Parliamentary Privilege First Report

Memorandum by the Saskatchewan Legislative Assembly


1.  (a)   Are there any differences between the scope of the privileges of your Parliament compared with the national Parliament?

  Yes there is a difference. The Parliament of Canada has legislated the same privileges as held by the UK House of Commons at the time of Confederation. The Saskatchewan Legislative Assembly has not claimed in statute the same privileges as the Canadian House of Commons or Westminster. Rather, the Saskatchewan Legislative Assembly has codified certain privileges in the Legislative Assembly and Executive Council Act and has included a "saving clause" which says that the Assembly's privileges are not limited by the Act and in essence, claims the privileges available through the common law. In practice, the House assumes it has all the privileges common to the Westminster style parliaments but this has been rarely tested outside the Assembly.

1.  (b)   Does Article 9 of the Bill of Rights 1689 expressly or implicitly apply to your legislature?

  While we use Article 9 of the Bill of Rights to explain and justify parliamentary privilege, it technically applies only implicitly to our legislature, ie, through the common law.

1.  (c)   Is this interpreted as meaning that a Member's immunity from an action for defamation is absolute in respect of everything said and done in the proceedings of the legislature?

  Yes, a Member's immunity from an action for defamation is absolute in respect of things said and done in the proceedings but this is because this immunity is one of the privileges legislated in our Act.

1.  (d)   Does this even extend to the revelation of official secrets in debate?

  As a provincial jurisdiction, Saskatchewan does not have an Official Secrets Act and would not likely have access to information covered by the Federal equivalent, but while this is untested, it would be our view that the privilege would extend to the revelation of official secrets in debate.

2.   Are there any statutes or other provisions defining your privileges?

  Yes, Saskatchewan has codified certain basic privileges in the Legislative Assembly and Executive Council Act. The relevant sections are attached.

3.   Do you have exclusive control over your procedure (in your ability to make Standing Orders for example)?

  Yes, the Legislative Assembly has exclusive control over its internal procedure. This was recently substantiated at the provincial level by a Supreme Court decision—NB Broadcasting Co v Nova Scotia (Donohoe) [1993] SCR 319.

4.   Do you have exclusive control over the buildings in which the legislature meets and over its staffing and administration?

  The Speaker has responsibility for security throughout the Legislative Building but shares responsibility for mainteance, operations and space allocation with the Saskatchewan Property Management Corporation and the Department of Executive Council.

  Staffing and administration of the Legislative Assembly is in the exclusive control of the Legislative Assembly through a statutory board called the Board of Internal Economy. The Board is composed of Members from Cabinet, Government private Members and Opposition Members and is chaired by the Speaker. The Board's responsibilities include approval of the Legislative Assembly budget, setting staffing levels and classifications, approving general policies and establishing Members' pay and allowance provisions. Legislative staff are not part of the Public Service but are described in our Act as employees of the Legislative Assembly.

5.   Does the general law (eg on employment, office conditions) automatically apply within the parliamentary precincts; or does it only apply to the extent accepted by parliament and/or the extent specifically provided in statute?

  It has never been claimed that laws establishing labour standards, occupational health and safety or human rights codes do not apply within the parliamentary precincts. In fact the reverse is the case—we assume that these general laws apply unless the Legislative Assembly has been expressly exempted. This is a different view than that taken by the federal Parliament.

6.   Can you punish a member of the public for a "contempt of Parliament?" Is there any appeal to a Court?

  Yes a member of the public can be punished for a contempt of Parliament and there is no appeal to a Court. Section 25 of our Act says: "The determination of the Assembly upon any proceedings under this Act is final and conclusive."

7.   Have you codified those offences which are considered to be a contempt of Parliament? If not, can you give examples of cases where a member of the public has been punished for a contempt?

  The Legislative Assembly and Executive Council Act in section 24 (attached) codifies certain offences but is not exhaustive. The House has not attempted to define or codify that which may constitute a contempt other than through decisions relating to Speaker's rulings on individual cases.

  Most recent contempt cases have involved sitting Members of the Assembly but in 1916 the Assembly committed a member of the public to the custody of the Sergeant-at-Arms for his refusal to answer questions put to him at the bar of the House.

  In a more recent case in 1984, the Legislative Assembly determined that a lawyer who had initiated a libel action against a Member for things he had said in the House was guilty of a contempt. The House requested that the lawyer apologise to the House through a letter to Mr Speaker. The legal action was dropped and upon receipt of the letter of apology, the House accepted it and did not pursue the matter further.

8.   Are there any circumstances (eg where a parliamentary committee's responsibilities relate to the administrative management of the House or the letting of contracts) where the proceedings of such a committee can be considered by a Court (eg in a dispute over a contract)?

  We don't have any precedents in this area but would take the position that the proceedings of a legislative committee could not be considered by a Court. But in our case, questions of administrative management are usually made by the Board of Internal Economy which is a statutory authority and not a parliamentary committee. We expect that the decisions of the Board relating to administrative matters such as contracts could very well be within the purview of the Courts.

9.   The United Kingdom Government may introduce legislation on corruption which, as part of a general reform, will include an offence of bribery of an MP or a Peer.

9.  (a)   What statutory offence exists in relation to bribery of a member of the legislature?

  The Legislative Assembly and Executive Council Act provides that the Assembly may inquire into and punish instances of bribery described as follows in subsection 24(c) : "any offer to, or acceptance by, a member of a bribe to influence him in his proceedings as a member, or of any fee, compensation or reward for or in respect of the promotion of a bill, resolution, matter or thing submitted to or intended to be submitted to the Assembly or a committee of the Assembly;" In addition, sections 31, 32 and 33 prohibit a Member from receiving compensation or reward for services rendered in relation to any business before the House. We believe these provisions could be enforced by the House or in a Court of law or both.

  The Criminal Code of Canada also contains an offence of bribery applicable to a member of a provincial legislature in sections 118-122.

9.  (b)   Who authorises prosecution?

  Any Member may raise breaches of section 24 of The Legislative Assembly and Executive Council Act in the House and it is the House that decides the matter.

  Where prosecution is under the Criminal Code, it is the Chief Crown Prosecutor of the province or his/her designate who authorises prosecution.

9.  (c)   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?

  This remains a grey area as we have very little in the way of precedent. We believe that it is certain that a Member may not be sued for things said by him/her in the course of proceedings in the Assembly but it is not certain that Courts could not hear and examine evidence on what a member has said and done in the course of proceedings if the judicial proceeding is for purposes other than an action against the Member.

9.  (d)   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?

  Probably but this also is uncertain.

10.   Is there any procedure for "waiving privilege" when a member of the legislature is charged with an offence relating to his or her parliamentary duties?

  Saskatchewan has no practice, standing orders or statutory provisions that address the question of waiving privilege. It would be our view that the individual member has no ability to "waive privilege". It is also doubtful whether the House could "waive privilege" in any formal way but could possibly choose not to invoke or exercise its privileges.

11.  (a)   To what extent does privilege provide for immunity from arrest or from attendance, as a witness, or as a defendant in a civil suit, before a Court?

  The following sections in The Legislative Assembly and Executive Council Act provide immunity from arrest, from civil action and from attendance as jurors before a Court during the time the Legislature is in session. We also believe that under common law privilege Members would be exempt from being called as a witness during legislative sittings.

  See sections 27(1); 28; and 29 attached.

11.  (b)   Are any such immunities confirmed in statute?

  Yes—see legislative provisions quoted above in subsection 11(a).

11.  (c)   Does any immunity extend to attendance before tribunals (or Royal Commissions?)

  The legislation does not address attendance before tribunals but if attendance interfered with the ability of the Member to carry out his or her duty to attend the House, it is likely that privilege could be claimed to exempt the Member as the House has the first right to the attendance of its Members.

11.  (d)   What limitations are placed on any immunity?

  The chief limitation is that the immunity applies during the time the Legislature is in session. The immunity applies only to civil and not criminal actions.

11.  (e)   Can a member of the legislature be served with a subpoena which requires him or her to appear in Court on a day when the legislature is sitting?

  While a Member may be served with such a subpoena, the Member may make representations it is not exercisable during the sittings of the House.

11.  (f)   Is any right of immunity exercised by a member without reference to the House of its Presiding Officer, or is authorisation required?

  We have a recent case (G. Muirhead) where a Member successfully claimed immunity from civil action during the session under section 28. The Judge accepted the Member's claim and postponed the court case until after the end of the session. In this instance the claim to immunity was raised by the Member before the Court without reference to the House. We have no explicit provisions in this regard.

12.   Can a member of the legislature be served with a subpoena in the precincts of Parliament on a sitting day? On a non-sitting day? Or would such service be regarded as a contempt?

  A Member may be served with a subpoena within the precincts on a sitting day or on a non-sitting day but only where the service has been conducted through the proper protocol that requires the Speaker's consent and ensures that officers of the House have reviewed the document as to form and validity. Service or attempted service without obtaining the Speaker's consent could be regarded as a contempt; however, we have a precedent where service of a subpoena on a Member during the sitting within the precincts was done without the Speaker's knowledge and no question of privilege was raised regarding the matter of service.

  We are currently preparing a Protocol to codify and clarify our practice with respect to the service of legal documents and warrants in the precincts. The Protocol was prepared to provide police forces and document servers with information on the proper procedures to be followed for service within the Legislative Building. This policy has not been formally adopted as this time.

13.   Can the legislature suspend or expel one of its members?

  In 1984, the Legislative Assembly amended The Legislative Assembly and Executive Council Act to provide authority for the Assembly to suspend or expel a Member (section 40.1). At the time the Legislature wished to expel a Member who had been convicted of murder and there was some doubt whether expulsion by resolution under common law privileges could be challenged as punishment and therefore be beyond the powers necessary for the conducting of the affairs of the Assembly. In addition to section 40.1 as attached, the Assembly also saw fit to add another "saving clause" as section 40.2 to ensure that the legislated provisions in section 40.1 did not limit the right of the House to expel according to parliamentary practice.

14.  (a)   Has the legislature the power to fine?

  Section 24 lists offences which the Assembly has the power to inquire into and punish. In subsection 24(3) the Assembly is empowered to order imprisonment but there is no express provision to fine. The only exception to this is in sections 31-33 where a member who violates the prohibitions against receiving any fee or compensation related to business of the House or an attempt to influence another member may be subject to a penalty and repayment of the compensation.

14.  (b)   Has it ever used the power?


15.  (a)   Do you have provision for citizen's right of reply to what is said in Parliament?


15.  (b)   If so how is it implemented?

  Not applicable.

16.   Do you have provisions in Standing Orders or elsewhere for the protection of witnesses who appear before parliamentary committees?

  Subsection 24(e) of The Legislative Assembly and Executive Council Act makes tampering with a witness with regard to evidence to be given before the Assembly or a committee an offence that the House may punish. Neither our Standing Orders nor our Act specifically provide protection for witnesses for what they may say in committee proceedings. However, our practice reflects our belief that witnesses are protected from their testimony being used in a court of law by common law privilege and by provisions in the Canadian Charter of Rights and Freedoms. A copy of the statement read to witnesses appearing before certain legislative committees is attached.

  Section 26 of the Act may also be construed to offer some protection to witnesses although we believe that was not its original purpose.

17.  (a)   Are such witnesses protected against intimidation in respect of their evidence by statute?

  Yes—see subsection 24(e) as referred to in Question 16 above.

17.  (b)   Or is this treated as a contempt of the legislature and punished by it?

  It may be treated as contempt of the legislature and punished by the House or the provision could be upheld in the courts.

18.   Is perjury before the legislature or a committee of the legislature punished by the Courts, or is it punished by the legislature as a contempt?

  It could be punished by the legislature under subsection 24(h) or by the Courts or both, it appears. We have no precedent in this area.

19.   Is there statutory provision to give absolute privilege to papers published under the authority of the legislature?

  There is no specific provision.

20.   Do you have a "freedom of information Act"? Does it apply to the legislature in any respect?

  Yes, Saskatchewan has enacted an act called The Freedom of Information and Protection of Privacy Act, chapter F-22.01 of the Statutes of Saskatchewan, 1990-91. The Legislative Assembly is specifically exempted from the provisions of the Act by excluding the Legislative Assembly Office and offices of members of the Assembly from the definition of "Government institution."

Gwen Ronyk,

Clerk of the Legislative Assembly

29 April 1998

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Prepared 9 April 1999