Rules that allow MPs and senators to say what they want with impunity are, in some cases, being abused, and may be a hindrance to making Parliament more transparent, a new report says.
The report from a Senate committee recommends several changes to the rules around parliamentary privilege, a centuries-old right designed to uphold free speech in Parliament and protect parliamentarians from being interfered with in any way that prevents them from doing their jobs. It was originally designed to prevent the Crown from attacking elected MPs, and it is enshrined in the Constitution.
The report also recommends changes that would make it easier for sitting MPs and senators to testify at criminal trials, an idea that comes at a time when subpoenas are being readied for senators to testify at the criminal trial of suspended Sen. Mike Duffy.
Criminal trials also loom for former senator Mac Harb and suspended Sen. Patrick Brazeau. But as the rules now stand, sitting parliamentarians who are subpoenaed as witnesses can decide against testifying, citing the shield of privilege.
Privilege means, for instance, that MPs and senators don’t have to testify while Parliament is in session, though they can be forced into a courtroom as a witness if a session hasn’t yet started 40 days after an election. The 40-day rule was created when travel across the country to Ottawa took days or weeks, rather than hours. If this right isn’t abolished, it should be radically reduced, the report says.
“The scope and exercise of this privilege should be tailored so as not to give the impression that it is being used to avoid a court process. Parliamentarians are not, and should not be seen as being, above the law,” the report says.
The 87-page report by the senators is one of the most comprehensive studies to-date on parliamentary privilege. It is being used as the foundation for a year-long study by the Senate’s rules committee that could end with the upper chamber dragging the concept of privilege into the 21st century.
“Parliamentary privilege was put in place to protect people and what they say in the places they sit and work in the Senate or the House, but it’s not to be used as a platform to attack,” said Sen. Vern White, chairman of the Senate’s rules committee. “Not everyone understands that.”
For instance, parliamentary privilege allows an MP or senator, while physically inside the Senate or House of Commons chambers, to insult or hurl mistruths about people. The same statements, if made outside, could be grounds for defamation claims in some cases.
White said parliamentary privilege “should be a shield, not a sword.”
The Senate committee report suggests the boundaries of privilege should only include those things necessary for MPs or senators to do their jobs. It rejects the idea that parliamentarians should be able to say anything they want in Parliament without worry of being sued.
A small group of senators on the upper chamber’s rules committee suggested this right should end “where there is clear evidence of malice” because such acts have “no real legitimate role in the consideration of current affairs,” nor do they “enhance the public reputation of Parliament.”
“Parliament, originally a semi-private institution, is now the centre of public democratic life. It is expected that Parliament will be transparent, accessible, and accountable to the public, and reflect contemporary norms of natural justice and procedural fairness,” the report says.
“The time is ripe to proactively re-evaluate and reconsider parliamentary privilege in the contemporary Canadian context. … By doing so the goal is to ensure the credibility and utility of parliamentary privilege in Canada in the decades to come.”
The report also rejects the idea that the privilege of free movement in the parliamentary precinct trumps security considerations that “might be necessary for the greater good of Parliament.”
House of Commons get new law clerk
Philippe Dufresne has been appointed as law clerk to the House of Commons, the government said Tuesday.
The law clerk is responsible for legal advice for MPs, and House of Commons committees such as the board of internal economy, which manages House affairs. The clerk also provides advice in drafting private members’ bills, and motions.
Dufresne, who got his first parliamentary job as a tour guide, had served since 2012 as senior general counsel and director general of the Canadian Human Rights Commission’s protection branch, according to a news release.
He also served in the Department of Foreign Affairs as a legal officer responsible for matters related to international criminal tribunals, and practised law with the Montréal office of McCarthy Tétrault.
The government said Dufresne has acted as counsel in significant cases related to parliamentary privilege.
The Commons had been without a law clerk and parliamentary counsel since Richard Fujarczuk, who took the job in 2013, resigned in February 2014 for personal reasons. Richard Dennis acted as interim law clerk.
According to a posted notice for the position last year, it pays between $147,400 and $173,300. The law clerk holds office “during pleasure,” which means the person can be removed at the discretion of the prime minister and cabinet.
– Ottawa Citizen
