Rules Regarding the Contents of Speeches
References to Members
During debate, Members do not refer to one another by their names140 but rather by title, position or constituency in order to guard against the tendency to personalize debate.141 A Minister is referred to by the portfolio he or she holds.142 The two main party leaders may be referred to as the Right Honourable Prime Minister and the Honourable Leader of the Opposition, and other party leaders are identified as the leaders of their respective parties,143 or simply by the name of their constituencies. Former Prime Ministers sitting in the House are also referred to as “Right Honourable”, as are other Members with this designation. Parliamentary Secretaries, House Leaders and party Whips are typically designated by the posts they hold.
The Speaker will not allow a Member to refer to another Member by name even if the Member speaking is quoting from a document such as a newspaper article. As the Chair has noted, a Member “cannot do indirectly what cannot be done directly”.144
Allusions to the presence or absence of a Member or Minister in the Chamber are unacceptable.145 Speakers have upheld this prohibition on the ground that “there are many places that Members have to be in order to carry out all of the obligations that go with their office”.146
Remarks which question a Member’s integrity, honesty or character are not in order.147 A Member will be requested to withdraw offensive remarks, allegations, or accusations of impropriety directed towards another Member.148 The Speaker has no authority to rule on statements made outside the House by one Member against another.149
Reflections on the House or the Senate
Although the Chair has been known to show considerable leeway at times in recent years, it is generally understood that disrespectful reflections on Parliament as a whole, or on the House or the Senate individually, are not permitted.150 Members of the House and the Senate are also protected by this rule. In debate, the Senate is generally referred to as “the other place” and Senators as “members of the other place”.151 References to Senate debates and proceedings are discouraged152 and it is out of order to question a Senator’s integrity, honesty or character.153 This “prevents fruitless arguments between Members of two distinct bodies who are unable to reply to each other and guards against recrimination and offensive language in the absence of the other party”.154
Reflections on the Chair
Reflections must not be cast in debate on the conduct of the Speaker or other Presiding Officers.155 It is unacceptable to question the integrity and impartiality of a Presiding Officer and, if such comments are made, the Speaker may interrupt the Member and request that the remarks be withdrawn or immediately give the floor to another Member.156 Only by means of a substantive motion, for which 48 hours’ written notice has been given, may the actions of the Chair be challenged, criticized and debated.157 Reflections on the character or actions of the Speaker or other Presiding Officers have been ruled to be breaches of privilege.158
References to the Sovereign, Royal Family, Governor General and Members of the Judiciary
Members are prohibited from speaking disrespectfully of the Sovereign, the Royal Family, the Governor General or the Administrator of the Government of Canada (in the absence of the Governor General).159 In the same way, any reference to these persons which appears intended to influence the work of the House is also prohibited.160
Attacks against and censures of judges and courts by Members in debate have always been considered unparliamentary and consequently treated as breaches of order.161 As Acting Speaker McClelland explained to the House, “This is a longstanding tradition in our Parliament that we be cautious when we attack individuals or groups, particularly in the judiciary, and those who are unable to come in here and have the same right of free expression as we enjoy with impunity here”.162 While it is permissible to speak in general terms about the judiciary or to criticize a law, it is inappropriate to criticize or impute motives directed to a specific judge or to criticize a decision made under the law by a judge.163
Reference by Name to Members of the Public
Members are discouraged from referring by name to persons who are not Members of Parliament and who do not enjoy parliamentary immunity, except in extraordinary circumstances when the national interest calls for this.164 The Speaker has ruled that Members have a responsibility to protect the innocent not only from outright slander, but from any slur directly or indirectly implied, and has suggested that Members avoid as much as possible mentioning by name people from outside the House who are unable to reply in their own defence.165
Reference to Previous Debates and Proceedings
In the past, references to prior debates of the current session were generally discouraged in order to conserve the time of the House and to prevent Members from reviving debates that had concluded, unless the remarks were relevant to the matter under discussion.166 Today, the Speaker’s attention is rarely, if ever, drawn to breaches of this rule. Generally, Members should not quote from their former speeches or from the speeches of their colleagues made during the current session;167 the rule does not apply to speeches on different stages of a bill.168 Direct reference is permitted, however, when a Member wishes to complain of something said or to clear up a misrepresentation or make a personal explanation.169
Members may not speak against or reflect upon any decision of the House.170 This stems from the well-established rule which holds that a question, once put and carried in the affirmative or negative, cannot be questioned again. Such reflections are not in order because the Member is bound by a vote agreed to by a majority.171 The Chair has been quick to call attention to reflections on votes.172 However, if a Member gives notice of his or her intention to move a motion that a vote be rescinded, the House may reconsider an earlier resolution or order.173
The proceedings of the House are based on a long-standing tradition of respect for the integrity of all Members. Thus, the use of offensive, provocative or threatening language in the House is strictly forbidden. Personal attacks, insults and obscenities are not in order.174 A direct charge or accusation against a Member may be made only by way of a substantive motion for which notice is required.175
If language used in debate appears questionable to the Speaker, he or she will intervene. Nonetheless, any Member who feels aggrieved by a remark or allegation may also bring the matter to the immediate attention of the Speaker on a point of order. Points of order may not be raised during Members’ Statements or Question Period;176 however, the Speaker may address a matter of unparliamentary language at once if he or she believes the matter to be sufficiently serious to merit immediate attention.177 Normally, points of order arising from language used during Members’ Statements or Question Period are dealt with at the conclusion of Question Period.178 Since the Speaker must rule on the basis of the context in which the language was used, points of order raised in regard to questionable language must be raised as soon as possible after the alleged irregularity has occurred.179
If the Speaker did not hear the word or words in question, or if there is a dispute as to what words were actually used, the Chair may set the matter aside pending a review of the record, and if necessary, return to the House at a later time with a ruling.180 The Speaker has also ruled that if the Chair did not hear the offensive word or phrase and if the offensive language was not recorded in the Debates, the Chair cannot be expected to rule in the absence of a reliable record.181
In dealing with unparliamentary language, the Speaker takes into account the tone, manner and intention of the Member speaking, the person to whom the words at issue were directed, the degree of provocation, and most important, whether or not the remarks created disorder in the Chamber.182 Thus, language deemed unparliamentary one day may not necessarily be deemed unparliamentary on another day. The codification of unparliamentary language has proven impractical as it is the context in which words or phrases are used that the Chair must consider when deciding whether or not they should be withdrawn.183 Although an expression may be found to be acceptable, the Speaker has cautioned that any language which leads to disorder in the House should not be used. Expressions which are considered unparliamentary when applied to an individual Member have not always been considered so when applied “in a generic sense” or to a party.184
Should the Speaker find the utterances of a particular Member offensive or disorderly, that Member will be requested to rise in his or her place and withdraw the unparliamentary word or phrase unequivocally. The Member’s apology is accepted in good faith and the matter is then considered closed.185 However, if the Member refuses to obey the directive of the Speaker to retract his or her words, the Chair may refuse to recognize the Member until the words have been withdrawn,186 or may “name” the Member for disregarding the authority of the Chair and order the Member to withdraw from the Chamber for the remainder of the sitting.187
Repetition and Relevance in Debate
The rules of relevance and repetition188 are intertwined and mutually reinforcing. The requirement that speeches remain relevant to the question before the House flows from the latter’s right to reach decisions without undue obstruction and to exclude from debate any discussion not conducive to that end. The rule against repetition helps to ensure the expeditious conduct of debate by prohibiting the repetition of arguments already made. To neglect either rule would seriously impair the ability of the House to manage its time efficiently.
Notwithstanding their importance, these rules remain difficult to define and enforce not least because such enforcement must respect the freedom of speech enjoyed by all Members. The rule against repetition can be invoked by the Speaker to prevent the repetition of arguments already made during the debate by any Member.189 The rule of relevance enables the Chair to counter any tendency to stray from the question before the House or committee. It is not always possible to judge the relevance (or the repetitiveness) of a Member’s remarks until he or she has spoken at some length or even completed his or her remarks.190 The Speaker must exercise his or her discretion: if the rules are applied too strictly, they have the potential for severely curtailing debate; if they are neglected, the resultant loss of debating time may prevent other Members from participating in debate. Particular circumstances, the mood of the House and the relative importance of the matter under debate will influence the rigidity with which the Speaker interprets these rules.
When enforcing the rules against irrelevance and repetition, the Speaker can call a Member to order, and if necessary, warn the Member that he or she risks being directed to discontinue his or her speech. Such warnings are usually sufficient. However, should the Member persist, the Speaker can proceed to recognize another Member, or if no other Member wishes to speak, put the question.191 In the event that the Member continues to disregard the Speaker’s instruction or direction, the Speaker has the authority to “name” that Member.
It is not certain when the British House of Commons originally adopted the practice of restraining repetitive or irrelevant debate; however, it seems to have been well established by the end of the 16th century. A manual of procedure dating from the era of the Elizabethan Parliaments listed among the powers of the Speaker the right to call a Member to order when “any speak to a Bil[sic] and be out of the matter”.192 During the same period, Speaker Popham, upon his election to the Chair in 1580, requested that Members “speak to the matter … and not to spend too much time in unnecessary motions or superfluous argument”.193 The Journals for 1604 suggest that the rule of relevance was adopted in that year as an order of the House and one authority has cited it in this form: “That if any man speak impertinently, or beside the question in hand, it stands with the orders of the House for the Speaker to interrupt him, and to know the pleasure of the House, whether they will further hear him”.194 In addition to this rule, the House soon thereafter adopted another prohibiting repetition.195 Both rules proved difficult to enforce, particularly that on relevance which obliged the Speaker to obtain the support of the House in order to direct a Member to keep to the subject of debate. During the 18th century, interventions by Speakers were so rare that Members sometimes resented interruptions when they did take place.196
When in 1867 the Canadian House of Commons adopted its rules, no reference was made to repetition in debate and the rule on relevance was mentioned only in the context of a general order which enjoined Members not to “speak beside the question in debate”.197 Beyond advising the Member to speak to the subject, the Speaker depended almost entirely upon the support of the House and the goodwill of the Members to enforce the rule.
In a revision of the rules in 1910, the power of the Speaker was augmented. The Chair was empowered to direct a Member to discontinue his or her speech if the Chair deemed it either irrelevant or repetitious after having called the attention of the House to the matter.198 In moving the adoption of this rule, Prime Minister Wilfrid Laurier observed that it was “the English rule copied word for word”.199 This was equally true of the rule which dealt with relevance in a Committee of the Whole and which was adopted at the same time: “Speeches in Committee of the Whole must be strictly relevant to the item or clause under consideration”.200
When the rules were again revised in 1927, the powers of the Speaker were further enhanced to permit effective action in the event of refusals to accept direction from the Chair. A special committee on procedure recommended that the Speaker be authorized to “name” a recalcitrant Member or, if the incident took place in committee, that the Chairman be authorized to report the Member to the House. The recommendation was accepted by the House without amendment or debate and the powers of the Chair in this regard remain unchanged.201
Repetition is prohibited in order to safeguard the right of the House to arrive at a decision and to make efficient use of its time. Although the principle is clear and sensible, it has not always been easy to apply202 and the Speaker enjoys considerable discretion in this regard. The Chair can curtail prolonged debate by limiting Members’ speeches to points which have not already been made.203 The freedom of debate enjoyed by Members does not extend to the repetition of arguments that have already been heard.204 In the context of the legislative process, this restriction applies to Members’ remarks only within the same stage of debate on a bill. Arguments advanced at one stage may also legitimately be represented at another.
Finally, the rule against repetition has been used by Speakers in various other ways to assist the House in making efficient use of its time. Speakers have ruled against the tedious reading of letters even when they were used in support of an argument,205 the asking of a question during Question Period which was similar to another already asked that day,206 and the repeating of questions of privilege on the same subject matter.207
The Rule of Relevance
Although the House now has rules to limit the length of speeches, at one time there were few limits and debate often strayed beyond the subject in question. In 1882, J.G. Bourinot, then Clerk of the House, felt the need to add this comment to his overview of parliamentary practice:
A just regard to the privileges and dignity of Parliament demands that its time should not be wasted in idle and fruitless discussion; and consequently every member, who addresses the house, should endeavour to confine himself as closely as possible to the question under consideration.208
This advice still applies today as the business of government grows ever more complex and the time of the House is limited. It is often sufficient for the Speaker to remind a Member called to order of the proper subject matter of the debate and to indicate the manner in which the Member’s remarks were irrelevant.209 During the questions and comments period following most speeches, for example, a Member must address his or her remarks to the arguments expressed in the speech, or the Chair will invoke the rule of relevance.210 In doing so, Speakers tend to be mindful of the need for some leniency.211 At times they have allowed references to other matters in debate if they were made in passing and were not the principal theme of the speech.212
The rule of relevance applies not only to debate on a main motion but also to any proposed amendments to it.213 Arguments ruled irrelevant during debate on a main motion are similarly irrelevant if introduced as the substance of an amendment. Should an amendment be proposed to a motion, the rule of relevance requires that debate be limited to that amendment until it is disposed of by the House.214 Even if an amendment proposes to replace all the words in the main motion after the word “That” and to substitute an alternative proposition, debate is restricted to the main motion and the amendment; further propositions are irrelevant.215 Once an amendment is disposed of by the House, it then becomes possible to debate the main motion in its full scope or to consider another amendment.
The previous question is exceptional with respect to the rule of relevance. The motion “That this question be now put” does nothing to hinder debate on the original motion. On the contrary, Members who have already participated in the debate may speak to the motion again after the previous question has been moved.216 However, care must be taken to avoid repetition.
The relevance of debate to a motion before the House applies especially to the consideration of bills as they proceed through the several stages prior to their adoption. According to the practice which developed originally in the British House of Commons, “each stage is regarded as having its own peculiar function and to a certain extent its more or less limited range of debate”.217 These functions, in turn, provide both the Speaker and the House with guidelines by which to apply the rule of relevance. Thus, for example, the second reading stage of a bill is limited to debate on its principle, whereas debate at report stage treats only motions offered in amendment to a bill. Despite the several opportunities allowed to the House to discuss a bill, the scope of debate is understood to be different at each stage, although, in recent years, the Chair has been known to show considerable leeway at times.218
During debate on second reading, Members have frequently been tempted to delve into the clauses of a bill instead of confining themselves to consideration of the principle of the bill. Such interventions have been found in breach of the rule of relevance. Interruptions by the Speaker were made to discourage Members from discussing specific provisions of the bill rather than its principle.219 In one ruling the Speaker stated quite clearly that “on a motion for second reading it is out of order to discuss the clauses of the bill”.220 When the House is considering an amending bill, the rule requires that debate at second reading be limited to the principle of the amending bill and not to the subject matter of the Act which it proposes to amend.221
The referral of a bill to a committee opens the way for close examination of its contents clause by clause. Today, most bills are sent to standing committees for study but, in the past, the detailed consideration of bills more often took place in a Committee of the Whole and it was in this larger forum that the practice governing the scrutiny of bills developed. Pursuant to the Standing Orders, speeches made in a Committee of the Whole must be strictly relevant to the item or clause under consideration.222 Chairs have frequently cited this rule and called upon Members to observe it.223 The same practice applies in standing, special or legislative committees considering bills.
An important exception to the rule of relevance in committee is found in the wide-ranging debate permitted on Clause 1, or the clause following the short title. Although there is no explicit provision for this in the Standing Orders, this has been an accepted practice since at least the 1930s.224 Over the years, repetition of second reading debate and the anticipation of clause-by-clause debate were gradually excluded from the general debate on Clause 1,225 which is now limited to the contents of the bill.226 In the event that an amendment is proposed to Clause 1, discussion is confined to the amendment until it has been disposed of.227
According to Beauchesne, the report stage of a bill “is one of reconsideration of events which have taken place in committee. The consideration of a bill is now a more formal repetition of the committee stage with the applicable rules of debate which are proper when the Speaker is in the chair”.228 Report stage motions are amendments to clauses in a bill which seek to change, delete or restore those clauses. To avoid excessive repetition of debate, the Speaker invariably exercises the power to select and to combine motions in amendment.229 The Speaker can also constrain debate through the use of the relevance rule as applied to debate on clauses of a bill. Despite the similarities between debate at report stage and that at committee stage, there is no allowance for a wide-ranging discussion of a bill as occurs in committee during the study of Clause 1. Indeed, once the Order of the Day for the consideration of a bill at report stage is called, discussion is limited to “any amendment of which notice has been given”.230
Debate at third reading is intended to permit the House to review the legislative measure in its final form and is therefore strictly limited to the contents of the bill.231 If an amendment is moved, debate must be relevant to that amendment until the House disposes of it.232
Debates on the Address in Reply to the Speech from the Throne and the Budget
The traditions and practices of the House allow for the rule of relevance to be relaxed during debate on the motion for an Address in Reply to the Speech from the Throne. During the days allotted to the debate on this motion, Private Members have the opportunity “to bring forward topics of their own choosing”.233 Consequently, debate tends to be very wide-ranging and the Speaker usually makes no effort to apply the rule of relevance. This is not the case, however, when the House is debating the Budget. The remarks of Members must be relevant to the motion before the House. All the same, the terms of the motion (i.e., that this House approve in general the budgetary policy of the government) are sufficiently broad to permit Members great latitude in their remarks without violating the principle of the rule.234
The Sub judice Convention
The sub judice convention is first and foremost a voluntary exercise of restraint on the part of the House in which restrictions are placed on the freedom of Members to make reference in debate to matters which are sub judice, that is, awaiting judicial decisions. It is also understood that matters before the courts are also prohibited as subjects of motions, petitions or questions in the House. This restriction exists in order to protect an accused person or other party to a court action or judicial inquiry from any prejudicial effect of public discussion of the issue.235 The convention recognizes the courts, as opposed to the House, as the proper forum in which to decide individual cases. As Speaker Fraser noted, the convention maintains a “separation and mutual respect between legislative and judicial branches of government”.236 Thus, the constitutional independence of the judiciary is recognized. The interpretation of this convention is left to the Speaker since no rule exists to prevent Parliament from discussing a matter which is sub judice.237 While precedents exist to guide the Chair, no attempt has ever been made to codify the practice.238 However, as Speaker Sauvé explained, the sub judice convention has never stood in the way of the House considering a prima facie matter of privilege vital to the public interest or to the effective operation of the House and its Members.239
There are some situations in which the application of the sub judice convention is fairly straightforward. The convention has been applied consistently to motions, references in debates, questions and supplementary questions and in all matters relating to criminal cases.240
The convention does not apply to legislation or to the legislative process as the right of Parliament to legislate may not be limited.241 If the sub judice convention were to apply to bills, the whole legislative process could be stopped simply by the initiation of legal proceedings in any court in Canada.
Criminal and Civil Cases
No distinction has ever been made in Canada between criminal courts and civil courts for the purpose of applying the sub judice convention. It has also been applied with respect to certain tribunals other than courts of law. The convention exists to guarantee everyone a fair trial and to prevent any undue influence prejudicing a judicial decision or report of a tribunal of inquiry. In the view of the Special Committee on the Rights and Immunities of Members, “prejudice is most likely to occur in respect of criminal cases and civil cases of defamation where juries are involved”.242
Where criminal cases are concerned, precedents bar reference to such matters before judgment has been rendered and during any appeal. Members are expected to refrain from discussing matters that are before a criminal court not only in order to protect those persons who are undergoing trial and stand to be affected whatever its outcome, but also because the trial could be affected by debate in the House.243 It has been established that the convention ceases to apply, as far as criminal cases are concerned, when judgment has been rendered.244 The Speaker has confirmed that a matter becomes sub judice again if an appeal is entered following a judgment.245
The precedents are not as consistent where civil cases are concerned. The convention has been applied on some occasions246 and not on others.247 However, in 1976, the Speaker ruled that no restriction ought to exist on the right of any Member to put questions respecting any matter before the courts, particularly those relating to a civil matter, unless and until that matter is at least at trial.248 Although nothing resembling a settled practice has developed in relation to civil cases, the Chair has warned on various occasions of the need for caution in referring to matters pending judicial decisions whatever the nature of the court.249
Courts of Record and Commissions of Inquiry
From the precedents, it is clear that the application of the convention is limited to tribunals designated by statute as courts of record.250 A “court of record” is defined as follows: “1. A court that is required to keep a record of its proceedings. The court’s records are presumed accurate and cannot be collaterally impeached [and] … 2. A court that may fine and imprison people for contempt”.251 The sub judice convention does not apply, however, to matters referred to royal commissions or other commissions of inquiry, although the Chair has cautioned against making reference to the proceedings, evidence, or findings of a royal commission before it has made its report.252
Role of the Speaker
Since the sub judice convention is not codified and is voluntary, the jurisdiction of the Speaker in such matters is somewhat difficult to outline. The Speaker’s discretionary authority over matters sub judice derives from his or her role as guardian of free speech in the House. The Chair has the duty to balance the rights of the House with the rights and interests of the ordinary citizen undergoing trial. Indeed, the Speaker intervenes in exceptional cases only when it appears likely that to do otherwise would be harmful to specific individuals. The problem facing a Speaker is that determining when a comment will have a tendency to influence is speculative—it cannot be done until after the remarks have been made.
In its 1977 inquiry, the Special Committee on the Rights and Immunities of Members recommended that, when there is doubt in the mind of the Chair, a presumption should exist in favour of allowing debate and against the application of the convention.253 The Committee concluded that, while there can be no substitute for the discretion of the Chair, all Members of the House should share in the responsibility of exercising restraint when it seems called for.254 A Member who feels that there could be a risk of causing prejudice in referring to a particular case or inquiry should refrain from raising the matter. Furthermore, a Member who calls for the suppression of discussion of a matter on grounds of sub judice should be obliged to demonstrate to the satisfaction of the Chair that he or she has reasonable grounds for fearing that prejudice might result.255
It was the view of the Committee that the responsibility of the Chair, particularly during Question Period, should be minimal in regard to the sub judice convention, and that the responsibility should principally rest upon the Member who asks the question and the Minister to whom it is addressed. Should a question to a Minister touch upon a matter sub judice, it is likely that the Minister involved would have more information covering the matter than the Speaker, and the Minister might be better able to judge whether answering the question might cause prejudice. In such a situation, the Minister could refuse to answer the question on those grounds, bearing in mind that refusal to answer a question is his or her prerogative. From the precedents, this appears to be the approach the Chair has taken.256 The Speaker has interrupted Members only if he or she has felt the sub judice convention was being breached.257
The Chair may occasionally grant leave to a Member to explain a matter of a personal nature although there is no question before the House. This is commonly referred to by Members as “a point of personal privilege” and is an indulgence granted by the Chair. This is entirely distinct from a question of privilege and, as one Speaker noted, “There is no legal authority, procedural or otherwise, historic or precedential, that allows this”.258 Consequently, such occasions are not meant to be used for general debate and Members have been cautioned to confine their remarks to the point they wish to make.259 When granted, they have generally been used by Members to announce a resignation,260 or to explain changes in party affiliation, matters affecting them which have occurred outside the Chamber, or misinterpreted statements.261