During debate, Members do not refer to one another
by their names[142] but rather by title, position or constituency name in order to
guard against the tendency to personalize debate.[143] A
Minister is referred to by the portfolio he or she holds.[144]
The two main party leaders are generally 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.[145] 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 once noted, a Member “cannot
do indirectly what cannot be done directly”.[146]
Allusions to the presence or absence of a
Member or Minister in the Chamber are unacceptable.[147]
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”.[148]
Remarks directed specifically at another
Member which question that Member’s integrity, honesty or character are not in
order.[149] A Member will be requested to withdraw offensive remarks,
allegations, or accusations of impropriety directed towards another Member.[150] The Speaker has no authority to rule on statements made outside the
House by one Member against another.[151]
Disrespectful reflections on Parliament as
a whole, or on the House and the Senate individually are not permitted.[152] 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”.[153]
References to Senate debates and proceedings are discouraged[154] and it is out of order to question a Senator’s integrity, honesty
or character.[155] 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”.[156]
Reflections must not be cast in debate on
the conduct of the Speaker or other Presiding Officers.[157]
It is unacceptable to question the integrity and impartiality of a Presiding
Officer and if such comments are made, the Speaker will interrupt the Member
and may request that the remarks be withdrawn.[158]
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.[159] Reflections on the character or actions of the Speaker or other
Presiding Officers have been ruled to be breaches of privilege.[160]
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).[161] In the same way, any reference to these persons which appears
intended to influence the work of the House is also prohibited.[162]
Attacks against and censures of judges and
courts by Members in debate have always been considered unparliamentary and,
consequently, treated as breaches of order.[163]
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”.[164] 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.[165]
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.[166] 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 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.[167]
In the past, reference 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 a debate that had concluded,
unless the remarks were relevant to the matter under discussion.[168] 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;[169] the rule does not apply to speeches on different stages of a bill.[170] 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.[171]
Members may not speak against or reflect
upon any decision of the House.[172] 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.[173] The Chair has been quick to call attention to reflections on votes.[174] 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.[175]
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.[176] A direct charge or accusation against a Member may be made only by
way of a substantive motion for which notice is required.[177]
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,[178]
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.[179] Normally, the matter is dealt with at the conclusion of Question
Period.[180] 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.[181]
If the Speaker did not hear the word(s) 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.[182] 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.[183]
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 importantly, whether or not the remarks created disorder
in the Chamber.[184] Thus, language deemed unparliamentary one day may not necessarily
be deemed unparliamentary the following 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.[185] 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.[186]
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 to withdraw the unparliamentary word or phrase
unequivocally. The Member’s apology is accepted in good faith and the matter is
then considered closed.[187] However, if the Member persists in refusing 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[188]
or may “name” the Member for disregarding the authority of the Chair and order
him or her to withdraw from the Chamber for the remainder of the sitting.[189]
The rules of relevance and repetition[190] 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 debate 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.[191]
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 repetition) of a Member’s remarks until he or she has
spoken at some length or even completed his or her remarks.[192] In practice, the Speaker allows some latitude—if the rules are
applied too rigidly, 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
strictness 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, to put the question. In the event that the Member
should persist in disregarding the Speaker’s instruction or direction, the
Speaker has the authority to “name” that Member.[193]
It is not certain when the British House of
Commons originally adopted the practice of restraining debate that was either
repetitious or irrelevant. However, it seems to have been well established by
the end of the sixteenth 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”.[194] 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”.[195] 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”.[196] In addition to this rule, the House soon thereafter adopted another
prohibiting repetition.[197] 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 eighteenth
century, interventions by Speakers were so rare that Members sometimes resented
interruptions when they did take place.[198]
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 of
debate which enjoined Members not to “speak beside the question in debate”.[199] 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.[200] In moving the adoption of this rule, Prime Minister Wilfrid Laurier
observed that it was “the English rule copied word for word”.[201] This was hardly less 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”.[202]
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 in committee, to permit the Chairman 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.[203]
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 apply[204] 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.[205] In the context of the legislative process, this latter restriction
applies to the Members’ remarks only within the same stage of debate on a bill.
Arguments advanced at one stage may legitimately be represented at another. The
purpose of this practice is to safeguard the right of the House to reach a
decision. The freedom of debate enjoyed by Members does not extend to the
repetition of arguments that have already been heard.[206]
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;[207] the asking of a question during Question Period which was similar
to another already asked that day;[208] and the repeating of questions of privilege on the same subject
matter.[209]
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.[210]
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.[211]
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.[212]
In doing so, Speakers tend to be mindful of the need for some leniency.[213] They have, at times, allowed references to other matters in debate,
if they were made in passing and were not the principal theme of the speech.[214]
The rule of relevance applies not only to
debate on a main motion but also to any proposed amendments to it.[215] 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.[216] Arguments ruled irrelevant during debate on a main motion are
similarly irrelevant if introduced as the substance of an amendment. Even if an
amendment proposes to replace all the words in the main motion after “that” and
to substitute an alternative proposition, debate is restricted to the main
motion and the amendment; further propositions are irrelevant.[217] 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 has a character that
is exceptional with respect to the rule of relevance. “That the 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 on the motion
again, after the previous question has been moved.[218]
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”.[219] 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.
During debate on second reading, Members
are frequently tempted to delve into the clauses of a bill instead of confining
themselves to consideration of the principle of the bill. Such interventions
are in breach of the rule of relevance. Interruptions by the Speaker are
sometimes required to discourage Members from discussing specific provisions of
the bill rather than its principle.[220] 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”.[221] 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.[222]
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.[223] Chairs have frequently cited this rule and called upon Members to
observe it.[224] 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, it has been an accepted practice
since at least the 1930s.[225] 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,[226] which is now limited to the contents of the bill.[227] In the event that an amendment is proposed to Clause 1, discussion
is confined to the amendment until it has been disposed of.[228]
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”.[229] Report stage motions are amendments to clauses in a bill which seek
to change, to delete or restore those clauses. To avoid excessive repetition of
debate, the Speaker has the power to select and to combine motions in
amendment.[230] The Speaker can also control 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 to that at committee stage, there
is no allowance for a wide‑ranging discussion of a bill as occurs in
committee during 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”.[231]
Debate on 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.[232]
If an amendment is moved, debate must be relevant to that amendment until the
House disposes of it.[233]
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, Members have the opportunity “to bring forward
topics of their own choosing”.[234] 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 approves 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.[235]
During debate, restrictions are placed on
the freedom of Members of Parliament to make reference to matters awaiting
judicial decisions in order to avoid possible prejudice to the participants in
the courts. This self-restraint recognizes the courts, as opposed to the House,
as the proper forum in which to decide individual cases. Matters before the
courts are also prohibited as subjects of debate, motions or questions in the
House. While precedents exist for the guidance of the Chair, no attempt has
ever been made to codify the practice known as the “sub judice
convention”.[236] 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, that is, “under the consideration of a judge or court”.[237]
The sub judice convention is first
and foremost a voluntary exercise of restraint on the part of the House 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.[238] Secondly, the convention also exists, as Speaker Fraser noted, “to
maintain a separation and mutual respect between legislative and judicial
branches of government”.[239] Thus, the constitutional independence of the judiciary is
recognized. 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.[240]
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[241] relating to criminal cases.
The convention does not apply to
legislation or to the legislative process as the right of Parliament to
legislate may not be limited.[242] 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.
No distinction has ever been made in Canada between criminal courts and civil courts for the purpose of applying the sub
judice convention, and it has also had application 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 a
report of a tribunal of inquiry. Indeed, 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”.[243]
Where criminal cases are concerned, the
precedents are consistent in barring reference to such matters before judgement
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.[244] It has been established that the convention would cease to apply,
as far as criminal cases are concerned, when judgement has been rendered.[245] The Speaker has confirmed that a matter becomes sub judice
again if an appeal is entered following a judgement.[246]
The precedents are not as consistent where
civil cases are concerned. The convention has been applied on some occasions[247] and not on others.[248] 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.[249] 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.[250]
From the precedents, it is clear that the
application of the convention is limited to tribunals designated by statute as
courts of record.[251] 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”.[252] The sub judice convention does not apply, however, to
matters referred to royal commissions, although the Chair has cautioned against
making reference to the proceedings, evidence, or findings of a royal
commission before it has made its report.[253]
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 where 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 business—it cannot be done until after the remarks have been made.
In its 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.[254]
The Committee concluded that while there can be no substitute for the discretion
of the Chair, in the last resort all Members of the House should share in the
responsibility of exercising restraint when it seems called for.[255] 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.[256]
It was also 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 will
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 these 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.[257] The Speaker has interrupted only if he or she has felt the sub
judice convention was being breached.[258]
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. There is no
connection to a question of privilege, and one Speaker noted, “There is no
legal authority, procedural or otherwise, historic or precedential, that allows
this”.[259]
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.[260]
When granted, they have been used by Members notably to announce a resignation,[261]
or to explain changes in party affiliation, matters affecting them which have
occurred outside the Chamber or misinterpreted statements.[262]
[142]
There appears, however, to be no procedural impediment to Members referring to
themselves by name. See, for example, Debates, October 23, 2006, pp.
4131-2.
[143]Beauchesne, 4th ed., p. 126. See, for example, Debates,
October 30, 1997, p. 1388; April 2, 1998,
p. 5685; February 26, 2007, p. 7310; March 1, 2007, p. 7494.
[144]Beauchesne, 4th ed., p. 126. See, for example, Debates,
October 6, 1997, p. 530; September 16, 2003, pp. 7446-7.
[146]Debates, November 29, 1985, p. 8991. See, for example, Debates,
October 26, 1990, pp. 14767‑8; March 17, 1998,
p. 4960; March 1, 1999, p. 12262; October 17, 2006,
pp. 3885‑6; October 19, 2006, p. 3980.
[147]
See, for example, Debates, June 21, 1994, p. 5674;
December 5, 1995, pp. 17207‑8; February 6, 1998,
p. 3479; February 16, 1999, p. 11941; April 22, 1999,
p. 14214; May 5, 1999, p. 14715; November 8, 2006, pp.
4904-5; November 21, 2006, p. 5151.
[148]Debates, April 3, 1987, p. 4875. Speakers have, however,
declined to extend the prohibition to references to the absence of Members from
committee meetings. See, for example, Debates, February 7, 2003,
p. 3308.
[149]
Standing Order 18. See, for example, Debates, September 29, 2003, p.
7942; May 4, 2006, p. 958.
[150]Bourinot, 4th ed., p. 361; Beauchesne, 4th ed.,
p. 115. See, for example, Debates, September 29, 1994,
p. 6311; June 9, 1995, p. 13517; October 29, 1996,
pp. 5868‑9, 5875; October 6, 1998, p. 8832; April 6, 2005,
p. 4750; April 25, 2006, p. 521; May 11, 2006, p. 1260. The use
of unparliamentary language is discussed in detail later in the chapter.
[151]
See Debates, February 11, 1993, pp. 15792‑3; January 29,
2002, pp. 8444‑5.
[152]
Standing Order 18. See also Bourinot, 4th ed., pp. 360‑1.
See, for example, Debates, June 8, 1990, pp. 12522‑3,
12533‑4; June 13, 1995, pp. 13734‑5; June 14,
1995, p. 13872; September 24, 1998, p. 8354; February 5,
1999, pp. 11515‑6; June 22, 2005, p. 7622.
[153]
See, for example, Debates, January 21, 1994, p. 170;
June 8, 1994, pp. 5015‑7; May 16, 2000, p. 6886.
[154]Bourinot, 4th ed., p. 357. See, for example, Debates,
December 5, 1985, pp. 9204‑5. It is acceptable to refer to the
official printed records of the Senate even though they may not have been formally
asked for and communicated to the House.
[155]
See, for example, Debates, March 12, 1993, p. 16913;
June 23, 2005, p. 7696; May 16, 2007, p. 9563.
[156]
May, T.E., Erskine May’s Treatise on The Law, Privileges, Proceedings and
Usage of Parliament, 22nd ed., edited by Sir D. Limon and
W.R. McKay, London: Butterworths, 1997, p. 381.
[158]
See, for example, Debates, January 17, 1991, pp. 17294‑5,
17304‑5; May 25, 1993, p. 19709; May 17, 2006, p. 1544.
[159]
See, for example, Debates, June 1, 1956, pp. 4537‑9; Journals,
June 4, 1956, pp. 692‑3; June 8, 1956, pp. 725‑6;
Debates, March 13, 1964, p. 916; Journals,
March 18, 1964, pp. 103‑4; March 19, 1964, pp. 106‑7;
Debates, March 9, 1993, p. 16685; March 13, 2000,
p. 4397; March 16, 2000, p. 4739. For further information on motions
of censure against the Speaker, see Chapter 7, “The Speaker and Other
Presiding Officers of the House”, and Mercer, T., “Challenging the Chair”,
Canadian Parliamentary Review, Vol. 29, No. 2, Summer 2006,
pp. 21‑5.
[160]
In 1981, the Leader of the Opposition made remarks which constituted an attack
on the authority and impartiality of the Speaker. The following day, a Minister
raised a question of privilege on the matter. The Leader of the Opposition
subsequently withdrew his remarks and the matter was declared closed (Debates,
January 21, 1981, p. 6410; January 22, 1981, pp. 6455‑7).
In 1993, a prima facie breach of privilege was found when a Member
refused to withdraw disparaging remarks about a Chair Occupant (Journals,
March 23, 1993, p. 2688, Debates, pp. 17403‑5). Two
days later, the Member apologized and the matter was declared closed (Debates,
March 25, 1993, p. 17537). See also Debates, May 14,
1996, p. 2721.
[161]
Standing Order 18. For examples of disrespectful references to the Governor
General, see Debates, May 23, 1958, p. 406; March 12,
1959, p. 1869; September 27, 1990, pp. 13509, 13513;
February 24, 1994, pp. 1799‑1800. Discourteous references to
Lieutenant‑Governors have also been ruled out of order. See, for example,
Debates, June 20, 1958, p. 1462; March 12, 1959,
p. 1870.
[162]Bourinot, 4th ed., pp. 338‑9. See, for example, Debates,
March 9, 1910, cols. 5100‑1. May notes: “Her Majesty
cannot be supposed to have a private opinion, apart from that of her responsible
advisers; and any attempt to use her name in debate to influence the judgement
of Parliament is immediately checked and censured. This rule also extends to
other members of the royal family, but it is not strictly applied in cases
where one of its members has made a public statement on a matter of current
interest so long as comment is made in appropriate terms” (May, 23rd
ed., p. 436).
[163]Beauchesne, 4th ed., pp. 128‑9; 6th ed.,
pp. 150‑1. See, for example, Debates, May 16, 1986,
p. 13353; September 19, 1991, p. 2401; November 28, 1996,
p. 6854; June 8, 1998, pp. 7680, 7691; June 9, 1998,
p. 7835. However, Members are not prohibited from giving notice of a
substantive motion concerning the conduct of a judge (Debates,
February 18, 1926, p. 1106).
[164]Debates, April 1, 1998, pp. 5653‑4. See also Debates,
April 2, 1998, p. 5743.
[165]
See, for example, Debates, December 1, 1986, p. 1636;
June 4, 1998, p. 7575; October 18, 1999, p. 256.
[166]
See Speaker Milliken’s remarks, Debates, April 2, 2003, p. 5040, to the
effect that this convention applies only to statements which might potentially
damage the reputation of a member of the public. In another ruling, Mr.
Milliken declined to invoke this prohibition with regard to statements made in
a public forum (Debates, May 11, 2005, pp. 5933-4).
[167]
See, for example, Debates, May 26, 1987, pp. 6375‑6;
November 28, 1991, pp. 5509‑10; April 18, 2005, pp.
5213-4.
[168]Bourinot, 4th ed., p. 357. It is also irregular to refer to
discussions held in a Committee of the Whole.
[169]
See, for example, Debates, December 4, 1984, p. 896. In
practice, this rule is often disregarded by the Chair.
[174]
See, for example, Journals, June 1, 1955, pp. 654‑7, in
particular p. 656; Debates, May 19, 1960, p. 4025;
October 20, 1970, p. 402; May 11, 1983, pp. 25363‑6;
November 3, 1983, p. 28661; May 4, 1993, p. 18921;
May 14, 1993, pp. 19470‑1; April 6, 1995,
pp. 11608, 11612; September 24, 1996, p. 4656; May 7, 1998,
p. 6690; May 11, 1999, p. 15001; September 16, 2003,
p. 7439.
[175]
Standing Order 18. For further information, see Chapter 12, “The Process
of Debate”.
[176]
Standing Order 18. See, for example, Debates, February 25, 1998,
pp. 4401‑2; October 28, 1998, p. 9512; May 3, 2006,
p. 848. This includes any allegation that a Member has lied or misled the
House. See, for example, Debates, November 1, 2006, pp. 4533, 4538;
March 28, 2007, pp. 8035-6.
[177]
See Speaker Michener's ruling, Journals, June 19, 1959,
pp. 581‑6 and Speaker Fraser’s ruling, Debates,
December 11, 1991, pp. 6141‑2.
[179]
See, for example, Debates, March 24, 1993, p. 17482;
October 22, 1997, p. 964; October 18, 2005, p. 8678;
October 19, 2006, pp. 4008, 4013.
[180]
See, for example, Debates, October 22, 1997, pp. 971‑2;
April 22, 1999, pp. 14225, 14229; April 6, 2005, pp. 4747, 4750.
[181]
See, for example, Debates, June 13, 1986, pp. 14370‑2;
March 5, 1987, p. 3882; December 9, 1997,
p. 3018; March 27, 2007, pp. 7985-7.
[182]
See, for example, Debates, February 5, 1997, pp. 7716‑7;
February 17, 1999, pp. 12000‑1;
March 22, 2007, pp. 7794-5;
March 4, 2008, p. 3625.
[183]
See Debates, December 12, 1991, pp. 6218‑9; October 30,
2006, pp. 4414-5. See also Debates, February 10, 1998,
pp. 3714‑5, when a Member accused another Member of an obscene
gesture. The Speaker indicated that it would be difficult to check because the
gesture would not be recorded and he did not see it. Speakers have, on
occasion, found that there was sufficient corroborating evidence for alleged
unparliamentary remarks neither heard by the Chair nor recorded in the Debates
(Debates, November 28, 2001, p. 7614).
[184]
See, for example, Debates, June 8, 1998, p. 7707;
October 7, 1998, p. 8885; November 5, 1998,
pp. 9917‑8; March 18, 1999, pp. 13092‑3; October 29,
2004, p. 958; November 4, 2004, p. 1189; October 31, 2005,
p. 9255. On one occasion, the Speaker dismissed a point of order alleging
unparliamentary language upon learning that what had given offence was the
inaccurate English simultaneous interpretation (“Italian salute”) of a French
expression (“bras d’honneur”) (Debates, June 14, 2006, pp. 2372-3).
[185]
Lists of terms ruled unparliamentary have been included in the index to the Debates,
in Bourinot (4th ed., pp. 361‑4) and in Beauchesne
(6th ed., pp. 142‑50). In 1991, a government motion calling upon Members to refrain from the use of offensive and abusive
language and for vigorous enforcement of Standing Order 18 was debated on three
occasions but never came to a vote (Journals, October 23, 1991, pp.
521-2; October 25, 1991, pp. 535-6; November 21, 1991, pp. 703-4).
Neither did the work of an unofficial “Special
Advisory Committee to the Speaker on Unparliamentary Language and the Speaker’s
Authority to deal with Breaches of Decorum and Behaviour”, convened by Speaker John Fraser in 1992 and chaired by the Deputy
Speaker and Chairman of Committees of the Whole, Andrée Champagne,
lead to significant change in this regard. The Committee’s report (June 22,
1992), which took the form of draft amendments to the Standing Orders, was
never presented to the House, nor were its recommendations ever implemented or
formally debated. During the Thirty-Ninth Parliament, the Standing Committee on
Procedure and House Affairs, in its Thirty-Seventh Report, presented to the
House on March 1, 2007 (Journals, p. 1092), declined to
recommend changes to the Standing Orders to strengthen the disciplinary powers
of the Chair, and called upon all parties to support a vigorous exercise of its
existing powers.
[186]
See, for example, Debates, November 4, 1987, p. 10741;
November 18, 1987, pp. 10927‑8; December 14, 1987,
pp. 11761‑2; October 26, 1998, p. 9379; February 18,
1999, p. 12094; May 6, 2004, p. 2847.
[187]
See, for example, Debates, September 25, 1998, p. 8401;
October 30, 1998, p. 9641; February 16, 1999, pp. 11972‑3;
March 25, 1999, pp. 13483‑4; October 28, 2004, p. 898;
May 5, 2005, p. 5722; April 25, 2006, p. 521.
[188]
On one occasion, when Jim Fulton (Skeena) refused to retract his remarks, Speaker
Fraser chose not to recognize the Member until a withdrawal was made three
weeks later (Debates, October 29, 1987, pp. 10542‑3;
October 30, 1987, pp. 10583‑4; November 18, 1987,
pp. 10927‑8). See also Debates, November 27, 2002, p. 1949;
March 28, 2007, p. 8036.
[189]
See, for example, Debates, February 12, 1997, pp. 8016‑7;
October 1, 1997, pp. 332, 334‑5; October 2, 1997,
p. 367; December 1, 1998, pp. 10726‑7, 10730‑1;
December 6, 2002, p. 2380. For further information, see the section in
this chapter entitled “Naming”.
[191]Dawson (Dawson, W.F., Procedure in the Canadian House of Commons,
Toronto: University of Toronto Press, 1962, p. 108) highlighted the
difficulty in enforcing this rule by noting that, “the whole system of procedure
is based on an assumption of repetition” and referred to three readings given
to a bill.
[192]Bourinot, South Hackensack, New Jersey: Rothman Reprints Inc.,
1971 (reprint of 1st ed., 1884), p. 349. See also the Chair’s
remarks, Debates, June 17, 1992, p. 12297; June 23, 1992,
p. 12641; February 1, 2002, p. 8584.
[193]
Standing Order 11(2). For cases of a Speaker directing a Member to discontinue
his or her speech, see Debates, May 26, 1947, pp. 3450‑1;
August 25, 1958, p. 4073. If a Member persists in breaching the
repetition or relevance rule in a Committee of the Whole, he or she is reported
to the House by the Chair if the Committee so directs. For further information,
see Chapter 19, “Committees of the Whole House”.
[194]
Snow, V.F., Parliament in Elizabethan England: John Hooker’s Order
and Usage, New Haven and London: Yale University Press, 1977, p. 169.
[197]
The entry in the Journals reads: “… if any superfluous motion, or
tedious speech be offered in the House, the party is to be directed and ordered
by Mr. Speaker”. See Hatsell, Vol. II, p. 230.
[198]
Even so formidable a character as Speaker Arthur Onslow could not manage to
enforce the rule on his own authority (Thomas, P.D.G., The House of Commons
in the Eighteenth Century, Oxford: Clarendon Press, 1971,
pp. 217-8).
[199]Rules, Orders and Forms of Proceedings of the House of Commons of Canada, 1876, Rule No. 13.
[200]Rules of the House of Commons of Canada, 1910, Rule No. 19.
[204]
In more blatant cases, the Speaker has been able to specify the date and cite
the page on which the same speech had previously been delivered. In one instance,
the Speaker was able to predict that the Member was about to begin paragraph
six of his speech and, in another, the Speaker cited five instances in which
the same appeal had previously been made (Debates, June 9, 1955,
p. 4610; April 19, 1956, p. 3073). On another occasion, once a
Member had stated that he was going to repeat some of the material he had
previously used in the same debate, the Speaker would not allow him to proceed(Debates, February 17, 1956, p. 1290). See also
Speaker Beaudoin's remarks (Debates, May 24, 1955, p. 4065).
[205]
See, for example, Debates, June 9, 1955, p. 4609. On one
occasion, a Member was chided because his remarks were “not much more than a
repetition of what has been said by others who preceded him”. Accordingly, the Member
was directed to shorten his remarks so that the House could “get down to the
work properly before [it]” (Debates, August 31, 1917,
p. 5237).
[207]
See, for example, Debates, April 19, 1922, p. 944.
[208]
See, for example, Debates, November 21, 1977, p. 1063. In
1986, Speaker Bosley established that since time is scarce during Question
Period, Members should avoid merely repeating questions that have already been
asked, although Members may ask other questions on the same issue (Debates,
February 24, 1986, p. 10879).
[209]
See, for example, Debates, December 9, 1998, pp. 11120-1.
[211]
See, for example, Debates, November 5, 1990, pp. 15159‑60;
February 4, 1992, p. 6343; April 28, 1999, p. 14450;
April 29, 1999, pp. 14492, 14497; June 13, 2005, p. 6989;
October 16, 2006, p. 3830.
[212]
See, for example, Debates, February 6, 1987, pp. 3195‑6,
where the Chair ruled the remarks out of order and recognized another Member.
See also Debates, June 7, 1994, p. 4930;
June 7, 2006, p. 2085.
[213]
See, for example, Debates, February 8, 1993, pp. 15520, 15523;
November 2, 1999, p. 971; October 16, 2006, p. 3830.
[214]
See, for example, Debates, April 9, 1919, p. 1330; May 4,
1920, p. 1954; March 22, 1921, p. 1193; May 10, 2007, p.
9344; November 23, 2007, pp. 1303-4. One Speaker remarked that a matter raised
outside the question in a debate would more properly “form by itself a subject
of a special substantive motion” (Debates, March 27, 1923,
p. 1553).
[215]May, 23rd ed., p. 400: “Stated generally, no matter ought
to be raised in debate on a question which would be irrelevant if moved as an
amendment, and no amendment should be used for importing arguments which would
be irrelevant to the main question”.
[216]
See, for example, Debates, June 2, 1914, p. 4647.
[217]May, 23rd ed., p. 400: “[such an amendment] … by concentrating
debate on the main question and the amendment as alternative propositions, does
tend to exclude consideration of other [otherwise] relevant alternatives”.
[218]
For further information on the previous question, see Chapter 12, “The
Process of Debate”, and Chapter 14, “The Curtailment of Debate”.
[219]
May, T.E., Erskine May’s Treatise on The Law, Privileges, Proceedings and
Usage of Parliament, 20th ed., edited by Sir C. Gordon, London: Butterworths, 1983, p. 527.
[220]
See, for example, Debates, April 2, 1913, col. 7014;
March 25, 1920, pp. 734, 750‑1; May 26, 1978,
p. 5795.
[221]Debates, February 16, 1979, p. 3321. See also Debates,
October 28, 1991, p. 4085.
[222]Beauchesne, 6th ed., pp. 199‑200. This is a position
which has been maintained by the Speaker on several occasions (Journals,
November 14, 1949, pp. 237‑8; Debates,
May 6, 1959, p. 3402; Journals, October 15, 1962,
pp. 76‑7).
[223]
Standing Order 101(2). For further information, see Chapter 19,
“Committees of the Whole House”.
[224]Debates, November 30, 1977, pp. 1418‑20;
November 30, 1978, pp. 1657, 1665‑6; December 10, 1979,
p. 2213; December 11, 1979, pp. 2239, 2244;
September 30, 1991, pp. 2937, 2979.
[225]
It is not exactly clear when this practice started; however, several Members
claim that it was a custom which had grown during the years prior to the Second
World War (Debates, June 6, 1947, p. 3878; June 30,
1947, p. 4845; July 14, 1947, p. 5570).
[232]Beauchesne, 6th ed., p. 214; May, 23rd ed.,
p. 628.
[233]
On one occasion, the Speaker corrected a Member who had assumed that he could
talk on the amendment as if it were the third reading motion: “My ruling
is that a member should only address himself to the last question submitted to
the House … the fact that a member has not spoken to the third reading of the
Bill is no justification for his travelling over the same ground on this
question (the amendment) that he would have covered if he had spoken to the
third reading of the Bill” (Debates, June 2, 1914, p. 4647).
[236]
On December 13, 1976, the House appointed a special committee “to review
the rights and immunities of Members of the House of Commons, to examine the
procedures by which such matters are dealt with by the House, and to report on
any changes it may be desirable to make” (Journals, p. 230). The
Committee held three meetings during which it studied how the rights and
immunities of Members are affected by the sub judice convention. The
First Report of the Special Committee on the Rights and Immunities of Members,
presented to the House on April 29, 1977 (Journals,
pp. 720‑9) but not concurred in, remains the definitive study of the
sub judice convention in Canada and is still used today by the Speaker
when dealing with such matters arising in the House.
[237]
Speakers have, however, discouraged all comments on matters sub judice
rather than to allow Members to test the limits of the convention and the
Speaker’s discretion (Debates, June 13, 2003,
pp. 7280-1).
[238]
Laundy, P., “The Sub Judice Convention in the Canadian House of
Commons”, The Parliamentarian, Vol. 57, No. 3, July 1976,
pp. 211‑4.
[244]
See Speaker Fraser's rulings, Debates, June 1, 1989, p. 2419;
November 7, 1989, p. 5655; and Deputy Speaker Milliken's ruling, Debates,
March 16, 1999, p. 12911.
[245]See Speaker Lemieux’s ruling, Debates, February 10, 1928,
p. 366.
[246]See Speaker Lamoureux’s ruling, Debates, May 2, 1966,
pp. 4583‑4. In 1995, a Member rose on a point of order to contend
that a Minister had contravened the convention during Question Period by
commenting on a case under appeal in the Alberta courts. The Minister
maintained that there was a difference between commenting on the facts of a
case before the courts and stating the government’s opinion on a ruling
rendered by the courts. In his response to the point of order, Speaker Parent
ruled that he could not conclude that the Minister had contravened the
convention by stating that the government disagreed with the ruling and planned
to challenge the decision (Debates, April 6, 1995, pp. 11618‑9).
[247]
See, for example, Debates, June 7, 1938, p. 3625.
[248]
See, for example, Debates, May 22, 1973, pp. 3990‑1;
July 9, 1973, pp. 5402‑3.
[249]See Speaker Jerome’s ruling, Debates, February 11, 1976,
p. 10844. This view was reiterated in a ruling given in 1987, although
Speaker Fraser cautioned that a contrary ruling could be made if the Chair felt
the question was about to prejudice the rights of either litigant (Debates,
December 7, 1987, p. 11542). In a ruling delivered on April 20, 2005,
Speaker Milliken declined to apply the sub judice convention to
references to media reports that a Member not charged with any offense was “under
investigation” by the police, while at the same time urging Members to refrain
from such references out of respect for their colleagues (Debates, pp.
5334-5).
[250]
See, for example, Debates, April 6, 1995, pp. 11618‑9;
March 16, 1999, p. 12911; May 13, 2004, pp. 3136-7, 3162.
[251]
See Speakers’ rulings, Debates, March 5, 1947, pp. 1051‑2;
June 12, 1951, p. 3975; November 2, 1951, p. 662. In a 1933
incident, a Member attempted to debate charges brought against a county court
judge whose conduct had been referred to a commission of inquiry. Speaker Black
did not allow the discussion, even though the commission was not defined as a
court of record (Debates, March 30, 1933, pp. 3558‑9).
[252]
Black, H.C., Black’s Law Dictionary, 8th ed., edited by B.A.
Garner, St. Paul, Minnesota: Thomson West, 2004, p. 380.
[253]Debates, March 21, 1950, p. 949; October 17, 1957,
p. 119; May 2, 1966, pp. 4589‑90; Journals,
November 9, 1978, p. 128. The Speaker noted that “the body carrying
out [the inquiry] is an investigatory body and not a judicial body coming to
decision. … no decision of that body could in any way be prejudiced, surely, by
a debate or discussion here” (Debates, October 31, 1977,
p. 433). Investigations conducted by the Ethics Commissioner (after 2006,
the “Conflict of Interest and Ethics Commissioner”) of possible breaches of the
“Conflict of Interest Code for Members of the House
of Commons” have been treated by Speakers as if subject to the sub
judice convention. See, for example, Debates, June 7, 2005, p. 6738.
[254]Journals, April 29, 1977, p. 728. For an example of an
instance in which the Speaker has applied this principle, see Debates,
June 8, 1987, pp. 6817‑20 (opposition motion on a supply day).
[256]
See Speaker Bosley’s ruling, Debates, January 27, 1986,
p. 10194.
[257]
See, for example, Debates, February 14, 1986, pp. 10828‑9;
December 18, 1990, pp. 16901, 16905‑6; October 11, 1991,
p. 3643; December 4, 1996, p. 7087.
[258]
See, for example, Debates, November 7, 1989, pp. 5654‑6;
June 12, 1996, p. 3711; October 20, 1997, pp. 829‑30;
February 13, 1998, p. 3854. On occasion, such interruptions have been
more admonitory than declarative. See, for example, Debates,
May 13, 2004, p. 3136.
[260]
In 1996, Speaker Parent advised the House that Jean‑Marc Jacob (Charlesbourg) would be rising to make a solemn declaration to the House. The Speaker
cautioned Members that the statement was not to incite debate. The Speaker
subsequently interrupted Mr. Jacob and ruled that “the words being used [in the
statement] tend more toward a debate than a solemn declaration”. The Member was
not allowed to continue (Debates, June 18, 1996, p. 4027).
[261]
See, for example, Debates, March 15, 1984, pp. 2138‑9;
May 12, 1986, p. 13149; February 3, 1988, p. 12581;
September 24, 1990, p. 13215; October 11, 2002, p. 632.
[262]
See, for example, Debates, April 9, 1991, pp. 19231‑2;
November 26, 1992, pp. 14113‑5; January 24, 1994,
p. 197; March 20, 2001, pp. 1869-70.
