Memorandum by the Legislative Assembly
The following is Alberta's response to the questions
posed in the 23 February 1998 letter to W J David McNeil. We are
pleased to be given the opportunity to provide information to
the Joint Committee on the status of privilege in the province
of Alberta. There are, however, a few points that should be made
at the outset. With respect to some of the questions, the specific
issue may not have arisen in Alberta. Where this is the case,
we have attempted to allude to the absence of a specific situation.
Given that our Assembly has been in session since we received
the letter, we have not necessarily had the time to conduct as
much research as we may have liked. However, in an effort to provide
a somewhat timely response, we have attempted to be as comprehensive
as time allows.
9 OF THE
RIGHTS 1689 EXPRESSLY
In general, the scope of privileges in the Alberta
Assembly is similar to that in the Canadian House of Commons and
Senate. Of course, given Canada's federal system created by the
Constitution Act, 1867, provincial assemblies are distinct
and independent of the federal Parliament. Therefore, while the
general scope of privileges may be the same, the rules and practices
surrounding the application of privilege differ by jurisdiction.
With respect to the application of Article 9
of the Bill of Rights, 1689, it may have been thought that
it was part of the Constitution and applied to the Alberta Assembly
and all assemblies in Canada until the Supreme Court of Canada's
decision in New Brunswick Co v Nova Scotia (Speaker, House
of Assembly) (1993) 100 D.L.R. (4th) 212 (hereinafter "Donahoe"
who was the Speaker of the Nova Scotia Assembly at the time).
This case represents a watershed in the recognition of parliamentary
privilege as the Supreme Court held that the inherent privileges
of an Assembly enjoy constitutional status and cannot be abrogated
by another part of the Constitution such as the Canadian Charter
of Rights and Freedoms. We will not recite the particulars
of this case, which are addressed in Chapter 14 of the second
edition of Joseph Maingot's Parliamentary Privilege in Canada
(House of Commons and McGill-Queen's 1997), which you apparently
have as indicated in your 23 February 1998 letter. In Donahoe,
Justice McLachlin, writing for the majority, states at 262 that
while specific articles of the Bill of Rights are not part
of the Constitution, "This is not to say the principles underlying
art 9 of the English Bill of Rights of 1689 do not form
part of our law and inform our understanding of the appropriate
relationship between the courts and legislative bodies in Canada."
In Alberta, section 13 of the Legislative
Assembly Act, SA 1983, chapter L-10.1 (as amended), expressly
states that a Member is not liable to any civil action or prosecution,
arrest, imprisonment or damages for anything said by him in the
Assembly or any committee of the Assembly. Furthermore, under
section 10(2)(k) of the Act, it is a breach of privilege or a
contempt of the Assembly to take any civil action against a Member
for anything said by him before the Assembly or a committee of
the Assembly. Under section 10 of the Defamation Act, RSA
1980, chapter D-6, (as amended), a fair and accurate report published
in a newspaper or by broadcasting of the proceedings in the Legislative
Assembly of Alberta is privileged unless it is made maliciously.
With respect to official secrets, those are
generally matters of concern in the federal Parliament.
The above-noted Legislative Assembly Act
is enclosed for your information.
The Legislative Assembly has exclusive control
over its procedure under section 8 of the Legislative Assembly
Act. The only restriction would be that the procedure must
conform with the Constitution and the statutes of Alberta. For
instance, the Supreme Court of Canada held in R v Mercure
(1988) 1 SCR 234, that among other uses, French could be spoken
in the Saskatchewan Assembly. As Alberta and Saskatchewan were
created from the North-West Territories and that the Saskatchewan
Act, 1905 and the Alberta Act, 1905 are virtually the
same, it was perceived that the ruling applied to Alberta. Accordingly,
the Alberta Legislature passed the Languages Act 1988.
Under section 5(1) of this Act, Members of the Assembly may use
English or French in the Assembly. Section 5(3) provides that
the Standing Orders, records and journals of the Assembly may
be made, printed and published in English. Section 5(4) allows
the Assembly to direct by resolution that the records of the Assembly
be printed or published in English or French or both.
The Assembly does not have exclusive control
over the building in which the Legislature meets. The Assembly
has control only over the Legislature Chamber and environs and
the offices in which the staff of the Assembly are housed within
the Legislature Building. The Government, through the department
of Public Works, Supply and Services, allocates the balance of
the space within the building to Ministers and their staff. Common
services such as caretaking, utilities, etc. are managed by the
Department of Public Works, Supply and Services.
The Assembly has exclusive control over its
staffing and administration including separate financial and human
resource management systems.
The issue of the application of general law
(eg employment statutes) to the parliamentary precincts is one
that has not been litigated in Alberta. Certainly, the general
rule may be that a statute must specifically refer to the Legislative
Assembly Office (LAO), which is the legal entity created under
section 19 of the Legislative Assembly Act as the administrative
arm of the Assembly, in order for the LAO to be covered. In Alberta,
for instance, the Employment Standards Code applies to
all employers in the province, including the Crown. As such, it
may be assumed that it applies to the LAO. The LAO is the entity
which enters into employment contracts with all employees of caucuses
and the Members' constituency offices. However, a recent decision
from Ontario in Soth v Speaker of the Ontario Assembly
(1997) 32 OR (3d) 440 (Div Crt) represents the most recent treatment
of the issue and refers to the most relevant case law in the area.
This decision is attached for your reference.
In theory, a member of the public can be held
to be in contempt of the Assembly. In this regard, please see
sections 10, 11 and 12 of the Legislative Assembly Act. This
almost occurred in 1996 when a lawyer wrote a letter to the Leader
of the Opposition threatening him with legal action if he asked
certain questions in the House (Rulings enclosed).
Once again, please see section 10 of the Legislative
This is a most interesting question. If the
parenthesis were removed and the question was whether a Court
could consider the proceedings of a committee of the Assembly,
the answer would be a qualified "yes". While it may
be abhorrent to parliamentarians, courts in Canada have, over
the years, relaxed the exclusionary rule about admitting Hansard
as evidence. It was not until 1978 that the Supreme Court
affirmed the admission of extrinsic materials in Reference
re Anti-Inflation Act, 1975. The admission was, at the time,
limited to constitutional cases. The gates were opened somewhat
wider by the late Justice Sopinka's judgment in R v Morgentaler
 3 SCR 463, wherein he cast doubt on the former exclusionary
rule about evidence of legislative history. He indicated that
as long as courts are mindful of the limited reliability and weight
of Hansard evidence, it should be admitted as relevant
to both the background and purpose of the legislation. While technically
still applicable only to constitutional cases, it is likely fair
to say that Hansard evidence is being used in non-constitutional
cases in the interests of the "purposive approach" to
statutory interpretation. Certainly there has not been a case
considering whether the admission of such Hansard evidence
violates Article 9 of the Bill of Rights, 1689. In other
words, to our knowledge, there is no case in Alberta or Canada
comparable to Pepper v Hart.
With the parenthesis, the question seems to
be whether the proceedings of a committee could be considered
by a court if the proceedings dealt with an employment contract
or presumably a dismissal pursuant to an employment contract.
In Alberta, this would seem to be an open question as there is
not a decision directly on point or even vaguely on point. Generally
speaking, most employment matters are the responsibility of the
LAO. Committees of the Assembly are not, generally speaking, involved
in the vast majority of employment matters.
MP OR A
what statutory offence exists
in relating to bribery of a member of the legislature?
who authorises prosecution?
are there circumstances where
the Court can hear and examine evidence on what a member of the
legislature has said and done in the course of proceedings?
are there circumstances where
a tribunal (or a Royal Commission) may do so either in circumstances
where corruption is alleged, or in any other circumstances?
Offering a bribe to a member of a provincial
legislature or the acceptance of a bribe (any money, valuable
consideration, office, place of employment for himself or another
person in respect of anything done or omitted to be done or omitted
by him is his official capacity) by a Member, is a criminal offence
under section 119 of the Criminal Code RSC 1985, c C-46.
In Arseneau v The Queen  2 SCR 136, it was held that
the "official capacity" of a member extended to the
actions of a Minister so that the section applied to Ministers.
As in most criminal matters, the prosecution
of the offence would be a matter for the provincial Attorney General.
While the federal Parliament makes the criminal law in Canada
(section 91(27) Constitution Act, 1867) it is the provinces
which are responsible for the administration of justice (section
92(14)) and which are expressly authorised to conduct prosecutions
by the Criminal Code. There is no Director of Public Prosecutions
Section 10(1)(c) of the Legislative Assembly
Act makes it a breach of privilege or a contempt of the Assembly
for the offer to or acceptance by a Member of a bribe "to
influence him in his conduct as a Member" or of a fee or
reward in respect of "drafting, advising on, revising, promoting,
or opposing any bill, resolution, petition or other matter submitted
or intended to be submitted to the Assembly or a committee of
We are not aware of a case of bribery of a Member
being the basis of a question of privilege in Alberta so there
is no factual situation on which to base an answer to your final
two points in this question.
While this is a most interesting question, we
must advise that there is no express procedure for a Member waiving
his or her privileges with respect to an offence relating to his
or her parliamentary duties. This is not to say it could not be
done but rather that the situation has not arisen to our knowledge.
In Alberta, parliamentary privilege includes
immunity for Members from arrest and attendance in a civil proceeding.
This privilege is, to a certain degree, outlined in section 10(2)
of the Legislative Assembly Act (attached, in particular
refer to clauses (k) and (l)).
Although the legislation does not expressly
outline the duration of this immunity, it is considered to apply
for the period of 40 days before and after a session and 40 days
after dissolution of a Legislature. The authority for this principle
stems from the privileges of Members of the United Kingdom House
of Commons which are deemed to apply to the Members of the Alberta
Legislative Assembly. This is codified in section 9(1) of the
Legislative Assembly Act.
Members do not require authorization from the
House, or its Presiding Officer, to exercise the right of immunity.
We have attached a copy of the Legislative Assembly
of Alberta's policy with respect to the service of documents at
the Legislature Building and its precincts.
Generally speaking, legal documents relating
to civil matters cannot be served on a Member of the Alberta Legislative
Assembly within the Legislature Building or its precincts unless
the permission of the Speaker or the House is first obtained.
If the documents pertain to an action involving a Member of Executive
Council in his or her capacity as a Minister of the Crown, the
document server is directed to the Department of Justice, which
is the appropriate manner to effect service for an action involving
the Crown in right of Alberta under section 13 of the Proceedings
Against the Crown Act, RSA 1980, c P-18 (attached).
In 1987, a matter of privilege arose in the
Alberta Legislative Assembly relating to documents which were
served by a Member on two Cabinet Ministers when the Assembly
was in session. The action alleged that lottery money held by
the Western Canada Lottery Corporation for the account of the
Government of Alberta was public money within the meaning of the
Financial Administration Act and that the Treasurer and
the Minister of Career Development and Employment were acting
contrary to the law by failing to place these monies in the General
Revenue Fund. Both Ministers argued that the service of these
documents constituted a breach of their privileges as Members.
Speaker Carter ruled that this was a prima facie case of privilege.
A motion was subsequently moved by one of the Cabinet Ministers
which, if passed, would require the Member who had initiated the
action to apologize in the Assembly at the earliest possible opportunity.
An amendment to this motion was moved which would have provided
that the Assembly refer the matter to the Standing Committee on
Privileges and Elections, Standing Orders and Printing. The amendment
to the motion was defeated by the Assembly and the original motion
was passed. The Member subsequently apologized to the Ministers
and the Assembly.
To our knowledge, the matter of privilege has
not arisen with respect to the service of documents on Members
when the Assembly is not sitting.
Disqualification of Members
Sections 25-35 of the Legislative Assembly
Act address the grounds for disqualification of Members and
the procedures which must be followed. There are three grounds
for disqualification from membership of the Alberta Assembly which
are expressly provided in the legislation:
1. a Member ceases to be a Canadian citizen;
2. a Member fails to comply with the Election
Finances and Contributions Disclosure Act, the Speaker has
laid a report before the Assembly to that effect, the financial
statement has not been filed with the Chief Electoral Officer
and the court has not dispensed with compliance;
3. a Member becomes a member of the Senate
or the House of Commons of Canada.
Disqualification on the basis of citizenship
does not occur until a court makes a finding to that effect (section
32(1)). Disqualfication on the remaining grounds does not occur
until a court makes a finding to that effect and the Member has
been declared disqualified by the Assembly pursuant to the procedures
outlined in section 35. The procedure in section 35 can be summarized
The Speaker lays a copy of the court's
judgment before the Assembly at the earliest opportunity.
If the judgment includes a finding
of disqualification, then the judgment stands referred to the
Standing Committee on Privileges and Elections, Standing Orders
and Printing for its review and report.
After the Standing Committee has
tabled its report, the Assembly may do any of the following:
1. declare the Member disqualified,
2. if the Assembly determines that disqualification
is not warranted but the Member is deserving of punishment, by
order suspend the Member's right to sit and vote in the Assembly
for a stated period or until the fulfilment of a condition in
the order, or
3. declare that the Member is not disqualified
if the Assembly finds that the allegations are not proven or that
disqualfication is not warranted under the circumstances.
In 1920, there was an attempt in the Alberta
Legislative Assembly to move adjournment of the ordinary business
of the House to debate whether a Member should be disqualified
to sit as a Member for the reason that he was not a resident of
the Province of Alberta. The Speaker ruled that this was not a
matter on which he should be called upon to give a decision and
stated that it is the duty of the Speaker to recognize every Member
who has been gazetted as a Member of the House and who has taken
the oath of office, unless otherwise instructed by the House.
To date, this is the only record of the matter
of disqualification of a Member being raised in the Assembly.
Supreme Court of Canada decisionHarvey
The 1996 Supreme Court of Canada decision in
the case of Harvey v. New Brunswick (Attorney General)
addressed the issue of disqualification of a Member in connection
with his conviction of a corrupt or illegal practice under New
Brunswick's Election Act. The Election Act provided
that on conviction the Member would be disqualified from voting,
holding government office, standing for election for five years
or continuing to sit in the Legislative Assembly. This legislation
was challenged on a number of grounds as violating the Charter
of Rights, most notably section 3 which guarantees the right
to vote and to run for election to the House of Commons or a Legislative
Assembly. The Supreme Court of Canada upheld the impugned provision
in the Election Act. The Court was, however, divided in
its reasoning. The majority decision based its reasoning on applying
the Charter of Rights to the impugned provision in the
Election Act. Madam Justice McLachlin, writing for herself
and Madam Justice L'Heureux-Dube, based her decision on parliamentary
privilege. She held that the legislative provisions in dispute
were extensions of parliamentary privilege and the courts were
not to intervene as privilege is constitutionally protected and
one part of the Constitution, ie the Charter of Rights, cannot
"trump" another part. The majority decision refused
to consider the issue of parliamentary privilege as it was raised
by an intervenor in the case and not by an actual party to the
action. Chief Justice Lamer stated in the majority decision on
the issue of parliamentary privilege, "However, I will leave
it to another day when the issue is properly before this Court."
PunishmentBreach of privilege or contempt
If a Member is found by the Assembly to have
committed a breach of privilege or a contempt of the Assembly,
the Member's right to sit and vote in the Assembly can be suspended
for a stated period or until the fulfilment of a condition in
an order of the Assembly (section 11(1)(c) of the Legislative
Naming by the Speaker
There have been several occurrences in the Alberta
Legislative Assembly where the Speaker has named a Member and
requested that the Member withdraw from the House.
Suspension of a Member
There has been one occurrence where the Assembly
has approved a motion suspending a Member. The situation arose
in 1952 when a Member made derogatory comments about a civil servant
during Committee of Supply. The Assembly unanimously approved
a motion that the Member be suspended for two sitting days and
until the Member advised that he was prepared to withdraw his
derogatory comments and apologize to the Assembly.
PunishmentBreach of Conflicts of Interest
In Alberta, Members are subject to the Conflicts
of Interest Act. Alleged breaches of this legislation are
investigated by an officer of the Legislature, The Ethics Commissioner.
The Ethics Commissioner, upon investigating an alleged breach,
prepares a report which outlines his findings. This report is
forwarded to the Speaker who must table it in the Assembly. Section
26 of the Conflicts of Interest Act provides that the Legislative
Assembly shall deal with a report of the Ethics Commissioner within
60 days after the tabling of the report or such other period determined
by resolution of the Assembly. In his report, the Ethics Commissioner
may recommend any one of the following sanctions:
that the Member be reprimanded;
that a penalty be imposed on the
Member in an amount recommended by the Ethics Commissioner;
that the Member's right to sit and
vote in the Legislative Assembly be suspended for a stated period
or until the fulfilment of a condition;
that the Member be expelled from
membership of the Assembly.
Section 27 of the Conflicts of Interest Act
expressly provides that the Assembly may accept or reject
the findings of the Ethics Commissioner or substitute its own
findings. If the Assembly determines that there is a breach, the
Assembly may do any of the following:
impose the sanction recommended by
the Ethics Commissioner;
impose a different sanction; or
We attach the relevant provisions of the Conflicts
of Interest Act.
The Assembly has the power to fine but, to the
best of our knowledge, has never used that power.
This power is, to a certain degree, outlined
in legislation. Section 11(1) of the Legislative Assembly Act
provides that a person who is found by the Assembly to have
committed a breach of privilege or contempt may be liable to a
penalty in an amount determined by order of the Assembly. Section
12 of the same Act also provides that the Assembly is a court
for the purpose of exercising its powers and jurisdiction. The
Assembly's power to fine is also referenced in the Conflicts
of Interest Act.
To our knowledge there has been one occurrence
where the Assembly exercised its role as a court. In 1938, the
Assembly ordered the arrest of an Edmonton Journal reporter because
he had published statements which were allegedly lies and misrepresentations
concerning Members. The reporter was ordered to appear before
the bar of the House. He was found guilty and sentenced to jail;
however, the reporter did not serve any time in prison because
the House reversed its decision prior to the sentence being carried
No, there is no right of reply for citizens
with respect to what is said in Alberta Legislative Assembly.
QUESTIONS 16 AND
17: DO YOU
Section 10(2)(e) of the Legislative Assembly
Act expressly provides that "tampering with a witness
with regard to evidence given or to be given by him before the
Assembly or a committee of the Assembly" constitutes a breach
of privilege or contempt of the Assembly.
To the best of our knowledge, this matter has
never arisen in our jurisdiction.
Section 10(2)(f) of the Legislative Assembly
Act provides that "giving false evidence or prevaricating
or misbehaving in giving evidence or refusing to give evidence
or to produce papers before the Assembly or a committee of the
Assembly" constitutes a breach of privilege or contempt of
To the best of our knowledge, this matter has
never arisen in our jurisdiction.
Standing Order 107 states that there shall be
a printed record of the deliberations and proceedings of the Assembly
to be known as Hansard which shall be printed and distributed
under the direction and authority of the Speaker (attached). There
is no statutory provision which gives absolute privilege to papers
published under the authority of the Alberta Legislative Assembly
apart from the United Kingdom's legislation, Parliamentary
Papers Act, 1840, which is, arguably, the law of Alberta on
the basis that it was "received" in 1870 when the federal
Parliament created the North-West Territories (from which originated
the province of Alberta) and continued in force the laws in existence
at that time.
In Alberta, there is freedom of information
legislation titled the Freedom of Information and Protection
of Privacy Act. Under this Act, the "Legislative Assembly
Office" is included in the definition of "public body"
and is, therefore, subject to the Act. However, the definition
of "public body" expressly excludes the office of the
Speaker and the office of a Member. Section 4 of the Act states
that the following records are excluded from the legislation:
a record that is created by or for
the office of the Speaker or the office of a Member that is in
the custody or control of the Legislative Assembly Office;
a record that is created by or for
a Member or a member of Executive Council that has been sent or
is to be sent to a Member or a member of Executive Council;
a personal record or a constituency
record of a member of the Executive Council.
The Act recognises parliamentary privilege and
provides that the head of the public body, who is the Speaker
in the case of the Legislative Assembly Office, may refuse to
disclose information that is subject to parliamentary privilege
(section 26). The Act also expressly states that it is the Speaker
who determines whether information is subject to parliamentary
privilege and the Speaker's decision cannot be reviewed (sections
26 and 62).
In 1997, the Legislative Assembly Office received
an access to information request for a Member's expense records.
This request was refused on the basis that these are records outside
the scope of the freedom of information legislation. The refusal
to provide records was the subject matter of an appeal to the
Freedom of Information and Protection of Privacy Commissioner.
In January, 1998, the Commissioner released his decision which
was in agreement with the submissions of the Legislative Assembly
Office that these were records to which the Act did not apply.
We have attached the relevant provisions of
the Freedom of Information and Protection of Privacy Act and
a copy of the Freedom of Information and Protection of Privacy
Commissioner's January, 1998 decision.
20 April 1998