Good afternoon. Before we begin I would like to make a ruling.

Speaker's Ruling

On Thursday, February 18, 1993, the honourable Member for Thebacha, Mrs. Marie-Jewell, raised a point of privilege in response to remarks made by the Minister of Justice, the Honourable Stephen Kakfwi. To put the issue into context, some background may be of assistance. The Member for Thebacha was questioning the Minister on the enrolment of a particular inmate at the Territorial Women's Correctional Centre in an Arctic College program in Fort Smith. The Member was interested in pursuing the Department of Justice's rationale in supporting the enrolment of the inmate in that particular Arctic College program.

The Minister responded by stating in part, "I have always been reluctant to discuss individual people and cases" and "I am becoming increasingly uncomfortable with this questioning." The Member for Thebacha then raised a point of privilege stating, in essence, that the Minister's response was an infringement on her right of freedom of speech as a Member. Mr. Kakfwi also stated in the debate which followed the point of privilege that, in his view, "the questioning should stay focused, without naming particular individuals, on the policy of the government."

The issue of naming particular individuals when asking questions is one which has been raised with growing frequency. Accordingly, I asked for a debate on the question of privilege to provide all Members with an opportunity to express their views on the matter so that I could decide if there was a prima facie case of breach of privilege. Beauchesne's Parliamentary Rules & Forms, 6th edition, citation 75, refers to the privilege of freedom of speech as being both the least questioned and the most fundamental right of a Member. Erskine May, 5th edition, page 70, states that freedom of speech is a "privilege essential to every free council or Legislature." Speakers throughout Canada have consistently upheld the importance of protecting Members' freedom of speech. The Honourable John Fraser, Speaker of the House of Commons, stated on May 21, 1987 in relation to a similar issue raised in the House, that freedom of speech was necessary because "Members of Parliament have to be able to speak freely without fear."

Clearly, the essence of democracy is that a Member must feel free to raise, in the Legislature, all issues of concerns to his or her constituents without fear of retaliation or action being taken by others. I think all Members would agree with these learned comments on the importance of this privilege.

Nonetheless, the freedom is not absolute. On some occasions, the right of a Member to speak freely on an issue must give way to other rights that the Legislature feels are worthy of protection.

One example of this is the sub judice convention, a Member may not speak on matters that are currently pending before the courts. Another example is the limitation with respect to unparliamentary language. The importance of protecting the dignity and respect of the parliamentary process is deemed to take priority over an individual member's right to free speech. These limitations on free speech are rare and, generally speaking, are well known and supported in parliamentary law.

On the facts of this particular debate, the Minister of Justice appears to be reluctant to answer the honourable Member's questions on the basis that her questions referred to an individual and as such were inappropriate.

I find that asking questions which name a particular individual is not contrary to parliamentary law or tradition in most cases.

However, I find that the honourable Member for Thebacha does not have a point of privilege. When asked a question in the House, a Minister may answer the question, take notice of the question or refuse to answer the question. There is nothing in parliamentary tradition or law which compels a Minister to respond to a question in a certain way.

Indeed, Beauchesne states, in citation 416, that "A Minister may decline to answer a question without stating the reason for refusing, and insistence on an answer is out of order."

Beauchesne goes on to state, in the same citation, that "A refusal to answer a question cannot be raised as a point of privilege." Confusion sometimes occurs because two strong parliamentary traditions are in seeming conflict; the right of the Members to freedom of speech and the right of the Ministers to refuse to answer questions.

It must be made very clear that in most cases, a Member has the right to refer to an individual by name when asking a question of a Minister. A Minister has the right to refuse to answer a question, but it must be clear that in most cases, the decision to refuse to answer a question is not based on parliamentary law and tradition. However, in the complex dynamics of the Legislative Assembly, parliamentary rules and procedures cannot be the only road map to guide us. All exchanges between Members must be tempered by consideration, common sense and civility.

While questions naming specific individuals are, generally speaking, appropriate, I must caution all Members to take care when asking questions about specific individuals, the effect of which might harm the reputation of an individual outside of this Legislature who is unable to defend herself or himself.

Members have the privilege of free speech and immunity from criminal or civil prosecution for statements made inside this Legislature. In the interests of order, common sense and courtesy, I would ask all honourable Members to be extremely careful in these matters. Our Legislative Assembly has a long and proud history of respect, civility and cooperation which has been an example to the world. I ask Members to attempt, at all times, to show respect for each other, for the Assembly and for all northerners, no matter what their circumstances. Thank you.

Orders of the day. Item 2, Ministers' statements. Mr. Todd.

I cannot give you a definitive answer to that until I talk to the Management and Services Board. I will say that after two years of following one process, changing it because of one specific tendering controversy would probably give me some difficulty. The Management and Services Board originally decided not to be involved because they felt they should be at arm's length from this procedure and let the normal government tendering policy take place. This has not been discussed by the Management and Services Board. I will take it back to the Management and Services Board.

At this point in time, the Management and Services Board has not been officially notified as to the results of that particular tendering process. I think it would be inappropriate for me to give a response to that because we have not got an official communication from the government.

I really want to emphasize to the Assembly that the process was adopted by the last Management and Services Board and continued with this Management and Services Board in order for the Management and Services Board to be at arm's length from the awarding of tenders, so that the tendering process followed would be the normal government tendering process. Up until now the Management and Services Board has not had direct involvement in that tendering process.

Thank you, Mr. Chairman. The Legislative Assembly has a total of $6.781 million. At the request before the committee of whole today is the budget for two items, the first being the funds to complete the commitment made for the new Legislative Assembly building project, the second request is for a new vehicle. Mr. Chairman, the funds for the building project are to complete its work for the additional space for the library, site work, building, finishes, fixtures, fittings for $6.766 million.

At this point in time the building is coming in within budget and on schedule. I would be pleased to answer any questions that you or your colleagues may have on the Assembly's capital estimates.

Item 4, Returns to Oral Questions. Before we go into the question period, I would like to read my ruling from yesterday.

Speaker's Ruling

Yesterday, the Honourable Stephen Kakfwi raised a Point of Order alleging the possibility that the honourable Member for the Mackenzie Delta, Richard Nerysoo, had called him a liar.

I wish first to indicate to all Members that it is often difficult for the Chair to determine immediately if a phrase used by a Member is unparliamentary. As indicated in Beauchesne's Parliamentary Rules and Forms, 6th edition, at citation 486(1), and I quote, "much depends on the tone, manner and the intention of the person speaking", end of quote. All of these factors must be viewed in the context of the general debate surrounding the alleged unparliamentary phrase. This particular incident is a good example of the difficulty the Chair sometimes has in isolating a specific unparliamentary phrase from the surrounding context of heated debate.

I have reviewed the unedited Hansard, and in particular, pages 444 to 446. Mr. Nerysoo's exact words were, and I quote "I also want to indicate to the honourable Member before he gives the impression that I have had nothing to do with the Gwich'in self-government discussions, or for that matter, the development of the proposal that has been before the government is absolutely a lie," end of quote. Mr. Nerysoo did not call Mr. Kakfwi a liar or refer to anything he had said as a lie. However, Mr. Nerysoo did anticipate that the Minister would respond to his question with a response, which to him would be a lie. It has always been unparliamentary to suggest that a Member has deliberately lied and deceived the House. Beauchesne's contains many citations to this effect. I refer Members to Beauchesne's 6th edition, citation 494, which states that, "it is not unparliamentary temperately to criticise statements made by Ministers as being contrary to the facts, but no imputation of intentional falsehood is permissible." Accordingly, the word "lie" would suggest an intentional deceit, which has always been ruled unparliamentary. Furthermore, I rule that to anticipate an intentional deceit, a lie by a Member is also unparliamentary. The comment was almost assuredly made by Mr. Nerysoo in the heat of the debate and was most likely totally inadvertent. However, I feel that the implications contained in the use of the word "lie" cannot be accepted. Accordingly, I will ask Mr. Nerysoo to withdraw the word "lie."

In reviewing the unedited Hansard, however, I also note that the debate leading up to the unparliamentary language could have caused some degree of provocation. Mr. Kakfwi said, and I quote, "To suggest that I do not know what his constituency is saying is a bit irresponsible." Statements such as this can cause negative reactions. Debate in the House may become heated and Members may say things that, upon reflection, might have been phrased in a different way. I ask all Members to be careful and respectful of the other Members of this House when engaged in debate. It is fundamental to the democratic process that all Members be able to share their different points of view in a reasonable and rational manner and that the dignity of that debate and of the Legislature always be respected and preserved.

Mr. Nerysoo.

Thank you very much, Mr. Chairman. Mr. Chairman and colleagues, I am pleased to present the operations and maintenance estimates for the Legislative Assembly.

This is the first full year of operational budget that I have had to present as Speaker to the 12th Legislative Assembly. Budgets for the Legislative Assembly are driven by the Assembly itself. The Management and Services Board attempts to respond to the legitimate needs of Members and committees of the Legislative Assembly.

We see our role as providing the Members the tools they need to serve their constituents. The major factors that have affected the 1992-93 main estimates are: the increase in sessional sitting days; the increase in committee days; the extent of activities and meetings of standing committees outside of Yellowknife; increases to the Member's constituency living allowances, and constituency work budgets, by the annual legislative adjustment; decrease to the completion of the activities surrounding the general election; and, a zero increase to Members' salaries and indemnities.

Mr. Chairman, the estimates for the Assembly, once all the factors have been included, have produced a hold the line budget. There is no increase in person years, and a total of eight percent increase in O and M.

I would like, at this time, to recognize the work of the Members of the Management and Services Board, who have been vigilant in ensuring that the services that we provide are performed in an efficient, effective and economic manner.

Mr. Chairman, this concludes my brief opening remarks. I would be pleased to answer any questions as to the detail of the Assembly estimates.

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.

Thank you.

Item 2, Ministers' statements. Mr. Whitford.

Good afternoon. Before we proceed with Ministers' statements, I would like to give two rulings that came from last week's Assembly meetings.

Speaker's Ruling

On June 25, on page 2756 of the unedited transcript, the Minister of Education, under the item "Returns to Oral Questions" provided what he stated was a further return to Question O579-12(2). In making his return, the Minister of Education indicated that he had another return, and I quote, "Mr. Speaker, I have another return, which is somewhat unusual," and then proceeded to give his return. I indicated after the return was concluded that this concept of a further return was something not addressed by the rules.

In reviewing the original question, which was asked by Mr. Arvaluk on June 19, the Minister of Education did answer the question, and in his response indicated the following, and I quote, "I will get back to the Member with detailed information as to how the assessment is being conducted." I am aware that the past practice of some Ministers is to give a partial answer to a question and offer to provide further information. This has been done in two ways: by a return to oral question and by letter directly to the Member concerned. The problem that arises is that the official House records indicate that the question has been answered, as the Minister did not take it as notice. Taking a question as notice indicates that the Minister will provide a return at a later date.

I do not wish to curtail the flow of information, but would like the official records of the House to reflect the disposition of an oral question. The concept of a further return to an oral question should be addressed, so I would like to inform the House that I have referred this matter to the standing committee on rules, procedures and privileges to consider while they are undertaking their comprehensive review.

Speaker's Ruling

I have a second ruling. The honourable Member for Thebacha, Mrs. Marie-Jewell, raised a point of order on June 26 and it is contained on page 2879 of the unedited transcript. The Member, Mrs. Marie-Jewell, indicated she was not challenging the decision made earlier by the Deputy Speaker, but was seeking clarification from the Minister of Education during question period.

In reviewing the transcripts that lead up to the Deputy Speaker indicating that the matter was sub judice -- that means a matter that is before the courts -- the honourable Member's questions prior to the Chair's remarks on sub judice were in order. The questions did not become out of order when the Member for Thebacha had determined from the Minister of Education that, in fact, the matter was under appeal. It was at that point the Chair did indicate that any further questions directly related to the court case would be out of order.

Therefore, the Chair acted at the precise moment the House was advised that the matter was under appeal, thus ruling out any further questions. I find that the Member for Thebacha did not have a point of order, and, in fact, it was Mrs. Marie Jewell's questions that assisted the Chair in ruling on sub judice. I note that at that point, no further directly-related questions on the court case were posed. Thank you.

We can now move to orders of the day for Monday, June 29, 1992. Item 2, Ministers' statements. Mr. Pollard.