Good afternoon. Before we proceed today, I am going to give my decision on the point of privilege made by Mrs. Marie-Jewell on Thursday, September 24, 1992. Where she asked the Minister of Health, the Honourable Dennis Patterson, a question relating to the process surrounding an inquiry, established pursuant to the Medical Profession Act. A board of inquiry has been duly constituted pursuant to the Act, however, the inquiry is in its early stages, and to the Chair's knowledge, no evidence has yet been given in the inquiry. As the issue of sub judice has been raised with increasing frequency in this Assembly, I, therefore, allowed debate on this issue, and advised Members that I would take some time to consider their comments, and review our rules and various parliamentary authorities, before rendering my ruling.
Rule 35(g) provides that a Member will be called to order if the Member refers to any matter that is before any quasi-judicial administrative, or investigative, body constituted by the Assembly, by or under the authority of an Act of the Assembly, or where any such person may be prejudiced in such a matter by the reference. This rule is a "codification" of the long-standing parliamentary convention prohibiting Members from commenting on matters before judicial bodies.
The purpose of the sub judice convention is twofold: to protect the interested parties from prejudice, and to maintain a separation and mutual respect between the legislative and judicial branches of government.
The sub judice convention is straightforward as it applies to criminal matters. Parliamentary precedents are consistent in barring any reference to criminal matters pending before a court. Comments by Members of criminal matters being considered by a court may result in prejudice to the accused, and the development of a public perception that the Legislature is attempting to influence the judiciary. The independence of the judicial system, and the rights of the accused, are simply too important to allow this to happen.
The rule as it applies to civil matters, particularly those pending before a quasi-judicial tribunal, is less clear and, hence, the sub judice convention becomes more difficult to apply. Beauchesne's Parliamentary Rules & Forms, 6th edition, citation 507(1), notes "that no settled practice has been developed in relation to civil cases, as the convention has been applied in some cases but not in others". Thus, the application of this ill-defined convention, as it is applied to civil matters, is left to the relevant Speaker, and considerable discretion exists in determining when, and under what circumstances, a question will offend the convention.
The discretion allowed the Speaker is necessary, for it is not possible to devise a rule which would have a general and exact application to every factual scenario that Members may pose.
While it is not possible to define exactly when sub judice is applicable, discretion should not be exercised in a vacuum, and guidelines should be adopted which will govern the exercise of the Speaker's discretion. After reviewing the relevant authorities and principles, I feel that the following principles are applicable when determining whether a question violates Rule 35(g), and the general sub judice convention:
1. The freedom of speech accorded to Members in this House is vital to the Member's ability to perform their duties, and adequately represent the needs and interest of their constituents. Freedom of speech is the cornerstone of our democratic system. The application of the sub judice rule is a fetter on a Member's freedom of speech and, hence, the convention should be restrictively interpreted. The Speaker should interfere with that freedom of speech only in exceptional cases where it is clear that to do could be harmful to specific individuals. (Beauchesne's 511)
2. The rights of litigants to a fair trial, free from the possibility of prejudice occasioned by a public debate on the very issues before the trial judge, must also be protected. Generally, Speaker comments which seek to influence parties, witnesses, or decision-makers, will be inappropriate. In these circumstances, a Member's freedom of speech must give way to the importance of preserving the independence of the decision making process. It is not enough for justice to be done, it must also be seen to be done.
3. Questions, or debate, relating to the content of a matter before a separate decision making party will, generally speaking, be inappropriate, and will be disallowed. This would include, for example, questions relating to evidence given at an inquiry, or questions designed to comment on, or influence, the very matter before a decision maker. Questions relating to procedure, or process, particularly at the pre-hearing stage, will, generally speaking, be allowed, given that they do not seek to substitute this Legislature's opinions for that of the outside tribunal.
4. While the Chair has the ultimate responsibility of determining when a matter is sub judice, all Members should share in the responsibility of protecting the independence of decision making bodies, established under Acts of this Legislature.
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.
5. Where a real doubt exists in the mind of the Chair, as to whether a question would prejudice the litigants, or the independence, of the decision making process, the Chair should exercise its discretion in favour of allowing debate on the issue, and against the application of the sub judice convention.
In applying the above principles to the question asked by the Member for Thebacha, I have not been persuaded that prejudice would result, or be seen to result, if the Member is permitted to ask a question concerning the process of establishing the inquiry. The process of giving evidence is not yet under way. Further, the Member's question concerns a procedural, process oriented issue, and is not related to the actual subject matter of the inquiry. Accordingly, should the Member wish, I will permit her to raise her question as posed on Thursday, September 24, 1992.
As indicated, this a lengthy ruling, but I felt that Members should be aware of the principles that the Chair will apply in debate when deciding on the use of the sub judice convention. I would also hope that Members would exercise their responsibility when asking questions, and to also be guided by these principles.
Item 2, Ministers' statements. Mr. Whitford.