Speaker Bosley of the Canadian House of Commons, where he indicates that for there to be a prima facie case, "the threat or attempt at intimidation cannot be hypothetical, but must be real or have occurred."

It also indicates (at pages 91 and 92) as follows:

In some cases where prima facie privilege has not been found, the rulings have focussed on whether or not the parliamentary duties of the Member were directly involved. While frequently noting that Members raising such matters might have legitimate complaints, Speakers have regularly concluded that Members have not been prevented from performing their parliamentary duties.

In our own Assembly, I note that on June 19, 2001, Speaker Carr made the following ruling dealing with freedom of information requests by Opposition Members:

I understand that the Member for Niagara Centre and the Member for Elgin-Middlesex-London contended that their effectiveness as Members of Provincial Parliament was being compromised by delays in receiving information that they had requested from the Government. However, it is very clear to me that the Government's management process on contentious issues did not obstruct the Members in their strictly parliamentary duties in this Chamber.

Thus, while I do agree that ministry briefings enable Members to carry out their parliamentary duties in this House and its committees, the tenor of the authorities I have just referred to suggests that the briefings themselves do not amount to a parliamentary proceeding.

Furthermore, in respect of the alleged conduct in the case at hand, the Member for Erie-Lincoln made a helpful reference to a 1984 ruling from the Canadian House of Commons. In that case, Speaker Francis had ruled that a prima facie case was established when a Member alleged that his office had received threats and insults in an abusive telephone call from an employee of a Crown corporation, because the Member had not pre-cleared with the employee an oral question that he had placed to a government minister on the previous day. In the case at hand, however, no Member alleges that this kind of threatening language was uttered. I note that the Member for Erie-Lincoln refers to the taping as an "implied threat"; he also indicates that at one of the briefings a tape recorder was turned off when objection was taken to its use. In other words, there does not appear to have been a real, overt, or demonstrated threat.

As for the allegation that civil servants were being intimidated or obstructed, there is no evidence to support the allegation. In any event, while there are rare circumstances when civil servants are entitled to the protection of parliamentary privilege (for example, when testifying before a committee of the House), such circumstances do not exist in the case at hand.

The fifth and final issue, raised by the Member for Burlington and the Member for Niagara Centre, was that the taping of the briefing was inherently offensive to the authority and dignity of the House and its Members.

In response, let me first refer to the applicable authorities. House of Commons Procedure and Practice states (at page 52) as follows:

Any conduct which offends the authority or dignity of the House, even though no breach of any specific privilege may have been committed, is referred to as a contempt of the House. Contempt may be an act or an omission; it does not have to actually obstruct or impede the House or a Member, it merely has to have the tendency to produce such results.

In addition, Maingot's Parliamentary Privilege in Canada states (at page 250 of the 2^nd edition) the following:

There are actions that, while not directly in a physical way obstructing the House of Commons or the Member, nevertheless obstruct the House in the performance of its functions by diminishing the respect due it. As in the case of a court of law, the House of Commons is entitled to the utmost respect....

In the case at hand, given that the briefings were not parliamentary events, a prima facie case of contempt of the House on the basis that the tapings were an offence to the inherent authority and dignity of the House is not established.

Although I find that neither a prima facie case of privilege nor a prima facie case of contempt has been established, I do not want to leave the impression that the government of the day should do as it pleases when it comes to providing information to Members of this House. The government is entitled to establish reasonable ground rules for briefings that it sponsors or provides. In some instances, Speakers of this Assembly have not intervened when a Member has complained about the denial of access to government information or about the government's imposition of certain conditions concerning a briefing. In other instances, however, Speakers have stated that the Member who raised the matter had a grievance or complaint of which the government should take note.

I am inclined to take the latter approach in the case at hand. When it comes to electronically recording information, Members, like most people, have a heightened sense of awareness or concern because of the purposes to which the recording could be used. In retrospect, it would have been prudent for the government to predict or better address the concerns of Members attending the briefings. In any event, it is unlikely that there will be another occasion on which similar concerns will be raised because the Premier has indicated that the practice of taping briefings given to Opposition Members is not acceptable and that it will be discontinued.

In closing, I thank the Member for Whitby-Ajax, the Member for Erie-Lincoln, the Member for Burlington, the Member for Niagara Centre, the Government House Leader, the Minister of Finance, the Member for Toronto-Danforth, and the Member for Timmins-James Bay for their thoughtful and helpful submissions on this matter.

REPORTS BY COMMITTEES

RAPPORTS DES COMITÉS

The Speaker addressed the House as follows:

I beg to inform the House that during the adjournment, the Clerk received the Report on Intended Appointments dated January 11, 2005 (Sessional Paper No. 351) of the Standing Committee on Government Agencies. Pursuant to Standing Order 106(e)(9), the Report is deemed to be adopted by the House.

Mr. Delaney from the Standing Committee on the Legislative Assembly presented the Committee's report as follows and moved its adoption:

M. Delaney du Comité permanent de l'assemblée legislative présente le rapport du comité et propose l'adoption comme suit:

Your Committee begs to report the following Bill as amended:

Votre comité propose qu'il soit permis de faire rapport sur le projet de loi suivant avec des amendements:

Bill 132, An Act to amend the Dog Owners' Liability Act to increase public safety in relation to dogs, including pit bulls, and to make related amendments to the Animals for Research Act.

Projet de loi 132, Loi modifiant la Loi sur la responsabilité des propriétaires de chiens pour accroître la sécurité publique relativement aux chiens, y compris les pit-bulls, et apportant des modifications connexes à la Loi sur les animaux destinés à la recherche.

The motion having been put, was carried on the following division:-

La motion, mise aux voix, est adoptée par le vote suivant:-

AYES / POUR - 61

Arthurs

Bartolucci

Bentley

Berardinetti

Bountrogianni

Bradley

Broten

Brown

Brownell

Bryant

Cansfield

Caplan

Chambers

Colle

Cordiano

Crozier

Delaney

Dhillon

Dombrowsky

Duguid

Duncan

Flynn

Fonseca

Gerretsen

Gravelle

Hoy

Jeffrey

Kular

Lalonde

Leal

Levac

Marsales

Matthews

McMeekin

McNeely

Meilleur

Milloy

Mitchell

Orazietti

Parsons

Patten

Peters

Phillips

Pupatello

Qaadri

Racco

Ramal

Ramsay

Rinaldi

Ruprecht

Sandals

Smith

Smitherman

Sorbara

Takhar

Van Bommel

Watson

Wilkinson

Wong

Wynne

Zimmer

NAYS / CONTRE - 25

Baird

Barrett

Bisson

Chudleigh

Churley

Dunlop

Flaherty

Hardeman

Horwath

Hudak

Klees

Kormos

Marchese

Martel

Martiniuk

Miller

Munro

O'Toole

Ouellette

Prue

Scott

Tascona

Wilson

Witmer

Yakabuski

And the Bill was accordingly Ordered for Third Reading.

En conséquence, le projet de loi est ordonné pour la troisième lecture.

Mrs. Jeffrey from the Standing Committee on General Government presented the Committee's Report which was read as follows and adopted:

M^me Jeffrey du Comité permanent des affaires gouvernementales présente le rapport du comité qui est lu comme suit et adopté:

Your Committee begs to report the following Bill as amended:

Votre comité propose qu'il soit permis de faire rapport sur le projet de loi suivant avec des amendements:

Bill 135, An Act to establish a greenbelt area and to make consequential amendments to the Niagara Escarpment Planning and Development Act, the Oak Ridges Moraine Conservation Act, 2001 and the Ontario Planning and Development Act, 1994. Ordered for Third Reading.

Projet de loi 135, Loi établissant la zone de la ceinture de verdure et apportant des modifications corrélatives à la Loi sur la planification et l'aménagement de l'escarpement du Niagara, à la Loi de 2001 sur la conservation de la moraine d'Oak Ridges et à la Loi de 1994 sur la planification et l'aménagement du territoire de l'Ontario. Ordonné pour la troisième lecture.

MOTIONS

MOTIONS

With unanimous consent, on motion by Mr. Duncan,

Avec le consentement unanime, sur la motion de M. Duncan,

Ordered, That notwithstanding the Order of the House dated Thursday, June 17, 2004 regarding the schedule for committee meetings, the Standing Committee on Public Accounts may meet at the call of the Chair on Thursday, February 17; Thursday, February 24 and Thursday, March 3, 2005.

Notwithstanding Standing Order 53, with unanimous consent, on motion by Mr. Duncan,

Ordered, That, notwithstanding Standing Order 96(d), the following change be made to the ballot list of Private Members' Public Business:

Mr. Racco and Mr. Wong exchange places in the order of precedence such that Mr. Racco assumes ballot item number 72 and Mr. Wong assumes ballot item number 50.

Mr. Duncan moved,

M. Duncan propose,

That pursuant to Standing Order 9(c)(i), the House shall meet from 6:45 p.m. to 9:30 p.m. on Tuesday, February 15, 2005, and Wednesday, February 16, 2005, for the purpose of considering government business.

The question being put on the motion, it was carried on the following division:-

La motion, mise aux voix, est adoptée par le vote suivant:-

AYES / POUR - 82

Arthurs

Baird

Barrett

Bartolucci

Bentley

Berardinetti

Bountrogianni

Bradley

Broten

Brown

Brownell

Bryant

Cansfield

Caplan

Chambers

Chudleigh

Colle

Cordiano

Crozier

Delaney

Dhillon

Di Cocco

Dombrowsky

Duguid

Duncan

Dunlop

Flaherty

Flynn

Fonseca

Gerretsen

Gravelle

Hardeman

Hoy

Hudak

Jeffrey

Kennedy

Klees

Kular

Kwinter

Lalonde

Leal

Levac

Marsales

Martiniuk

Matthews

McMeekin

McNeely

Meilleur

Miller

Milloy

Mitchell

Mossop

Munro

Orazietti

O'Toole

Ouellette

Parsons

Patten

Peters

Phillips

Pupatello

Qaadri

Racco

Ramal

Ramsay

Rinaldi

Ruprecht

Sandals

Scott

Smith

Smitherman

Sorbara

Takhar

Tascona

Van Bommel

Watson

Wilkinson

Wilson

Witmer

Wong

Wynne

Zimmer

NAYS / CONTRE - 7

Bisson

Hampton

Horwath

Kormos

Marchese

Martel

Prue

At 4:00 p.m., pursuant to Standing Order 30(b), the Speaker interrupted the proceedings and called Orders of the Day.

À 16 heures, conformément à l'article 30(b) du Règlement, le Président interrompt les délibérations et passe à l'ordre du jour.

ORDERS OF THE DAY

ORDRE DU JOUR

The Speaker informed the House that, in the name of Her Majesty the Queen, His Honour the Lieutenant Governor had been pleased to assent to the following bills in his office on December 16, 2004:

Le Président avise l'Assemblée qu'au nom de Sa Majesté la Reine, Son Honneur le lieutenant-gouverneur a eu le plaisir de sanctionner les projets de loi suivants dans son cabinet le 16 décembre 2004 :

Bill 17, An Act to amend the Executive Council Act.

Projet de loi 17, Loi modifiant la Loi sur le Conseil exécutif.

Bill 82, An Act to amend the Ontario College of Teachers Act, 1996 to cancel the Professional Learning Program.

Projet du projet de loi 82, Loi modifiant la Loi de 1996 sur l'Ordre des enseignantes et des enseignants de l'Ontario en vue d'annuler le programme de perfectionnement professionnel.

Bill 84, An Act to provide for fiscal transparency and accountability.

Projet de loi 84, Loi prévoyant la transparence et la responsabilité financières.

Bill 96, An Act to amend the Liquor Licence Act.

Projet de loi 96, Loi modifiant la Loi sur les permis d'alcool.

Bill 106, An Act to implement Budget measures.

Projet de loi 106, Loi mettant en _uvre certaines mesures budgétaires.

Bill 124, An Act to amend the Health Protection and Promotion Act.

Projet de loi 124, Loi modifiant la Loi sur la protection et la promotion de la santé.

Bill 149, An Act to implement 2004 Budget measures, enact the Northern Ontario Grow Bonds Corporation Act, 2004 and amend various Acts.

Projet de loi 149, Loi mettant en oeuvre certaines easures énoncées dans le Budget de 2004, édictant la Loi de 2004 sur la Société d'émission d'obligations de développement du Nord de l'Ontario et modifiant diverses lois.

Bill 160, An Act to authorize the expenditure of certain amounts for the fiscal year ending March 31, 2005.

Projet de loi 160, Loi autorisant l'utilisation de certaines sommes pour l'exercice se terminant le 31 mars 2005.

A debate arose on the motion for Second Reading of Bill 164, An Act to rename and amend the Tobacco Control Act, 1994, repeal the Smoking in the Workplace Act and make complementary amendments to other Acts.

Il s'élève un débat sur la motion portant deuxième lecture du projet de loi 164, Loi visant à modifier le titre et la teneur de la Loi de 1994 sur la réglementation de l'usage du tabac, à abroger la Loi limitant l'usage du tabac dans les lieux de travail et à apporter des modifications complémentaires à d'autres lois.

After some time, pursuant to Standing Order 9, the motion for the adjournment of the debate was deemed to have been made and carried.

Après quelque temps, conformément à l'article 9 du Règlement, la motion d'ajournement du débat est réputée avoir été proposée et adoptée.

The House then adjourned at 6:00 p.m.

À 18 h, la chambre a ensuite ajourné ses travaux.

6:45 P.M.

18 H 45

ORDERS OF THE DAY

ORDRE DU JOUR

A debate arose on the motion for Second Reading of Bill 158, An Act to replace the Theatres Act and to amend other Acts in respect of film.

Il s'élève un débat sur la motion portant deuxième lecture du projet de loi 158, Loi remplaçant la Loi sur le cinémas et modifiant d'autres lois en ce qui concerne les films.

After some time, pursuant to Standing Order 9, the motion for the adjournment of the debate was deemed to have been made and carried.

Après quelque temps, conformément à l'article 9 du Règlement, la motion d'ajournement du débat est réputée avoir été proposée et adoptée.

The House then adjourned at 9:30 p.m.

À 21 h 30, la chambre a ensuite ajourné ses travaux.

le président

Alvin Curling

Speaker

PETITIONS TABLED PURSUANT TO STANDING ORDER 38(a)

Petition relating to the bill proposing an amendment to The Optometry Act (Sessional Paper No. P-7) (Tabled February 15, 2005) Mr. Wilkinson.

Petition relating to permanently funding audiologists directly for the provision of audiology services (Sessional Paper No. P-174) (Tabled February 15, 2005) Mr. Wilkinson.

SESSIONAL PAPERS PRESENTED PURSUANT TO STANDING ORDER 39(a)

DOCUMENTS PARLEMENTAIRES DÉPOSÉS CONFORMÉMENT À L'ARTICLE 39(a) DU RÈGLEMENT

RESPONSES TO PETITIONS

RÉPONSES AUX PÉTITIONS

Responses to petitions tabled on January 13, 2005

Responses to petitions tabled on February 1, 2005

Responses to petitions tabled on February 4, 2005